CITY AND COUNTY OF SAN FRANCISCO v. WORKMEN COMPENSATION APPEALS BOARD

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

CITY AND COUNTY OF SAN FRANCISCO, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California and Hugh Joseph Quinn, Respondents.

CITY AND COUNTY OF SAN FRANCISCO, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California and James B. Page, Respondents.

CITY AND COUNTY OF SAN FRANCISCO, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California and William G. Paul, Respondents.

Civ. 25725, 25832 and 25876.

Decided: April 30, 1969

Thomas M. O'Connor, City Atty., Donald J. Garibaldi, Deputy City Atty., San Francisco, for petitioner. Everett A. Corten, Rupert A. Pedrin, San Francisco, for Workmen's Comp. Appeals Bd.

In the first of these three similar cases, the City and County of San Francisco seeks review and annulment of a determination by the Workmen's Compensation Appeals Board that the application of Hugh Joseph Quinn, a fireman already retired for disability, was not barred by the statute of limitations (Lab.Code, § 5405).

Quinn entered city employment in 1927.   On June 20, 1950 and again on November 16, 1950 Quinn sustained injury in the course and scope of his work as a fireman.   City employees are entitled to disability and retirement rights under section 169 of the charter.   Specifically, it is provided that any member of the fire department who suffers a disabling injury in the performance of duty may be retired from service on the monthly pension he would receive upon retirement for longevity in service.   However, if disability ceases, the pension also ceases;  the retired employee must then be restored to service in the rank he last occupied before retirement.   Quinn was retired on August 2, 1956 for disability resulting from residual effects of his 1950 injuries.   Since that date Quinn has been receiving from the city the designated monthly pension.   However, no medical treatment has been furnished Quinn since June 1956.

On April 27, 1967, Quinn filed applications for permanent disability indemnity and medical treatment, under the Workmen's Compensation Act, based on the same injuries.   A trial referee determined that the applications were barred by limitations.   Quinn petitioned for reconsideration, contending that the city was estopped to assert the statute of limitations as a defense.   The claims for disability indemnity were not pressed in the petition for reconsideration.   The appeals board held that the applications were not barred by limitations, and therefore did not reach the claimed estoppel.   The city contends before us that the finding on the issue of limitations has no support in the evidence.

The first question is whether the payment of a retirement pension for an industrial disability constituted “compensation” within the meaning of Labor Code section 5405, subdivision (b), so as to toll the statute of limitations.   The city points out that section 5405, subdivision (b), so as to toll the statute of limitations.   The city points out that section 5405 requires that a proceeding for recovery of workmen's compensation benefits must be commenced within one year after (a) the date of injury, or (b) the expiration of any period covered by payment under the provisions dealing with disability benefits, or (c) the date of last furnishing of any benefits provided for in provisions dealing with medical and hospital treatment.   The appeals board defends its decision with the contention that the pension paid to Quinn upon his disability retirement constituted “compensation” for disability within the meaning of section 5405, subdivision (b), relying on the general rule that the payment of any remuneration by an employer, with knowledge of the claim for workmen's compensation benefits, during a period in which the employee is found to be industrially disabled, with toll the statute.  (Bulger v. Industrial Acc. Com. (1933) 218 Cal. 716, 725, 24 P.2d 796;  Rendleman v. Industrial Acc. Com. (1966) 242 Cal.App.2d 32, 37, 50 Cal.Rptr. 923;  Morrison v. Industrial Acc. Com. (1938) 29 Cal.App.2d 528, 535, 85 P.2d 186;  London Guarantee & Acc. Co. v. Indus. Acc. Com. (Read) (1928) 92 Cal.App. 298, 301, 268 P. 670.)

 Conceding, too readily, that the disability pension received by Quinn amounted to “compensation” if payments were made at a time when disability benefits would have been payable under the Labor Code for the same disability, the city claims that any workmen's compensation benefits would long ago have expired.   But the city has the burden of proof on the defense of limitations, and the appeals board correctly points out that on the record before us the duration of benefits can only be conjectural until Quinn has had a permanent disability rating.   But the broader issue has been settled by a recent decision of the California Supreme Court holding, on facts similar to ours, that the statute of limitations barred a claim by a city employee (City of Los Angeles v. Industrial Acc. Com. (Dillin) (1965) 63 Cal.2d 255, 46 Cal.Rptr. 105, 404 P.2d 809).   The question involved in the present case—of whether pension payments constitute “compensation”—may not have been argued in Dillin, but in holding the statute a bar, the court necessarily determined that such payments were not compensation which would toll the statute.   The opinion relates:  “Curtis Dillin suffered an injury in 1935 while on duty as a city fireman.   The city paid Dillin his full salary for the year following the injury;  since then it has paid him a disability pension.   The city last afforded Dillin medical treatment in 1941.   Dillin filed his application for workmen's compensation benefits with the commission on December 13, 1962.   Thus, the statute of limitations (Lab.Code, § 5405) bars Dillin's claim unless the city is estopped to assert the statute.”  (63 Cal.2d at p. 256, 46 Cal.Rptr. at p. 106, 404 P.2d at p. 810;  emphasis added.)   There was no indication in Dillin that disability benefits would not have been payable within one year before Dillin filed his application for benefits.   The court further held that under the special circumstances of that case the city was not estopped;  the award was annulled.

Petitioner's concession that if disability benefits would have been payable within one year of Quinn's filing they would constitute “compensation” and toll the statute is based on the decision of the Supreme Court in City of Los Angeles v. Industrial Acc. Com. (Fraide) (1965) 63 Cal.2d 242, 46 Cal.Rptr. 97, 404 P.2d 801.   The Fraide case, decided with Dillin, supra, held that the city must be allowed credit against the workmen's compensation award for the disability pension paid.   But no distinction was made between pension payments made at a time when disability benefits under the Labor Code would have been payable and those made at a time when such benefits would not have been payable.   The question of what is compensation to toll the statute of limitations and what are payments for which credit should be allowed are different.   The Fraide opinion states that Fraide's injury occurred in 1947, that he was paid a full salary for one year and a disability pension thereafter, and that he filed his claim for workmen's compensation benefits in 1963.   The court then noted:  “The city does not contend that the statute of limitations bars Fraide's claim.   Apparently Fraide filed his application for benefits less than a year after the city furnished him medical and hospital treatment.   Thus the statute of limitations would not bar his claim.”  (63 Cal.2d at pp. 243–245, fn. 1, 46 Cal.Rptr. at p. 98, 404 P.2d at p. 802.)   The reference suggests that were it not for the medical treatments furnished by the city the application would have been barred by limitations.   If so, disability pension payments would not toll the statute.   We conclude that in the absence of an estoppel the statute of limitations bars Quinn's application.

The appeals board contends that the city is estopped to assert the defense of limitations, citing evidence of Quinn's reliance on certain language in the charter as assuring him a right to continuing medical treatment.   But the existence of an estoppel can only be established by findings of the requisite facts.   The appeals board expressly refused to base its decision on that ground.   We are therefore unable to accept the board's estoppel argument at this stage.   Quinn did claim an estoppel before the referee, and the issue was urged by him before the appeals board.   Because that issue is determinative and no finding was made, the decisions after reconsideration must be annulled and the causes remanded.

In the second case now before us, the city attacks a determination by the appeals board that the application of James B. Page, a policeman retired for disability under section 168.1.3 of the city charter, was not barred by limitations.   Page sustained injury in the course and scope of his employment on July 1, 1958 and was granted a disability retirement on June 28, 1967 because of the residual effects of the injury.   He received $2,042.15 from the retirement system in November 1967, representing disability retirement allowance accrued for the period between September 13, 1965 and August 31, 1967.   On December 7, 1967 Page applied for an award of permanent disability indemnity and medical treatment based on the 1958 injury.   The sole issue before the referee was the question of limitations.   No question of estoppel was presented.   Following its own decision in the Quinn case,the appeals board adopted the referee's determination that Page's claim was not barred.   For the reasons set forth in our analysis of the Quinn case, above, the decision and order must be annulled.

In the last of the cases presently under review, the city attacks the appeals board's determination that the application of William G. Paul, another city police officer retired for disability, was not barred by limitations.   Paul was injured in the course and scope of his employment on February 8, 1954 and again on July 30, 1962.   He was retired for disability, effective January 24, 1965, and has been receiving a disability retirement allowance since that time.   On December 7, 1967 Paul filed applications for disability indemnity and medical treatment based on the 1954 and 1962 injuries.   The city interposed a defense of limitations and Paul responded with the contention that the city was estopped to assert that defense.   As in the Quinn case, the appeals board here determined that Paul's applications were not barred because the disability retirement allowance constituted “compensation” within the meaning of Labor Code section 5405, subdivision (b).   So determining the appeals board withheld deciding the estoppel point.   For the reasons outlined above in relation to the Quinn case, the decision and orders of the appeals board must be annulled and the causes remanded.

In 1/Civil 25725 and 1/Civil 25876 the decisions and orders of the appeals board are annulled and the causes remanded.   In 1/Civil 25832 the decision and order are annulled.

CHRISTIAN, Associate Justice

DEVINE, P.J., and RATTIGAN, J., concur.