NICKELSBERG v. WORKERS COMPENSATION APPEALS BOARD (1989)

We review a decision of the Workers' Compensation Appeals Board (Board) in which it determined it had no jurisdiction to award further temporary total disability indemnity.   We affirm.

FACTS

On January 5, 1979, applicant sustained industrial injury to the back and legs during employment as a truck driver by the Los Angeles Unified School District.   He had also sustained an industrial injury to the back and legs during employment by the school district in 1976.   The parties stipulated the injuries resulted in temporary disability from January 6, 1979, through June 8, 1981, and 663/434 percent permanent disability.   The parties also stipulated applicant might need further medical treatment to cure or relieve the effects of the industrial injuries.

On February 2, 1983, the workers' compensation judge (WCJ) awarded temporary and permanent disability indemnity and further medical treatment pursuant to the stipulations.   The WCJ did not reserve jurisdiction to award further temporary disability indemnity.

In July 1987 applicant had back surgery as a result of the 1979 industrial injury.   The parties stipulated applicant was temporarily totally disabled from March 7, 1987, through November 25, 1987.

On February 8, 1988, applicant petitioned to reopen on the grounds he sustained new and further disability.   He contended he should be awarded indemnity for the new period of temporary total disability.

The WCJ awarded further temporary total disability indemnity, and the Board granted reconsideration on its own motion.

The Board rescinded the WCJ's award, concluding the petition to reopen was barred by Labor Code section 5804 and the WCJ had no jurisdiction to award further temporary disability indemnity.

DISCUSSION

I

 Applicant contends the Board erred because Labor Code section 4656 provides jurisdiction to award further temporary total disability indemnity.   We disagree.

In 1976 Labor Code section 4656 provided:  “Aggregate disability payments for a single injury causing temporary disability shall not extend for more than 240 compensable weeks within a period of five years from the date of the injury.”  (Stats.1959, ch. 1189, § 12, p. 3279.)

Labor Code section 4656 was amended by Senate Bill No. 1851, 1977–1978 Regular Session, to provide as follows:  “Aggregate disability payments for a single injury occurring prior to January 1, 1979, causing temporary disability shall not extend for more than 240 compensable weeks within a period of five years from the date of the injury.  [¶] Aggregate disability payments for a single injury occurring on or after January 1, 1979, causing temporary partial disability shall not extend for more than 240 compensable weeks within a period of five years from the date of the injury.”

These amendments to the statute resulted in removing any time limitation on temporary disability benefits for injuries occurring after January 1, 1979, which result in a period of total disability.

In an analysis of Senate Bill No. 1851, the Assembly Ways and Means Committee noted that proponents of the legislation contended the limitation of Labor Code section 4656 on temporary total disability indemnity should be removed because surgery is often required years after an injury to remove a surgically implanted device.

In an enrolled bill report, the Industrial Relations Department opined that in most instances temporary disability is concluded long before 240 weeks have elapsed within 5 years after the date of injury.   The department stated:  “There are however cases which create a hardship situation where an industrial injury results in the need for surgery more than 5 years after the date of injury.   Due to the arbitrary time limit, the employee is then only entitled to receive medical benefits and is precluded from receiving temporary disability indemnity resulting from the hospitalization and surgery.   Although occurring rarely, these situations create an obvious hardship that is difficult to defend.”

 Labor Code section 5804 provides in pertinent part as follows:  “No award of compensation shall be rescinded, altered, or amended after five years from the date of the injury except upon a petition by a party in interest filed within such five years․”  This five-year period is jurisdictional.   (General Foundry Service v. Workers' Comp. Appeals Bd. (1986) 42 Cal.3d 331, 333, 337–338, 228 Cal.Rptr. 243, 721 P.2d 124.)

It is significant that when the Legislature amended Labor Code section 4656 it did not also amend section 5804.   Repeals by implication are disfavored and are recognized only when potentially conflicting statutes cannot be harmonized.  (Dew v. Appleberry (1979) 23 Cal.3d 630, 636, 153 Cal.Rptr. 219, 591 P.2d 509;  see Singh v. Workers' Comp. Appeals Bd. (1987) 52 Cal.Comp.Cases 15, writ den.)

In General Foundry Service v. Workers' Comp. Appeals Bd., supra, 42 Cal.3d 331, 228 Cal.Rptr. 243, 721 P.2d 124, the Supreme Court held that when an injured employee has an insidious, progressive disease, the Board may tentatively rate permanent disability within the five-year period and may reserve jurisdiction to finally determine permanent disability when the employee's condition is permanent and stationary or further deterioration would be irrelevant for rating purposes.  (Id., at pp. 333, 338, 228 Cal.Rptr. 243, 721 P.2d 124.)

 We hold that Labor Code sections 4656 and 5804, read together, enable the Board to reserve jurisdiction to award temporary total disability indemnity related to hospitalization or surgery occurring more than five years after the date of injury.  (See General Foundry Service v. Workers' Comp. Appeals Bd., supra, 42 Cal.3d at pp. 333, 337, 338, 228 Cal.Rptr. 243, 721 P.2d 124;  Southland Mechanical Constructors Corp. v. Nixen (1981) 119 Cal.App.3d 417, 427, 173 Cal.Rptr. 917.)   We conclude, however, that by awarding further medical treatment the WCJ did not implicitly reserve jurisdiction to award temporary total disability indemnity after the five year period subsequent to the injury.   Temporary disability indemnity and medical treatment are separate classes of benefits (see Burton v. Workers' Comp. Appeals Bd. (1980) 112 Cal.App.3d 85, 89, 169 Cal.Rptr. 72), and further medical treatment is often awarded for reasons other than an anticipated need for surgery or hospitalization.

Because the WCJ did not reserve jurisdiction, the Board correctly concluded the WCJ lacked jurisdiction to award further temporary total disability indemnity.  (See General Foundry Service v. Workers' Comp. Appeals Bd., supra, 42 Cal.3d at pp. 333, 337, 338, 228 Cal.Rptr. 243, 721 P.2d 124;  Singh v. Workers' Comp. Appeals Bd., supra, 52 Cal.Comp.Cases 15.)

[ [–] ]

The decision of the Board is affirmed.

ABBE, Associate Justice.

STEVEN J. STONE, P.J., and GILBERT, J., concur.