Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for writ of review. Order annulled.
Ruth E. Stringer, Acting County Counsel, and Sandra Grajeda, Deputy County Counsel for Petitioner.
No appearance for Respondent Workers’ Compensation Appeals Board.
No appearance for Respondent Robert Schroeder.
OPINION
MILLER J.
Petitioner County of San Bernardino (County), as the affected employer, seeks review and annulment of an order of the Workers’ Compensation Appeals Board (Board) affirming the award in favor of applicant Robert Schroeder (applicant). We agree with County’s contentions that applicant’s continuous trauma claim is barred by the statute of limitations; that petitioner’s petition to reopen may be untimely; and that the Board improperly rated all of applicant’s claims together. Accordingly, we annul the order.
FACTS
Applicant was employed as a firefighter and later as a battalion chief by the County of San Bernardino from 1969 until November 7, 1999, his last day on the job. He filed for a disability retirement on March 25, 2001.
Applicant had sustained injuries to his lower back in the 1980’s and claimed a specific injury to his low back on July 5, 1990. He did not file a claim until March 28, 2003, however County concedes that this was a “window claim” which conferred jurisdiction and that it cannot raise a statute of limitations defense.
Applicant sustained a specific injury to his left upper arm and neck on July 28, 1996, and another injury to his left knee on New Year’s Eve 1998 (December 31, 1998, or January 1, 1999). County admitted both injuries were work related.
According to the medical report of Dr. Portwood, the injury to the left knee became permanent and stationary on January 18, 2000, and applicant received a stipulated award of six percent on February 23, 2001. Applicant filed a petition to reopen on January 10, 2003, alleging a new and further disability with respect to this injury.
In May 2002, applicant filed an application claiming injury to his back, neck, and left knee as a result of continuous trauma over the course of his entire career.
County sought reconsideration following an award made by the workers’ compensation administrative law judge (WCJ). The Board issued an opinion and order granting reconsideration in which it amended the date of injury for the continuing trauma claim to November 7, 1999, applicant’s last day on the job, but rejected County’s remaining contentions.
County now seeks to set aside the award, contending that: (1) the Board erred when it concluded that applicant’s claim for continuous trauma was not barred by the statute of limitations; (2) substantial evidence does not support the finding of continuous trauma injury; (3) the Board erred in finding that the physician’s opinion regarding apportionment was not supported by substantial evidence; (4) the petition to reopen the claim with respect to the left knee injury should be dismissed; and (5) the Board erred in concluding that all cases should be rated together.
DISCUSSION
A. Standard of Review.
In reviewing workers’ compensation orders, “substantial evidence” is determined in light of the whole record. (LeVesque v. Workmen’s Comp. App. Bd. (1970) 1 Cal.3d 627, 637.) The employee bears the burden of establishing that the injury was sustained in the course of employment, although he need only show the reasonable probability of industrial causation. (Patterson v. Workers’ Comp. Appeals Bd. (1975) 53 Cal.App.3d 916, 921.) Factual determinations of the Board must be upheld if there is substantial evidence to support them and the opinion of one doctor, though inconsistent with other medical opinions, normally constitutes substantial evidence. (Ibid.)
B. Cumulative Trauma Claim.
Under Labor Code section 5405, an applicant has one year from the date of injury to file a workers’ compensation claim. The statute of limitations is the same for cumulative trauma cases except that the date of injury is the date on which the employee first suffered disability from the disease or injury and, either knew, or in the exercise of reasonable diligence should have known, that the disability was caused by employment. (Lab. Code, § 5412.)
Here, applicant filed his claim for continuous trauma two and one-half years after the last day he worked. County argues that his claim was not timely and is barred. However, the WCJ dismissed County’s argument stating that it had failed to establish the elements required for the defense under Labor Code sections 5405 or 5410. The latter statute provides that an injured worker has five years from the date of the original injury to claim new and further disability. The WCJ noted that the applicant continued to work for the same employer with ongoing treatment and that County had in its possession reports of medical treatment to the area of his body involved herein. The WCJ cites County of Los Angeles vs. Workers’ Comp. App. Bd. (Duran-Dingillo)(1999) 64 Cal.Comp.Cases 1075. In that case, the Board held that the defendant employer was estopped from raising the statute of limitations defense when, among other things, (1) the applicant’s May 15, 1992, injury was witnessed by a supervisor; (2) the supervisor did not follow the defendant’s internal procedures for handling witnessed industrial injuries; (3) the applicant continued working, did not lose time off work, and did not seek medical treatment until 1994 for this injury; (4) medical opinion connected the applicant’s 1994 symptoms with her 1992 injury; and (5) the applicant did not know about the statute of limitations and reasonably believed, based on prior 1985 industrial injury, that she could request medical treatment when needed.
In a similar vein, the WCJ further noted that if the employer has knowledge of the fact of injury, but fails to apprise the injured worker prior to the expiration of the five-year statute, the defendant may be estopped from asserting the statute of limitations defense.
Here, however, it cannot be found that County did not follow the appropriate procedures or that it had knowledge of applicant’s low back injury. County provided benefits for the 1990 back injury as well as the 1996 and 1998 injuries. There is nothing in the record to show that County had knowledge or notice of facts from which it could or should have recognized with respect to his cumulative injury claim that applicant was injured on the job or that his condition might have arisen out of the employment. Moreover, applicant was not an unsophisticated person with respect to workers’ compensation procedures.
Nor can it be found that applicant had no reason to link his back problems to his work until apprised by a physician of a possible connection. While we generally defer to the fact finders on issues such as this (Garza v. Workmen’s Comp. App. Bd. (1970) 3 Cal.3d 312), applicant’s testimony indicates that he believed that his ongoing back problems were industrially caused.
It is undisputed that the application was filed two and one-half years after the last date of exposure, i.e., the last day applicant worked on November 7, 1999. Applicant has never offered any explanation for his failure to file a claim earlier. Furthermore, there is no basis in the record to find estoppel against the County. Thus, County has demonstrated a valid statute of limitations defense with respect to the cumulative trauma claim, and the matter must be remanded to the Board for further proceedings consistent with this opinion. Given this conclusion, it is not necessary for us to address County’s related challenges to the findings of apportionment and the sufficiency of the evidence.
C. Petition to Reopen.
County argues that applicant himself stated at trial that his left knee had not gotten worse from the time Dr. Portwood found his condition permanent and stationary in January 2000, until six months or so prior to trial (January 2006), which was outside the five-year jurisdictional period for a petition to reopen under Labor Code section 5410. While there is some conflicting evidence in the record upon which the WCJ might have relied, the latter’s report and recommendation to the Board did not directly address this issue, and the Board’s decision merely adopted and incorporated that report. Accordingly, we find that Board’s decision failed to comply with Labor Code section 5908.5, requiring it to state the evidence relied upon and specify in detail the reasons for the decision. (Twentieth Century-Fox Film Corp. v. Workers’ Comp. Appeals Bd. (1983) 141 Cal.App.3d 778, 784; see generally 2 Hanna, Cal. Law of Employee Injuries and Workers’ Compensation (rev. 2007) §§ 28.34, p. 28-29, 28.36[2][a], p. 28-33, 34.17[1], p. 34-29.) The purpose of this rule is to assist the reviewing court in meaningful judicial review by providing the court with the evidence and the principles relied on by the Board. We lack such assistance here. The Board’s failure to comply with Labor Code section 5908.5 to set forth its reasoning in detail has been held a sufficient basis to annul the decision and remand for a statement of reasons. (LeVesque v. Worker’s Comp. App. Bd., supra, 1 Cal.3d 627; Painter v. Workers’ Comp. Appeals Bd. (1985) 166 Cal.App.3d 264, 268.) It is inappropriate to review the substantive issues in light of this failure. (Id. at p. 272.)
D. Disability Rating.
The WCJ determined separate awards of permanent disability were not required under the guidelines set forth in Parker v. Workers’ Comp. Appeals Bd. (1992) 9 Cal.App.4th 1636 (Parker), but rather that all of applicant’s disabilities could be rated together because they all shared at least one common date of injury.
Parker stated that “[w]here successive injuries to the same part of the body become permanent and stationary at the same time, the injured employee is entitled to a PD [permanent disability] award based upon his or her combined disability at the PD rates applicable at the time the last injury of the successive injuries giving rise to such benefits occurred. [Citations.]” (Parker, supra, 9 Cal.App.4th at pp. 1638-1639, fn. omitted.) This statement is known as the Wilkinson rule based on Wilkinson v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 491, 494 and has been used as a basis to limit the use of apportionment and expand the issuance of combined compensation awards.
Since Wilkinson, there have been efforts to expand that doctrine to include different parts of the body when injuries became permanent and stable at the same time, so that the injured employee might also receive one award for a combined disability under those circumstances. In Parker, however, the Court of Appeal rejected application of the Wilkinson rule to situations where the injured employee has sustained successive, specific industrial injuries to different parts of the body, which is the situation in the instant case. Parker declared that the Supreme Court has mandated that application of Wilkinson to a rating situation “requires successive injuries to the same part of the body.” (Parker, supra, 9 Cal.App.4th at p. l647.) Here, applicant had injuries to the right and left knees, back, and arm and the associated disabilities cannot be rated together simply because they share one date of injury. Thus, the order must be annulled on this basis as well, and the matter remanded to the Board for further proceedings consistent with this opinion.
We concur: GAUT Acting P. J., KING J.