ADJ8035633 · October 14, 2024

Applicant did not know and could not reasonably be deemed to know of substantial likelihood of entitlement to subsequent injuries benefits within five years from the date of injury; no proof of service of critical documents on applicant; WCJ's credibility finding on applicant's testimony was accorded great weight; thus petition was timely filed.

From the decision · page 11But defendant cites no evidence, and we are aware of none, to suggest that applicant was aware of a permanent partial disability resulting from a work injury to the brain prior to the cumulative injury of April 27, 2001 through January 5, 2011 until at least 2020, when he learned he could file the petition for subsequent injuries benefits. (Report, p. 7.) Notably, the WCJ deemed applicant's testimony that he did not learn of his claim for subsequent injuries benefits until he attended the 2020 Super Bowl credible, and we accord this determination great weight because the WCJ had the opportunity to observe the witness's demeanor at trial. (Report, pp. 6-7; Garza v. Worker's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500].)

Applicant did not receive service of Dr. Weiss's medical reports or the Order Approving and Minutes of Hearing from October 6, 2016.

Favours Applicant prevailed

Lack of service prevented triggering of statute of limitations for filing petition for subsequent injuries benefits.

From the decision · page 9In addition, as the WCJ states in the Report, the record fails to show that applicant was served with (1) Dr. Weiss's reporting that he sustained 37 percent WPI as a result of cumulative injury; and (2) medical records subsequently reviewed by Dr. Weiss which indicated that applicant sustained permanent disability resulting from specific injuries claims while employed in the State of Virginia. (Report, p. 4.)

Applicant credibly testified he did not learn of potential SIBTF benefits until 2020 Super Bowl.

Favours Applicant prevailed

Supports finding that applicant did not know and could not reasonably be deemed to know of entitlement within five years from injury date.

From the decision · page 11But defendant cites no evidence, and we are aware of none, to suggest that applicant was aware of a permanent partial disability resulting from a work injury to the brain prior to the cumulative injury of April 27, 2001 through January 5, 2011 until at least 2020, when he learned he could file the petition for subsequent injuries benefits. (Report, p. 7.) Notably, the WCJ deemed applicant's testimony that he did not learn of his claim for subsequent injuries benefits until he attended the 2020 Super Bowl credible, and we accord this determination great weight because the WCJ had the opportunity to observe the witness's demeanor at trial. (Report, pp. 6-7; Garza v. Worker's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500].)

Assigned 37% Whole Person Impairment to applicant's orthopedic injuries in reports dated July 14, 2015 and May 9, 2016.

From the decision · page 2The Report of Dr. Weiss dated July 14, 2015, includes the following:

Prepared report dated October 23, 2009 assigning permanent partial disability ratings for multiple injuries.

From the decision · page 2Petition for Approval of Compromise Settlement 12/14/08 left ring finger 28% of left hand. 10/28/07 right middle finger 2% of right hand. 10/10/07 right knee 18% of lower extremity. 12/3/06 right middle finger 10% of hand. 1/14/06 right ring finger 6% of right hand. 10/30/05 left shoulder 25% of left upper extremity. Claimant evaluated by Dr. Charles Jackson, former team physician, who prepared a report dated 10/23/09 assigning the following permanent partial disability ratings:

Talcott v. SIBTF, 2 Cal. 3d 57 (1969)

Where an applicant does not know and could not reasonably be deemed to know of substantial likelihood of entitlement to subsequent injuries benefits within five years from the date of injury, the limitation period to file a SIBTF claim is a reasonable time after applicant learns from the board's findings on the issue of permanent disability that the Fund has probable liability.

Applied to determine timeliness of petition for subsequent injuries benefits.

From the decision · page 8We should, in the absence of statutory direction and to avoid an injustice, prevent the barring of an applicant's claim against the Fund before it arises. Therefore, we hold that where, prior to the expiration of five years from the date of injury, an applicant does not know and could not reasonably be deemed to know that there will be substantial likelihood he will become entitled to subsequent injuries benefits, his application against the Fund will not be barred--even if he has applied for normal benefits against his employer--if he files a proceeding against the Fund within a reasonable time after he learns from the board's findings on the issue of permanent disability that the Fund has probable liability. (Talcott, supra, 2 Cal. 3d at p. 65 [Emphasis added].)

Lab. Code 5951, 5952

Labor Code section 5951 limits appellate review to the record certified by the Appeals Board; section 5952 prohibits trial de novo or independent judgment on evidence.

Applied to appellate review of the record.

From the decision · page 12Hence, because the record fails to show that applicant was aware of a permanent partial disability resulting from a work injury to the brain prior to the cumulative injury of April 27, 2001 through January 5, 2011, and because the record fails to show that applicant was on notice of (1) findings on the issue of permanent disability indicating that he would likely be entitled to subsequent injuries benefits; (2) Dr. Weiss's reporting indicating that he sustained 37 percent WPI as a result of the cumulative injury and medical records reviewed by Dr. Weiss indicating that applicant suffered permanent disability resulting from specific injuries to the hands, the left shoulder, and the right knee; or (3) the October 6, 2016 minutes of hearing note indicating that applicant was 51 percent disabled after apportionment, the record is insufficient to establish that applicant knew or should have known that he had a substantial likelihood of entitlement to subsequent injuries benefits and failed to file the petition for subsequent injuries benefits within a reasonable time. (Report, pp. 1-6; Lab. Code § 5951 (providing that appellate review is limited to review of the record certified by the Appeals Board); Lab. Code § 5952 (providing "Nothing in this section shall permit the court to hold a trial de novo, to take evidence, or to exercise its independent judgment on the evidence").)

Lab. Code 5909

Labor Code section 5909 requires the Appeals Board to act on a petition for reconsideration within 60 days of transmission of the case to the Board.

Applied to timing of Board's decision on petition for reconsideration.

From the decision · page 6denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab.

Title 8, California Code of Regulations sections 10500, 10505, 10608

Title 8, California Code of Regulations sections 10500, 10505, and 10608 require service of documents and medical reports on parties.

Applied to determine whether applicant was properly served with critical documents.

From the decision · page 4In the instant case, the applicant is an "Applicant" and a "Party" as defined in Title 8, California Code of Regulations section 10205(d) and ( aa) (respectively). In 2016, the applicable sections governing service on the parties were Title 8, California Code of Regulations sections 10500 and 10505 (respectively). The record reveals that, on October 6, 2016, there was a Mandatory Settlement Conference in which there was no appearance by Applicant's counsel and Defendants were presenting a Compromise and Release to the Court for approval. Defense counsel appeared to obtain the Order Approving and was designated to serve the documents (presumably the Order Approving and the Minutes of Hearing) by the Judge [Minutes of Hearing October 16, 2016/ EAMS DOC ID# 61688551]. Title 8. California Code of Regulations section 10505 (b) would have required service by mail on all parties (unless a predesignated alternative method of service was agreed upon) and sub-section ( d) of the same regulation required service on persons listed on the official address record. the applicant was a "Party" and was on the official address record, but no evidence was submitted by Petitioner to establish service of the Order Approving or the Minutes of Hearing on the Applicant.

Applicant's credible testimony that he did not learn of potential SIBTF benefits until 2020 Super Bowl.

From the decision · page 11But defendant cites no evidence, and we are aware of none, to suggest that applicant was aware of a permanent partial disability resulting from a work injury to the brain prior to the cumulative injury of April 27, 2001 through January 5, 2011 until at least 2020, when he learned he could file the petition for subsequent injuries benefits. (Report, p. 7.) Notably, the WCJ deemed applicant's testimony that he did not learn of his claim for subsequent injuries benefits until he attended the 2020 Super Bowl credible, and we accord this determination great weight because the WCJ had the opportunity to observe the witness's demeanor at trial. (Report, pp. 6-7; Garza v. Worker's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500].)

No proof of service of Dr. Weiss's medical reports or Order Approving and Minutes of Hearing from October 6, 2016 on applicant.

From the decision · page 9In addition, as the WCJ states in the Report, the record fails to show that applicant was served with (1) Dr. Weiss's reporting that he sustained 37 percent WPI as a result of cumulative injury; and (2) medical records subsequently reviewed by Dr. Weiss which indicated that applicant sustained permanent disability resulting from specific injuries claims while employed in the State of Virginia. (Report, p. 4.)