WILSON v. WORKERS COMPENSATION APPEALS BOARD (1990)

Petitioner Pearlie Wilson et al. (hereafter petitioner) seeks review of a decision from respondent Workers' Compensation Appeals Board (hereafter Board), which held in part that petitioner's claim for death benefits was barred by the one-year statute of limitation under Labor Code 1 section 5406.5.

 For the reasons discussed below, the Board decision is annulled.   We hold that section 5406.5 is properly construed to require a claim for death benefits to be filed within one year from the date of death, or within one year from the date that a dependent/applicant knew, or in the exercise of reasonable diligence should have known, that the employee's death was related to occupational inhalation of asbestos fibers.   We further hold that respondent Johns–Manville Corporation (hereafter respondent) waived its right to raise the statute of limitation defense.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner's husband, M.C. Wilson (hereafter decedent), worked for respondent as a laborer from August 22, 1947, until January 20, 1980.   It is undisputed that he was exposed substantially to asbestos in the course of his employment.

On July 8, 1982, in a separate case (OAK 98054), the Board found that decedent sustained a cumulative occupational injury to his lungs and respiratory system in the form of pleural thickening or pleural plaques consistent with asbestos exposure.   Future medical care and temporary disability benefits were awarded.

On July 30, 1982, while hospitalized, decedent was diagnosed with cancer of the esophagus, which resulted in his death on August 22, 1982.

On March 8, 1983, petitioner filed a claim for death benefits (OAK 110113), alleging that the esophageal cancer was the result of decedent's occupational asbestos exposure.

On August 15, 1983, Lonnie Bristow, M.D., reported that decedent's esophageal cancer was not related to his occupational asbestos exposure.

On December 13, 1983, the parties stipulated to dismissal of petitioner's claim for death benefits in light of Dr. Bristow's opinion.   The claim was dismissed without prejudice.

On January 9, 1986, petitioner filed a “petition to reopen” her claim for death benefits (OAK 110113).   Petitioner claimed that evidence had been “newly discovered,” revealing “that there is substantial evidence in the epidemiological literature to support that cancer of the esophagus is caused by asbestos exposure.”   Petitioner relied on the medical report of Barry Horn, M.D., dated March 20, 1986.   Citing several medical studies, Dr. Horn identified decedent's cause of death as “carcinoma of the esophagus which is attributable to his extensive prior asbestos exposure while working for Johns–Manville Corporation.”   It is undisputed that Dr. Horn's report was the first presentation of any medical evidence connecting decedent's esophageal cancer with his occupational asbestos exposure.

On August 28, 1986, at a pre-trial conference, the parties agreed to submission of the matter on the issue of whether good cause to reopen existed.

On November 6, 1986, presiding workers' compensation judge (hereafter WCJ) Alfred Williams granted the petition to reopen, finding it timely and with good cause.   Respondent did not petition for reconsideration.

On April 13, 1988, a hearing was held before WCJ Alan Eskenazi regarding, as pertinent:  (1) The occupational relationship of decedent's cancer of the esophagus and resulting death;  (2) Date of injury for purposes of determining the rate at which the death benefits would be paid;  (3) Petitioner's entitlement to death benefits, as well as that of petitioner's daughter (Faye Wilson) and of petitioner's grandson (Tony Britton);  and (4) The statute of limitation.

In addition to reports from Dr. Horn, applicant submitted a report from Allan H. Smith, M.D., dated March 7, 1988.   Respondent submitted three medical reports from Michael Cohen, M.D.   It was Dr. Cohen's opinion that decedent's asbestos exposure did not contribute in any significant way to his death.

On September 19, 1988, WCJ Eskenazi found that Wilson sustained an industrial injury in the form of esophageal cancer by reason of his exposure to asbestos while employed by respondent.   He found the medical opinions of Dr. Horn and Dr. Smith to be more convincing than the contrary opinions of Dr. Bristow and Dr. Cohen.   The WCJ further determined that the date of injury for rate purposes was 1982.   Petitioner and her grandson, Tony Britton were found to be total dependents of decedent, and were awarded a $75,000 death benefit, payable in weekly benefits of $150 and $74, respectively, commencing August 22, 1982.

Regarding the statute of limitation defense raised by respondent, the WCJ opined that petitioner was first advised as to the possible occupational relationship of decedent's death on March 20, 1986, by Dr. Horn in his report of the same date.   The WCJ stated, as follows:  “Defendant still asserts the defense of statute of limitations, and maintains that it does not waive its rights concerning Presiding Judge Williams finding of good cause to reopen in Case No. 110–113.   However, these issues were addressed by the decision of November 6, 1986, which determination [has] become final.   Moreover, from review of this record, the undersigned is not persuaded that these findings should be disturbed.”

On October 14, 1988, respondent petitioned for reconsideration.   On October 18, 1988, the WCJ recommended that reconsideration be denied.   On December 2, 1988, reconsideration was granted and the Board issued its first decision.   The Board rescinded the WCJ's findings, and ordered that petitioner take nothing by way of the claim for death benefits.

The Board opined that the occupational relationship of decedent's esophageal cancer was a moot issue for the following reasons:  (1) WCJ Williams' order granting the petition to reopen on November 6, 1986, was an interim order not subject to review, and therefore, respondent's failure to petition for reconsideration did not result in a waiver of its defenses of statute of limitation and good cause to reopen;  (2) Petitioner's claim for death benefits was not timely because it was not filed within one year from the date of decedent's death, as required by section 5406.5;  and (3) Petitioner did not establish good cause to reopen her case under section 5803.   The Board did not address respondent's contention that WCJ Eskenazi's decision was not supported by substantial medical evidence.

On December 23, 1988, petitioner sought reconsideration.   On February 17, 1989, the Board issued its second opinion, denying reconsideration.

On March 29, 1989, review was sought in this court.

DISCUSSION

Section 5803 Inquiry Improper

 The parties, including the Board, refer interchangeably to petitioner's claim for death benefits as a petition to reopen the previously dismissed claim under section 5803,² and as a new claim/application.   However, in order for the Board to exercise its continuing jurisdiction under section 5803 over a “petition to reopen,” there must exist an original order, decision, or award.  (See generally 1 Hanna, Cal. Law of Employee Injuries and Workmen's Compensation (2d rev. ed. 1990) § 9.01[1]–[2], pp. 9–4—9–6.)

Here, there was no original order, decision, or award to reopen.   Petitioner dismissed her first claim for death benefits without prejudice prior to adjudication.   There was no hearing on the merits.   Thus, the matter was left as if no application had been filed, and petitioner retained the right to refile the claim, subject to the same statutory time limitations concerning the filing of an original proceeding for death benefits.  (Nolan v. Workers' Comp. Appeals Bd. (1977) 70 Cal.App.3d 122, 128–129, 138 Cal.Rptr. 561.)   Petitioner's right to present the second claim for death benefits was not subject to the Board's continuing jurisdiction under section 5803.  (Id. at p. 127, 138 Cal.Rptr. 561.)   Consequently, the Board's determination that petitioner did not present good cause to reopen as required by section 5803 is irrelevant to the resolution of the issues before this court.

The Board opines that Nolan v. Workers' Comp. Appeals Bd., supra, 70 Cal.App.3d 122, 138 Cal.Rptr. 561, is not applicable to this matter because its actual holding turned on the issue of estoppel.   The court found that the carrier was estopped from asserting the statute of limitation defense.   This, however, does not detract from Nolan 's explicit statement that an injured employee's dismissal without prejudice of his first claim for benefits did not constitute an adjudication on the merits and did not serve to bar a subsequent action on the same cause filed within the applicable statutory period.  (Id. at pp. 128–129, 138 Cal.Rptr. 561.)   In the matter before us, the pertinent inquiry is whether petitioner's claim was timely filed under section 5406.5.

Section 5406.5

Section 5406.5, enacted in 1980, refers to the time limitation for commencing proceedings for death benefits where an asbestos worker dies from asbestosis.   It provides, as follows:  “In the case of the death of an asbestos worker from asbestosis, the period within which may be commenced proceedings for the collection of the benefits provided by Article 4 (commencing with Section 4700) of Chapter 2 of Part 2 is one year from the date of death.”

“Limitations provisions in the workmen's 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;  accord Berkebile v. Workers' Comp. Appeals Bd. (1983) 144 Cal.App.3d 940, 943, 193 Cal.Rptr. 12;  Arndt v. Workers' Comp. Appeals Bd. (1976) 56 Cal.App.3d 139, 146, 128 Cal.Rptr. 250.)

In Arndt v. Workers' Comp. Appeals Bd., supra, 56 Cal.App.3d 139, 128 Cal.Rptr. 250, this court annulled the Board's dismissal of a spouse's claim for death benefits because it had not been filed within one year from the date of death, as required by section 5406, subd. (a).³  Mrs. Arndt had filed her claim two years after her husband's death when she first learned that his death from mesothelioma might have been caused by occupational exposure to asbestos.   We held that section 5406, subd. (a), required that a dependent/applicant's compensation claim, arising out of an employee's death from an occupationally caused disease, must be commenced within one year from the date of death, or within one year from “the date that the applicant knew, or in the exercise of reasonable diligence should have known, that the death was of industrial causation.”  (Id. at p. 149, 128 Cal.Rptr. 250;  accord Berkebile v. Workers' Comp. Appeals Bd., supra, 144 Cal.App.3d at p. 945, 193 Cal.Rptr. 12.)

In reaching the holding in Arndt, this court stated:  “It must be presumed in enacting Labor Code section 5406's ‘within ․ one year from ․ the date of death’ provision, the Legislature intended a reasonable statutory purpose and not one which, in the language of Fruehauf, would result in a ‘right being lost’ before it was reasonably known to have accrued.   It is the duty of a court to interpret statutes so as to make them reasonable [citation];  and where ‘ “two constructions are possible and interpretation becomes necessary, the court will follow the rule of finding that construction which leads to the more reasonable result” ’ [citation].”  (Arndt v. Workers' Comp. Appeals Bd., supra, 56 Cal.App.3d at p. 146, 128 Cal.Rptr. 250;  accord Berkebile v. Workers' Comp. Appeals Bd., supra, 144 Cal.App.3d at p. 944, 193 Cal.Rptr. 12.)

In Berkebile v. Workers' Comp. Appeals Bd., supra, 144 Cal.App.3d 940, 193 Cal.Rptr. 12, the second appellate district, following Arndt, emphasized that an applicant's right to death benefits is independent and severable from the deceased employee's inter vivos rights, and “[t]he date of the applicant's knowledge of the industrial nature of the decedent's condition is the pertinent ‘date of injury’ for purposes of the death claim.”  (Id. at p. 945, 193 Cal.Rptr. 12.)

Consistent with Arndt and Berkebile, we hold that section 5406.5 requires that a dependent/applicant's claim for death benefits, arising out of an employee's death from asbestosis, must be commenced within one year from the date of death, or from the date that the dependent/applicant knew, or in the exercise of reasonable diligence should have known, that the employee's death was a result of occupational inhalation of asbestos fibers.

Knowledge Requirement

What constitutes knowledge under these circumstances presents a question of fact.  (Arndt v. Workers' Comp. Appeals Bd., supra, 56 Cal.App.3d at p. 149, 128 Cal.Rptr. 250.)   Here, the Board failed to make an appropriate factual determination.   It did make a factual inquiry concerning the issue of “good cause” to reopen under section 5803.   However, good cause to reopen under section 5803 is not the legal equivalent of knowledge necessary for the purpose of triggering the statute of limitation pursuant to section 5406.5.

The party seeking to reopen a case under section 5803 has the burden of proof, whereas the statute of limitation is an affirmative defense.  (§ 5409.)   Here, respondent had the burden of proving that petitioner knew or reasonably should have known prior to the expiration of the one-year period from the date of decedent's death, that his death was related to occupational asbestos exposure.  (See Pacific Indem. Co. v. Industrial Acc. Com. (1950) 34 Cal.2d 726, 729, 214 P.2d 530;  City of Fresno v. Workers' Comp. Appeals Bd. (1985) 163 Cal.App.3d 467, 471, 209 Cal.Rptr. 463.)

Case law interpreting section 5412 ⁴ is instructive concerning the issue of knowledge sufficient to trigger the statute of limitation under section 5406.5.  (See, e.g., City of Fresno v. Workers' Comp. Appeals Bd., supra, 163 Cal.App.3d 467, 472–473, 209 Cal.Rptr. 463.)   In City of Fresno, the court held “that an applicant will not be charged with knowledge that his disability is job related without medical advice to that effect unless the nature of the disability and applicant's training, intelligence and qualifications are such that applicant should have recognized the relationship between the known adverse factors involved in his employment and his disability.”  (Id. at p. 473, 209 Cal.Rptr. 463.)   We find no reason that these principles should not apply to a determination of “date of death” under section 5406.5.

 Dependents/applicants should not be deprived of compensation because they rely on the opinions of medical experts.   When employees or claimants are advised by physicians that a condition is not occupationally related, they are entitled to rely on those medical opinions, and the statute of limitation is not triggered by virtue of disability or death alone.  (See Williams v. Industrial Acc. Com. (1945) 71 Cal.App.2d 136, 140–141, 161 P.2d 979.)   Here, there is nothing in the record from which to reasonably infer that petitioner should have possessed a greater degree of medical and scientific knowledge than that of Dr. Bristow.

We conclude, however, that remanding this case for a factual determination of when petitioner gained the requisite knowledge sufficient to trigger the one-year time limitation is unnecessary because respondent waived its right to raise the statute of limitation defense.

Waiver ***

CONCLUSION

We conclude that the Board erred in dismissing petitioner's claim for death benefits because it was not filed within one year of the date of decedent's death.   Further, a factual inquiry concerning the issue of when petitioner knew, or reasonably should have known, of the occupational relationship of decedent's death is unnecessary because respondent waived its right to raise the statute of limitation defense.

The Board's opinion and order denying petition for reconsideration dated February 17, 1989, is annulled and the matter is remanded to the Board for such further proceedings as may be consistent with this opinion.

FOOTNOTES

FN1. All further statutory references are to the Labor Code unless otherwise specified..  FN1. All further statutory references are to the Labor Code unless otherwise specified.

2.   As pertinent, section 5803 reads:  “The appeals board has continuing jurisdiction over all its orders, decisions, and awards made and entered under the provisions of this division․   At any time ․, the appeals board may rescind, alter, or amend any order, decision, or award, good cause appearing therefor.  [¶] This power includes the right to review, grant or regrant, diminish, increase, or terminate, within the limits prescribed by this division, any compensation awarded, upon the grounds that the disability of the person in whose favor the award was made has either recurred, increased, diminished, or terminated.”

3.   As pertinent, section 5406 provides:  “Except as provided in Section 5406.5, the period within which may be commenced proceedings for the collection of the benefits provided by Article 4 (commencing with Section 4700) of Chapter 2 of Part 2 is one year from:  [¶] (a) The date of death where death occurs within one year from the date of injury;  ․”

4.   Section 5412 provides:  “The date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment.”

FOOTNOTE.   See footnote *, ante.

NEWSOM, Associate Justice.

RACANELLI, P.J., and STEIN, J., concur.