MADDON v. WORKERS COMPENSATION APPEALS BOARD (1984)

In this case the Workers' Compensation Appeals Board (“Board”) dismissed the application for death benefits filed by Marie Maddon, the surviving spouse of an asbestos worker.   Without reaching the merits of her claim, the Board concluded it was barred by the applicable statute of limitations.   We annul the decision and remand for disposition on the merits.

Hugh Maddon (“decedent”) killed himself with a shotgun in April 1979 at the age of 75.   He had worked for Western Asbestos (“Western”) for over 20 years, until 1967.   Below, the workers' compensation judge took judicial notice of the records in case No. OAK 29181 (the 1969 case).   These records reveal that by the late 1960s, the decedent was suffering from lung cancer and asbestosis;  that in 1969 he filed a claim for industrial injury to his lungs;  and in 1971 he was awarded benefits in that case.

On March 31, 1980, petitioner filed the application for death benefits, alleging industrial death caused by injury suffered between 1946 and 1967 to the decedent's lungs, pulmonary system and psyche.   Western raised the defense of statute of limitations.

Petitioner filed with the Board a report from Dr. Raffle, a psychiatrist.   Raffle concluded that the suicide was a direct consequence of the industrial exposure, in that the physical ailments caused deterioration in the decedent's mental condition, interfering with his ability to deliberate rationally.   There was no other evidence.

After reviewing the parties' points and authorities, the judge accepted Western's statute of limitations theory and dismissed the case.   The Board granted petitioner's petition for reconsideration, but thereafter affirmed the judge's decision on the basis of the existing record.

The judge reasoned that petitioner alleged a “psychic injury due to the original injury back in 1967,” and that, therefore, Labor Code sections 5410 ¹ and 5804 ² control, depriving the Board of jurisdiction.³  Similarly, the Board held that the date of injury for purposes of section 5406 ⁴ was established in the 1969 case, thus positioning the filing of the application beyond the Board's temporal jurisdiction, i.e., more than 240 weeks from the date of injury.

Petitioner contends the date of psychic injury was the date of death (April 20, 1979) under section 5412,⁵ and, therefore, the application was timely.   We agree that according to her allegations the application was timely.

The question is whether the decedent “first suffered disability” from the psychic injury in the 1960s or in 1979.  (Lab.Code, § 5412.)   Both the judge and the Board assumed that since the decedent had previously filed a claim for disability resulting from the same exposure that petitioner alleges here, this case is necessarily governed by the continuing jurisdiction statutes, sections 5410, 5803 and 5804.   We conclude that statutory ambiguities necessitate, under familiar principles, the construction of those ambiguities in petitioner's favor.  (Granado v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 399, 404, 71 Cal.Rptr. 678, 445 P.2d 294;  see also Arndt v. Workers' Comp. Appeals Bd. (1976) 56 Cal.App.3d 139, 147, 128 Cal.Rptr. 250.)

 The statutes upon which Western and the Board rely are not genuine statutes of limitations.   They describe the limits of the Board's continuing jurisdiction.   Implicit in them all is the assumption that an application concerning the same injury has been filed previously, invoking the Board's jurisdiction properly and in timely fashion.   They are “immaterial to the widow's application ․”  (Western Ind. Co. v. Industrial Acc. Comm. (1917) 176 Cal. 776, 782, 169 P. 663.)  Western Indemnity was decided before section 5410, or anything analogous to it, was adopted.   However, like sections 5803 and 5804, section 5410 does not prescribe a limitation.   Rather, it appends a caveat to the statutes of limitations, affirming that they cannot be read to limit the continuing jurisdiction prescribed in sections 5803 and 5804.  (Cf. Stats.1917, ch. 586, § 11, p. 841.)  Section 5410 neither states nor implies that all disabilities traceable to a single incident must be viewed as “new and further” disabilities when the employee has formerly filed a claim alleging some injury sustained in that incident.

When the Act was codified in 1937 all limitations were placed in the chapter headed “Limitations of Proceedings” (Lab.Code, § 5400 et seq.) which includes the caveat or cross-reference proviso of section 5410.   Continuing jurisdiction provisions were placed in the chapter headed “Findings and Awards.”  (Lab.Code, § 5800 et seq.;   Stats.1937, ch. 90, pp. 294–296, 301–302.)   The deliberate separation of these provisions reinforces the view that sections 5410, 5803 and 5804 do not impose a limitations period on the filing of death benefit claims.

 The only limitations provision which should be controlling in this case is the one directly applicable to death benefit claims, section 5406.   Under that section, which incorporates the definition of “date of injury” stated in section 5412, petitioner's application was timely.

As noted, at the least we are faced with a statutory ambiguity regarding the timeliness of petitioner's application.   In such a case section 3202 ⁶ mandates a construction favorable to her in these circumstances.  (Granado v. Workmen's Comp. App. Bd., supra, 69 Cal.2d 399, 404, 71 Cal.Rptr. 678, 445 P.2d 294;  Arndt v. Workers' Comp. Appeals Bd., supra, 56 Cal.App.3d 139, 147, 128 Cal.Rptr. 250.)

Whether there was some cognizable psychic injury, when it occurred and whether it caused the decedent's death, are issues which have not been explored and which remain to be decided below.⁷

The opinion and decision dated December 10, 1982, is annulled and the case is remanded for further proceedings consistent with the views expressed in this opinion.

FOOTNOTES

1.   At all times pertinent hereto, Labor Code section 5410 read:  “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.   This section does not extend the limitation provided in Section 5407.”   All further statutory references are to the Labor Code.

2.   Section 5804 states:  “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 and any counterpetition seeking other relief filed by the adverse party within 30 days of the original petition raising issues in addition to those raised by such original petition.   Provided, however, that after an award has been made finding that there was employment and the time to petition for a rehearing or reconsideration or review has expired or such petition if made has been determined, the appeals board upon a petition to reopen shall not have the power to find that there was no employment.”

3.   A second issue in the case below was whether or not section 5406.5, enacted in 1980, should be applied as the appropriate statute of limitations.   Our disposition of the former issue makes it unnecessary for us to reach the latter.

4.   Section 5406 states:  “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 date of injury;  or [¶] (b) The date of last furnishing of any benefits under Chapter 2 (commencing with Section 4550) of Part 2, 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.”

5.   Section 5412 states:  “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.”

6.   Section 3202 states:  “The provisions of Division IV and Division V of this code shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.”

7.   Western also contends the claim is also barred by section 3600, which precludes benefits for an employee who has wilfully and deliberately caused his own death.   However, that determination can be made only at trial.  (See Vandagriff v. Workmen's Comp. (1968) 265 Cal.App.2d 854, 71 Cal.Rptr. 630.)

HANING, Associate Justice.

LOW, P.J., and KING, J., concur.