SUBSEQUENT INJURIES FUND v. WORKMEN COMPENSATION APPEALS BOARD

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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 Archie Woodburn, Respondents.

Civ. 9343.

Decided: February 10, 1969

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

OPINION

The Subsequent Injuries Fund asks us to review a Workmen's Compensation Appeals Board's order that Archie Woodburn's claim against the Fund is not barred by the statute of limitations. The order is incorrect and must be annulled.

FACTS

From March 6, 1957 to December 31, 1958, Woodburn worked at the Orange County General Hospital laundry. While there he was exposed to and contracted tuberculosis. His illness was diagnosed as tuberculosis (of industrial origin) as early as January 7, 1959. On November 30, 1964 he filed an application for benefits with the Board against the hospital and its insurance carrier, State Compensation Insurance Fund. Between the time of diagnosis and filing the application, Woodburn received benefits from State Compensation Insurance Fund.

Woodburn was examined by a Board appointed independent examiner who concluded only part of his disability was attributable to tuberculosis. The remainder was due to pre-existing non-industrially caused emphysema. After hearing, on December 11, 1965, the Board determined the industrial injury caused 65ermanent disability. On January 18, 1967, Woodburn petitioned for subsequent injuries fund benefits. The Subsequent Injuries Fund asserted the statute of limitations bars the claim. On May 29, 1968, the Board found the claim against the Fund was not barred and ordered the matter returned to the trial calendar.

DISCUSSION

Woodburn's original application for benefits was not filed until almost 6 years after tuberculosis was diagnosed. Presumably, the original claim was timely either because benefits had not been terminated or the claim was filed within one year after benefits ceased. (Lab.Code, § 5405; Royal Indem. Co. v. Industrial Acc. Com., 239 Cal.App.2d 917, 921, 49 Cal.Rptr. 224.)

Woodburn filed his claim against the Fund more than 2 years after his original application for benefits and more than 8 years after learning he had industrially caused tuberculosis. In the claim against the Fund barred by the statute of limitations? Yes.

The applicable statute of limitations law in actions against the Subsequent Injuries Fund is stated in Subsequent Injuries Fund v. Workmen's Compensation Appeals Board [Baca], Cal.App., 75 Cal.Rptr. 112; filed today, and cases cited there. This case differs from the Baca case because here no proceeding was begun for more than 5 years after Woodburn's injury.

Two cases are directly in point, Subsequent Injuries Fund v. Industrial Acc. Com. [Ferguson], 178 Cal.App.2d 55, 2 Cal.Rptr. 646, and State of California, Subsequent Injuries Fund v. Industrial Acc. Com. [Busch], 198 Cal.App.2d 818, 18 Cal. Rptr. 458, where proceedings were first begun more than 7 and 5 years following industrial injuries. But in each case between the time of injury and application for benefits: (1) benefits had been voluntarily furnished to the employee; (2) an application for benefits was filed within one year after benefits ceased; and (3) the application included a claim against both the employer and the Subsequent Injuries Fund.

Ferguson and Busch held the claims against the employer and the Fund were timely filed under Labor Code, section 5405 because filed within one year after benefits ceased.

The time to file an original proceeding is extended to a period greate than one year after the industrial injury when benefits have been voluntarily furnished to the injured employee (Royal Indem. Co. v. Industrial Acc. Com., supra, 239 Cal.App.2d 917, 921, 49 Cal.Rptr. 224.) Since the limitations periods for actions against the Fund are the same as those against the employer (Subsequent Injuries Fund v. Industrial Acc. Com. [Ferguson], supra, 178 Cal.App.2d 55, 58, 2 Cal.Rptr. 646), the time to file a claim against the Fund is extended under the same circumstances which extend the time to file a claim against the employer (State of California, Subsequent Injuries Fund v. Ind. Acc. Com. [Busch], supra, 198 Cal.App.2d 818, 829, 18 Cal.Rptr. 458).

Thus, regardless of the number of years after injury, if a claim is timely filed under Labor Code, section 5405, the Board may determine the liability of the employer and the Fund together. Such a determination is an exercise of the Board's original jurisdiction (State of California, Subsequent Injuries Fund v. Ind. Acc. Com. [Busch], supra, 198 Cal.App.2d 818, 833–834, 18 Cal.Rptr. 458).

The Board has continuing jurisdiction for 5 years after date of injury, and during that period claims for new and further disability may be determined (Lab.Code, § 5410).

Where, as here, a proceeding is begun more than 5 years after injury, the Board, after issuance of findings and award (and after reconsideration, if any) is without jurisdiction to entertain further proceedings. The law is clearly stated by Hanna in ‘The law of Employee Injuries and Workmen's Compensation’, Vol. 1, at p. 82:

“Thus claims may be presented and adjudicated more than five years after injury (1) under the provisions of Labor Code section 5405, where benefits have been voluntarily furnished to a date less than one year preceding the date of filing claims; * * *. Where a decision is issued under Labor Code section 5405 more than five years after injury, no continuing jurisdiction arises or remains thereafter. The Commission in such a case exhausts all of its jurisdiction, both original and continuing, with the issuance of the first decision and any reconsideration thereof.”

Woodburn's petition for subsequent injuries benefits is barred because the Board exhausted all jurisdiction after its decision December 16, 1965. That proceeding, brought more than 5 years after injury, was nevertheless timely because filed within one year after benefits ceased. No jurisdiction remained in the Board to determine any further claims.

The order is annulled.

GERALD BROWN, Presiding Justice.

COUGHLIN and WHELAN, JJ., concur.