MASSEY v. WORKERS COMPENSATION APPEALS BOARD (1992)

Labor Code section 5406 ¹ states circumstances and the time periods under which one may file for death benefits under the Workers' Compensation Act.   Section 5408 provides for tolling of the statute of limitations for minors.

Here we consider the relationship between these two code sections and conclude that the tolling provision of section 5408 cannot be applied to section 5406 unless a cause of action under sections 4701 and 5406 has accrued.   We therefore affirm the decision of the Workers' Compensation Appeals Board (Board).

Paulette Thompson, widow of deceased employee Tommy Thompson, and her three children, Kelly, Wendy and Martin Massey, sought death benefits payable pursuant to the Labor Code.  (§ 4702.)   The workers' compensation judge (WCJ) ruled that the 240–week statute of limitations in section 5406 barred recovery by Mrs. Thompson, Kelly Massey and Wendy Massey, but did not bar recovery for Martin Massey due to the tolling provision of section 5408.   The Board granted reconsideration, rescinded the award to Martin Massey, and determined Martin Massey's claim was barred by the statute of limitations.

FACTUAL AND PROCEDURAL BACKGROUND

Decedent Tommy Thompson, Martin Massey's stepfather, sustained a cumulative industrial injury to his heart as the result of the stress and strain of his employment as an attorney from April 1978 to October 18, 1979, the date upon which he became disabled from a heart attack.   Decedent had been married to Paulette Thompson since February 18, 1977, and lived with her and her children from an earlier marriage, Kelly, Wendy and Martin Massey.   On November 26, 1980, decedent received an award of 38 percent permanent disability indemnity (after apportionment) and an award for further medical care.   He died on October 28, 1987, approximately 417 weeks after the date of injury.   Paulette Thompson filed an application for death benefits on behalf of herself and Martin Massey on April 21, 1988.   Stepchildren may qualify as dependents of a deceased employee.  (§ 3503.)   At trial Paulette Thompson amended the application to allege that Kelly and Wendy Massey were also dependents of decedent.

Section 5406 provides that applications for death benefits must be filed within one year from “(a) The date of death where death occurs within one year from date of injury;  or [¶] (b) The date of last furnishing of any benefits ․ where death occurs more than one year from the date of injury;  or [¶] (c) The date of death, where death occurs more than one year after the date of injury and compensation benefits have been furnished.  [¶] No such proceedings may be commenced more than one year after the date of death, nor more than 240 weeks from the date of injury.”  (Emphasis added.) ²

Section 5408 provides, in pertinent part:  “If ․ in the case of the employee's death, any of the employee's dependents, is under 18 years of age ․ at any time when any right of privilege accrues to such ․ dependent under this division, a guardian or conservator of the estate appointed by the court, or a guardian ad litem or trustee appointed by the appeals board, may, on behalf of the ․ dependent, claim and exercise any right or privilege with the same force and effect as if no disability existed.  [¶] No limitation of time provided by this division shall run against any person under 18 years of age ․ unless and until a guardian or conservator of the estate or trustee is appointed․”  (Emphasis added.)

The WCJ first determined that Thompson's death was proximately caused by the cumulative industrial injury.   The judge then concluded that Thompson's widow and his two oldest stepchildren were barred by the limitation set forth in section 5406.   This was because more than 240 weeks had elapsed between the date of injury and the date of death.

The WCJ apparently concluded that the tolling permitted by section 5408 did not assist the widow as an adult nor the two older Massey children, who each reached the age of 18 more than 240 weeks before their stepfather's death.   Martin Massey was aged 11 on the date of injury, and no guardian had been appointed for him.   He did not reach the age of 18 until December 15, 1985.   However, Martin Massey's application on April 21, 1988, was found to be timely.   The judge awarded death benefits to Martin.

Defendant State Compensation Insurance Fund (SCIF) petitioned for reconsideration, arguing that the tolling provision of section 5408 could not be applied to the statute of limitations set forth in section 5406 to toll the 240–week period for a minor, because, pursuant to the accepted interpretation of these statutes, no “right or privilege” had in fact accrued to minor Martin Massey before Thompson's death, and a right or privilege is a condition precedent for application of the tolling statute.   SCIF contended that no right could accrue to Martin until Thompson died, at which time Martin was no longer a minor.

The Board granted reconsideration, and agreed with SCIF that the tolling statute could not be utilized to justify an award to Martin Massey.   The Board pointed out that Martin's minority had ended two years before Thompson's death.   The Board claimed this fact distinguished this case from other cases which had permitted tolling.   The Board also stated that the 240–week period set forth in section 5406 was not really a statute of limitations but was more in the nature of a qualifying condition that had to be met before the dependent of a deceased employee could file a claim.   This petition for writ of review followed.

DISCUSSION

In arguing to the Board that the tolling statute could not be applied because Martin had only an expectancy of benefits rather than a “right” to them, SCIF relied on the California Supreme Court case of Ruiz v. Industrial Acc. Com. (1955) 45 Cal.2d 409, 412–414, 289 P.2d 229.   In Ruiz, the widow of a decedent who died of industrially related silicosis 253 weeks after the date of injury filed an application for death benefits five weeks after his death.   The Industrial Accident Commission held an award was barred by the 240–week provision of section 5406.   The widow argued that the statute could not be reasonably interpreted in such a way that a right to benefits could be time-barred even before the injured employee had died, and that a statute of limitations ordinarily does not begin to run until a cause of action has accrued.

The Ruiz court conceded that, pursuant to its interpretation of section 5406, a claim could be barred before it ever arose.   The court explained:  “[T]he time limitation [of 240 weeks from the date of injury] appears to be not a normal statute of limitations, but rather to be more in the nature of a qualifying condition in the exercise of any right to death benefits.   Diligence in the presentation of the claim, so as not to be guilty of sleeping on one's rights, apparently has no bearing if the specified time provisos are not satisfied.”  (Ruiz, supra, at p. 414, 289 P.2d 229.)   This language in Ruiz, SCIF argues, compels the conclusion that the 240–week limitation period cannot be tolled in favor of a minor and that thus Martin's claim was properly barred.

Similar arguments based on Ruiz were rejected in two Court of Appeal cases that involved minors.   Those cases approved application of the tolling statute to section 5406 to prevent the loss of death benefits.   In Fisher v. Workers' Comp. Appeals Bd. (1976) 62 Cal.App.3d 924, 133 Cal.Rptr. 471, Donald Fisher sustained a work-related heart attack on December 5, 1969.   He died 240 weeks and one day after the date of injury.   The court held section 5406 barred his widow, Kathleen, from death benefits, but not his daughter, Donna, who was 18 at the time of injury (before the age of majority was lowered to 18), was crippled from infantile paralysis, and was dependent on her father for support.  (Fisher, supra, at pp. 926–929, 133 Cal.Rptr. 471.)   The Court of Appeal declared that the tolling provision of section 5408 applied to protect Donna Fisher, who had filed her application within 240 weeks from the time the tolling period ceased.  (Id., at pp. 928–929, 133 Cal.Rptr. 471.)   The matter was remanded to the Board to reconsider Donna's application for death benefits.   The Supreme Court denied hearing.

That same year, another Court of Appeal panel decided Roblyer v. Workers' Comp. Appeals Bd. (1976) 62 Cal.App.3d 574, 133 Cal.Rptr. 246, which involved a situation similar to the one before us.   The injured employee, Paul Roblyer, had died more than 240 weeks after injury.   His daughter, Cheryl, was almost 14 on the date of injury, and had attained majority before her father died.   She filed her application for death benefits 20 days after her father's death.   The Board denied her benefits on the grounds the application for death benefits was untimely.   The Court of Appeal remanded the matter to the Board, holding that Ruiz was distinguishable and that the tolling provision of section 5408 had protected Cheryl's rights to death benefits.  (Roblyer, supra, at pp. 579–581, 133 Cal.Rptr. 246.)   The Supreme Court denied hearing.

Both Fisher and Roblyer emphasized that, despite the analysis of Ruiz, the plain language of section 5408 controls.   Referring to the second paragraph of section 5408, the Roblyer court stated that “its objective is to toll all limitation periods prescribed by division 4 of the Labor Code, including the 240–week period mentioned in section 5406, during the period of an injured worker's minority or incompetency and during the period of the minority and incompetency of any dependent unless a guardian has been appointed.   There is nothing in the paragraph to suggest, even remotely, that the tolling takes place only if the right to a death benefit accrues during the dependent's minority and then only if the dependent institutes proceedings to collect the death benefit before attaining majority.”  (Roblyer v. Workers' Comp. Appeals Bd., supra, 62 Cal.App.3d at p. 579, 133 Cal.Rptr. 246.)

The Roblyer case errs by analyzing the second paragraph of section 5408 as an independent paragraph that has no relation to the section's first paragraph.   In fact, the first and second paragraphs, when read together, say just the opposite.   The first paragraph allows for the appointment of a guardian where a right to a minor accrues.

The Board and SCIF point out there is no reason to appoint a guardian until a death occurs, because there is no right to exercise on the minor's behalf.   When there is such a right, the second paragraph serves to toll the time limitations until a guardian is appointed.   We agree.   It is also nonsensical, in fact a little eerie, to think of a statute of limitations running on a possible right that never accrues.   This is as hard to imagine as the sound of one hand clapping.

The statute is clear, and the Ruiz court noted, “[t]here is no ambiguity in the present wording of the section, and it neither requires nor admits of interpretation.”  (Ruiz v. Industrial Acc. Com., supra, 45 Cal.2d at p. 414, 289 P.2d 229.)

Section 3202 urges a liberal construction of the workers' compensation law in favor of injured employees and their dependents.   The construction of section 5406, however, should not be so liberal as to create rights that do not exist.  (See Ruiz v. Industrial Acc. Com., supra, 45 Cal.2d at p. 413, 289 P.2d 229.)   The Ruiz court, which had no trouble understanding the statute, treated the 240–week provision in the statute of limitations as a “qualifying condition” (Ruiz v. Industrial Acc. Com., supra, 45 Cal.2d at p. 414, 289 P.2d 229) and stated that the rule of liberal construction “does not mean that the Legislature's intent as expressed in [section 5406] can be ignored” (id., at p. 413, 289 P.2d 229).   The statute of limitations only comes into play if a right accrues.   If the 240–week period elapses prior to the injured worker's death, then the right simply does not accrue to anyone, minor or adult.

The purpose in tolling the statute of limitations for a minor is to give that minor, who has no legal capacity, the opportunity to enforce a right the minor would have had as an adult.   The purpose in tolling the statute is not to give the minor a cause of action that would otherwise be nonexistent had the minor been an adult.   Tommy Thompson's death occurred more than 240 weeks after his injury.   Therefore, the necessary condition precedent to a claim for death benefits never occurred.   No dependent of Tommy Thompson could file a claim for death benefits because no right to file such a claim ever existed.   That it might have existed but in fact did not cannot bring into existence, as if by magic, a right.   Therefore, there was no statute of limitations to toll.

We affirm the decision of the Board.

I respectfully dissent.   Martin Massey turned 18 on December 15, 1985.   During his minority, he was the dependent stepson of decedent Tommy Thompson.   Thompson sustained an industrial injury on October 18, 1979, received workers compensation benefits, and died approximately 417 weeks later on October 28, 1987.   Massey applied for a workers' compensation death benefits within one year of Thompson's death, i.e., on April 21, 1988.

The Board and the majority conclude that Massey is not entitled to a death benefit.   The tolling provisions of Labor Code section 5408 and two Court of Appeal opinions indicate that he is entitled thereto.  (Fisher v. Workers' Comp. Appeals Bd. (1976) 62 Cal.App.3d 924, 928–929, 133 Cal.Rptr. 471;  Roblyer v. Workers' Comp. Appeals Bd. (1976) 62 Cal.App.3d 574, 579–581, 133 Cal.Rptr. 246.)

I acknowledge a certain appeal to the majority opinion.   It seems generous that the Legislature would allow a 21 year old to receive a death benefit because of his stepfather's 1979 industrial injury.   While the mere passage of time is not determinative, it has been over 15 years since the Court of Appeal decided the two apposite cases interpreting Labor Code section 5408.   Since that time, no “corrective” legislation has been passed to supersede their effect.   I presume that during this period, similarly situated dependents have received death benefits based on the same section 5408 tolling principle.   The majority create a conflict in the Court of Appeal opinions, statutorily construe Labor Code section 5408 in favor of the Board, and hold that no dependent minor is entitled to a death benefit if the worker dies more than 240 weeks after the injury.

In construing Labor Code sections 5406 and 5408, it must be emphasized that dependency is determined at the time of the industrial injury, not date of death.  (Lab.Code, §§ 3501, 3502;  Granell v. Industrial Acc. Com. (1944) 25 Cal.2d 209, 214, 153 P.2d 358.)   Because Massey sought death benefits within one year of his stepfather's death, his application was timely.  (Lab.Code, § 5406, subd. (c).)  The 240–week period for accrual of death benefits was suspended during Massey's minority by reason of Labor Code section 5408.

“Section 5408 focuses primarily on the disability claims of minor employees;  it protects these employees from statutes of limitation until an adult guardian or trustee is available.   By sheer force of its terms, it also encompasses the potential death benefit claims of minor dependents and the 240–week limitation which conditions their rights to death benefits.”  (Fisher v. Workers' Comp. Appeals Bd., supra, 62 Cal.App.3d at p. 928, 133 Cal.Rptr. 471.)

Nothing in Ruiz v. Industrial Acc. Com. (1955) 45 Cal.2d 409, 289 P.2d 229 (Ruiz) compels a contrary result.   There, the court conceded that a widow's claim for a death benefit could be barred before it ever arose if the employee died more than 240 weeks from date of injury.  Ruiz, however, did not involve a dependent minor or Labor Code section 5408 tolling.

Based on Ruiz, the majority conclude that the “qualifying condition” or accrual period which makes a dependent eligible for a death benefit is not tolled if the dependent attains majority before the employee's death.   Not so.

“Limitations provisions in the [workers'] compensation law must be liberally construed in favor of the employee unless otherwise compelled by the language of the statute, and such enactments should not be interpreted in a manner which will result in a right being lost before it accrues.  [Citations.]”   (Fruehauf Corp. v. Workmen's Comp. App. Bd. (1968) 68 Cal.2d 569, 577, 68 Cal.Rptr. 164, 440 P.2d 236.)   The same rule applies for dependent claimants.  (Arndt v. Workers' Comp. Appeals Bd. (1976) 56 Cal.App.3d 139, 147, 128 Cal.Rptr. 250.)

The second paragraph of section 5408 tolls “․ all limitation periods prescribed by division 4 of the Labor Code, including the 240–week period mentioned in section 5406․   There is nothing in the paragraph to suggest, even remotely, that the tolling takes place only if the right to a death benefit accrues during the dependent's minority․”  (Roblyer v. Workers' Comp. Appeals Bd., supra., 62 Cal.App.3d at p. 579, 133 Cal.Rptr. 246.)   Where, as here, the Legislature drafts an all-encompassing tolling provision in a remedial area of law, adherence to the “separation of powers” principle of government dictates that the dependent be given the benefit thereof.

FOOTNOTES

1.   All further statutory references are to the Labor Code unless otherwise specified.

2.   Section 5406.5 provides an exception to this rule not applicable here.

GILBERT, Associate Justice.

STEVEN J. STONE, Presiding Justice, concurs.