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Court of Appeal, Second District, Division 4, California.

SUBSEQUENT INJURIES FUND of the State of California, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California and Helen L. Talcott, Respondents.

Civ. 33209.

Decided: January 30, 1969

Thomas C. Lynch, Atty. Gen., by William L. Zessar, Los Angeles, for petitioner. Everett A. Corten, San Francisco, and Sheldon M. Ziff, Los Angeles, for respondent Workmen's Compensation Appeals Bd. No appearance by respondent Helen Talcott.

Petitioner seeks review and annulment of an award of the Workmen's Compensation Appeals Board to an applicant of compensation from the subsequent injuries fund as provided by Labor Code sections 4750–4755.

The sole question is whether the claim is barred by the statute of limitations.

On August 2, 1960, applicant sustained an injury to her right lower extremity when she slipped on the floor entering her place of employment. On November 1, 1960, she filed a claim against the employer, the insurance carrier having notified her that it was rejecting her claim but would pay hospital and medical expenses through August 19th. On May 21, 1961, award issued for medical treatment and temporary disability indemnity from August 3, 1960 through March 17, 1961 and thereafter during the continuance of disability or until further order; jurisdiction to determine permanent disability was expressly reserved.

Liability under the award was terminated as of October 31, 1962 by order dated February 4, 1963, applicant having returned to work. The carrier continued to furnish medical treatment. On November 13, 1963, the carrier voluntarily resumed payments of temporary disability indemnity which it continued until August 2, 1965 at which time, five years from the date of injury, liability for temporary disability indemnity terminated pursuant to the provisions of Labor Code section 4656. The carrier then began payments of permanent disability indemnity on a weekly basis.

On July 17, 1963, applicant had requested a hearing on the ‘issue of disability’. Several hearings were noticed but cancelled by stipulation of the parties. On January 24, 1966, applicant requested hearing which was had on April 15, 1966. On June 23, 1966, supplemental award issued for permanent disability indemnity, based on a rating of 64 1/2% after apportionment, payable at the rate of $52.50 per week beginning August 10, 1965, with credit to defendant carrier for all sums paid on account thereof, together with further medical treatment.

On July 29, 1966 applicant filed ‘Amended Application for Subsequent Injuries Fund Benefits.’ The matter proceeded to hearing and award over objection of the Fund. The referee concluded that the claim was timely filed within the provisions of Labor Code section 5405 because it was filed within one year after the carrier had voluntarily paid compensation. The appeals board granted reconsideration ‘for further study.’ On May 3, 1968 the board, sitting in bank, affirmed the award by unanimous decision.

The chapter of the Labor Code which deals with ‘Limitations of Proceedings' (Div. 4, Pt. 4, Chap. 2, §§ 5400–5412) does not contain a provision which specifically prescribes time limitations for proceedings for the recovery of subsequent injuries fund benefits. In a series of cases the courts have considered the issue of what statute governed in the particular fact situation. As a result of these rulings it has been generally understood that such a claim must be related to a proper proceeding against the employer and the rules have been summarized as follows: (1) If no application for normal benefits has been filed, the time for filing an application for subsequent injuries fund benefits is governed by the statute applicable to claims for normal benefits, i. e., Labor Code section 5405 (State of California Subsequent Injuries Fund v. Ind. Acc. Com. (Busch) (1962), 198 Cal.App.2d 818, 18 Cal.Rptr. 458; Subsequent Injuries Fund of the State v. Ind. Acc. Com. (Ferguson) (1960), 178 Cal.App.2d 55, 2 Cal.Rptr. 646; (2) If a timely claim for normal benefits has been filed, a claim for subsequent injuries fund benefits is treated as a claim for new and further disability which, under Labor Code section 5410, may be filed within five years from the date of injury. (Subsequent Injuries Fund, State of California v. Ind. Acc. Com. (Pranzitelli) (1957), 151 Cal.App.2d 606, 312 P.2d 78; Subsequent Injuries Fund v. Ind. Acc. Com. (Patterson) (1952), 39 Cal.2d 83, 244 P.2d 889.) We note that the decisions of the Court of Appeal were followed by petitions to the Supreme Court and in each case a hearing was denied.

The cited cases proceed on the basic premise that the claim against the Fund is a claim for permanent disability compensation since, under Labor Code section 4751, it is a claim for compensation for the ‘remainder of the combined permanent disability existing after the last injury.’ Labor Code section 5405 provides that the period within which proceedings for temporary and permanent disability indemnity and medical and hospital treatment must be commenced is one year from (a) the date of injury; or (b) the expiration of any period covered by the payment of disability compensation; or (c) the date of last furnishing of any benefits for medical and hospital treatment. Thus voluntary payments will toll the statute during the continuation thereof; however, the period commences to run again upon the stoppage of payments (Royal Indem. Co. v. Industrial Acc. Com. (Clutter) (1966), 239 Cal.App.2d 917, 924, 49 Cal.Rptr. 224) except that the appeals board has jurisdiction to hear and determine any claim for ‘new and further disability’ arising from the injury within five years from the date of injury under Labor Code section 5410.

Labor Code section 5410 states, in pertinent part: ‘Nothing in this chapter shall bar the right of any injured employee to institute proceedings for the collection of compensation within five years after the date of the injury upon the ground that the original injury has caused new and further disability. The jurisdiction of the appeals board in such cases shall be a continuing jurisdiction at all times within such period.’ (Emphasis added.) Permanent disability is considered as ‘new and further disability’ within the meaning of the section. (Standard Rectifier Corp. v. Workmen's Comp. App. Bd. (Whiddon) (1966), 65 Cal.2d 287, 290, 54 Cal.Rptr. 100, 419 P.2d 164.) The cited case states (p. 290, p. 102 of 54 Cal.Rptr. p. 166 of 419 P.2d): ‘The rule as established by the cases is that before an employee is entitled to the advantage of the five-year period for claiming benefits for new and further disability under section 5410, he must have been furnished workmen's compensation benefits by the employer either voluntarily or pursuant to a commission award. [Citations.]’

The four cases above cited do not, however, control the case at bench. Their holdings go no further than to permit filings against the Subsequent Injuries Fund under one of the two sets of circumstances therein involved. Here we are faced with the issue: may a claimant, having once instituted a timely proceeding against the employer, thereafter bring in the Fund at a date more than five years after the injury but within one year after the last payment made under an award against the employer?1 We have found only one case that deals with that factual situation—State of California, Subsequent Injuries Fund v. Ind. Acc. Com. (Clubb) (1957), 155 Cal.App.2d 288, 318 P.2d 34. In that case the court held that the five-year period of section 5410 limited the employee's right to file, and rejected the applicability of section 5405.

But we conclude that Clubb is not controlling in the case at bench. The decision in Clubb was based, in substantial part, on the fact that the employee there was aware, from the beginning, of the existence of the earlier disability on which the Fund's liability depended and that he was, therefore, equitably obligated to have joined the Fund as a party to his proceeding at least within the five-year period of section 5410.2 But the record herein before us contains no such elements of inequity. So far as appears, the present employee was not charged with notice that her disability would be apportioned, with part attributed to the previous disability, until the supplemental award issued on June 23, 1966. Her proceeding against the Fund followed promptly, one month later.

We are enjoined to remember that the limitations provisions in Workmen's Compensation law must be liberally construed in favor of the employee (Fruehauf Corp. v. Workmen's Comp. App. Bd. (1968) 68 Cal.2d 569, 68 Cal.Rptr. 164, 440 P.2d 236). We think that the proper rule is that (absent the special circumstances present in Clubb) an injured employee may present his claim against the Subsequent Injuries Fund if he meets either the one-year test of section 5405 or the five-year test of section 5410. If the employee files a timely claim against his employer, the law and the cases give him a minimum of five years from the date of injury within which to join the Fund. But if, as here, the employee is receiving benefits, whether under an award or voluntarily, and is contending, in good faith, that his disability is attributable solely to the industrial injury occurring while in that employment, there is no reason to expect, much less to compel, him to join a party which he has, as yet, no reason to regard as liable. To institute such a rule under those circumstances would merely increase—ordinarily without purpose—the already heavy burden of cases before the board and the burden on the staff and counsel for the Fund. No public policy impels such a result; policy, in fact and in law, inclines against it.

The award is affirmed.


1.  Actually, in the case at bench, the claim against the Fund was filed not only within one year after the last voluntary payment by the employer's carrier (which was in August of 1965) but four years before the payments under the ultimate supplementary award were to cease.

2.  ‘It happens, too, that on the very day that he applied for adjustment of his claim in respect to the spray poisoning the employee filed a separate application against the employer and its carrier in respect to the prior injury, the eye injury. As the reason for the latter, he said, in the application, that he ‘thought it advisable to present this matter for hearing at same time, for possible adjustment.’ Quite likely at that very moment, certainly during the hearings which ensued and long before the expiration of the five-year period, the employee must have become aware of facts which put him upon notice that he might have a claim against the Subsequent Injuries Fund. * * *' (State of Cal., Subsequent Injuries Fund v. Ind. Acc. Com. (Clubb) (1957), 155 Cal.App.2d 288, 292, 318 P.2d 34, 36.)

KINGSLEY, Associate Justice.

FILES, P. J., and WAPNER, J. pro tem.,* concur.