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Court of Appeal, Fourth District, Division 1, California.

SUBSEQUENT INJURIES FUND of the State of California, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California and Nick Baca, Respondents.

Civ. 9334.

Decided: February 10, 1969

Thomas C. Lynch, Atty. Gen., and Anthony M. Summers, William L. Zessar, Deputy Attys. Gen., for petitioner. Everett A. Corten, San Francisco, and Nathan Mudge, Los Angeles, for respondent Workmen's Compensation Appeals Board.


The Subsequent Injuries Fund asks this Court to annul a Workmen's Compensation Appeals Board award against the Fund on the ground the statute of limitations bars it.


On December 1, 1959 Nick Baca sustained an industrial back injury. On March 1, 1961, he sustained another back injury which forced him to quit his plastering occupation. He received voluntary temporary disability payments from March 2, 1961 to February 1, 1963. On April 24, 1963, Baca filed two separate benefits applications, one for each injury. On December 4, 1964, findings and award were made in the cases, fixing permanent disability of 31 1/2% for the 1959 injury and 38% for the 1961 injury, a total of 69 1/2%.

On February 28, 1966, one day short of 5 years following the second injury, Baca petitioned to reopen the second injury proceeding, alleging new and further disability. The named defendants continued to be only Baca's original employer and its insurance carrier. Following a denial, the Board reconsidered and on May 17, 1967, increased the second injury disability to 53%, totaling 84 1/2%.

On June 2, 1967, Baca petitioned for subsequent injury benefits, joining for the first time the Subsequent Injuries Fund as a defendant, and claimed the combined disabilities exceeded 70%. The Board rejected the Fund's contention the statute of limitations barred the petition and made a lifetime award against the Fund.


Although construing the workmen's compensation laws liberally in favor of Baca (see Granado v. Workmen's Comp. App. Bd., 69 A.C. 408, 414, 71 Cal.Rptr. 678, 445 P.2d 294), we are forced, nevertheless, to the conclusion the statute of limitations bars his claim.

No express statutory provisions deal with time limitations for institution of proceedings against the Subsequent Injuries Fund. (Subsequent, etc., Fund v. Ind. Acc. Com. [Patterson], 39 Cal.2d 83, 89, 244 P. 2d 889.) It has been held, however, limitation periods which apply to proceedings for compensation against the employer apply to proceedings against the Fund. (Subsequent Injuries Fund of State v. Industrial Acc. Com. [Ferguson], 178 Cal.App.2d 55, 58, 2 Cal.Rptr. 646; State of California Subsequent Injuries Fund v. Ind. Acc. Com. [Busch], 198 Cal.App.2d 818, 824, 18 Cal.Rptr. 458.)

Two limitations periods are involved: Labor Code, sections 5405 and 5410. The time limitation on the original jurisdiction of the Board, when proceedings must be started, is provided by Labor Code, section 5405: an applicant must begin proceedings within one year from either the date of injury (Lab. Code, § 5405(a)), the date of last receipt of disability payments (Lab. Code, § 5405(b)) or the date of last medical benefits furnished by the employer (Lab. Code, § 5405(c)). The time is extended by voluntary payments or benefits described in Labor Code, sections 5405(b) and 5405(c). (Royal Indem. Co. v. Industrial Acc. Com., 239 Cal.App.2d 917, 921, 49 Cal.Rptr. 224.) The extension is explained in State of Cal., Subsequent Injuries Fund v. Industrial Acc. Com. [Clubb], 155 Cal.App.2d 288, 290, 318 P.2d 34, 35:

‘There is good reason for tolling the running of time against a claim for compensation from an employer for medical treatment or for disability payments during the time, if any, that the employer voluntarily furnishes such treatments or makes such payments. He should not be suffered, by rendering such service, to lull the employee into a false sense of security and then, more than a year from the injury, invoke the statute. Such an injustice section 5405 effectively prevents.’

When payments have been voluntarily made or benefits voluntarily furnished, the Board may make a decision on any original claim regardless of the number of years after injury, as long as the proceeding is filed within one year after payments or benefits have ceased. (Subsequent Injuries Fund of State v. Industrial Acc. Com. supra, [Ferguson], 178 Cal. App.2d 55, 58, 2 Cal.Rptr. 646; State of California Subsequent Injuries Fund v. Ind. Acc. Com. supra [Busch], 198 Cal. App.2d 818, 824, 18 Cal.Rptr. 458.)

Since the same limitations period applies to claims against the employer and the Fund, the time to bring a claim against the Fund is extended under circumstances which extend the time to bring a claim against the employer, and the Board may determine the liability of both. (State of California, Subsequent Injuries Fund v. Ind. Acc. Com. supra [Busch], 198 Cal.App.2d 818, 829, 18 Cal.Rptr. 458.)

Having started an original proceeding before the Board, however, an applicant must present all claims for new and further disability within the period of the Board's continuing jurisdiction—five years from date of injury (Lab. Code, § 5410). When an employee does not present his claim against the Fund at the time the original proceeding is maintained, his claim against the Fund is one for new and further disability and is subject to the operation of Section 5410 (Subsequent, etc., Fund v. Ind. Acc. Com. supra [Patterson], 39 Cal.2d 83, 91, 244 P.2d 889). Thus an applicant, having once sought normal compensation (medical benefits or disability payments) may later apply for subsequent injury benefits (State of California, Subsequent Injuries Fund v. Ind. Acc. Com. supra [Busch], 198 Cal.App.2d 818, 821, 18 Cal.Rptr. 458); but such a claim invokes the Board's continuing jurisdiction and must be made within 5 years of the date of injury. The Supreme Court says:

‘* * * Section 5410 is applicable to this case [and] the fund can be joined at any time so long as the proceeding against it (to collect subsequent injury compensation) is commenced within five years from the date of the subsequent injury. The operation of section 5410 is, of course, dependent upon the commencement of a proceeding to collect normal compensation. * * *’ (Subsequent, etc., Fund v. Ind. Acc. Com. [Patterson], 39 Cal.2d 83, 92, 244 P.2d 889, 894.) (Italics ours.)

When a proceeding has been filed with the Board a claim against the Subsequent Injuries Fund filed more than five years after injury is not timely and is barred (State of Cal., Subsequent Injuries Fund v. Industrial Acc. Com. [Clubb], 155 Cal.App.2d 288, 318 P.2d 34; Labor Code, § 5404).

Here Baca's claim against the Fund was not timely. He filed his petition to reopen one day before 5 years after his second injury. He should have made the Fund a defendant no later than that time. Good practice dictates joining the Fund whenever permanent disability exceeding 70% is anticipated, thus enabling the Board to determine at one time not only the extent of the disability, but who should compensate the applicant (Subsequent Injuries Fund of State v. Industrial Acc. Com. supra [Ferguson], 178 Cal.App.2d 55, 60, 2 Cal.Rptr. 646).

The Board unmeritoriously claims until Baca's disability rating was increased from 69 1/2% he did not know nor could be have known he might obtain Fund benefit, which becomes available when permanent disability reaches 70% or more (Lab. Code, § 4751). Instead the issue is whether the claim was filed within the 5 year period. The Board's continuing jurisdiction ended 5 years after the second injury, and a claim against any defendant not joined within that time is barred (Lab.Code, §§ 5410, 5404).

The award is annulled.

GERALD BROWN, Presiding Justice.

COUGHLIN and WHELAN, JJ., concur.

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