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Statute of Limitations, Jurisdiction and Labor Code §5500.5

Iniguez v. WCAB (Court of Appeal, Not Published) (45 CWCR 93) (82 CCC 310: 


Applicant claimed an industrial injury on April 5, 2010 to his head, and, back, both shoulders and lower extremities.


In March 2011 the applicant was evaluated by a panel Qualified Medical Evaluator in Orthopedic Surgery found injury to applicants left knee, right shoulder and low back. The physician concluded the low back strain had basically resolved but found a 70% apportionment to the industrial back injury.


When the Qualified Medical Evaluator prepared his report in 2011 he was not given 2010 electro-diagnostic evidence of the nerve damage.


On re-evaluating the applicant in August 2013, the evaluator found radiculopathy in the neck and low back.


At a pretrial conference in November 2011 the issue of injury arising out of and occurring in the course of employment was raised, along with the ancillary issue regarding reporting and notice. Parts of the body injured were not specified, nor were they delineated at the trial on February 13, 2012, at which applicant testified to shoulder and knee problems.


The Worker’s Compensation Judge on February 24, 2012 found the applicant sustained injury to his left shoulder and right knee but there was no finding that they were the only parts of the body that were injured. The WCJ held the matter was not barred either by Labor Code §§3600(a)(10) or 5400.




Any further trial in May 2015, injury to other body parts was raised, including neck, back, and sleep disorder. The WCJ found injury to only the shoulder and knee, holding that although the neck and back had been claimed in 2011, those body parts were not mentioned at the initial trial. Because no petition for reconsideration had been filed, the 2012 findings had become final and the claim for back and neck injury was barred by collateral estoppel and was deemed to have been adversely decided pursuant to Labor Code §5815.


The applicant filed a petition for reconsideration and the WCJ recommended denying reconsideration adding res judicata as a basis for precluding the neck and back claim.


The WCAB in a two to one decision adopted, incorporated and affirmed the judge’s decision, noting that by not seeking reconsideration of the 2012 findings, applicant waived his later claim of the neck and back injury.


The dissenting Commissioner would have rescinded the judge’s decision and remanded the case to revisit the body parts issue for two reasons: (1) that the 2012 decision violated Labor Code §5313 by failing to resolve all body parts claim, and (2) that by adding res judicata, a different theory, to her recommendation, the WCJ arrived applicant to process. The dissent also disagreed with the judge’s reasoning that was up to applicant to correct the 2012 decision by seeking reconsideration.


Applicant filed a petition for writ of review which was granted by the Court of Appeal.


The Court of Appeal granted review and an annulled the decision of the WCAB.


While the case was before the appellate court, the Board admitted that its decision on reconsideration had been erroneous.


The court began by noting that the injury to specific body parts was not an issue listed decision before the 2012 hearing, the purpose of which was to decide threshold issues, leaving for later proceedings the determination of the nature of the injuries.


Nevertheless, the WCJ found in 2012 that industrial injuries the shoulder and knee have been sustained.


Contrary to defendant’s contentions that this determination was a finding of no injury to the back and neck, the WCJ did not hold that the shoulder and knee were the only industrial injury suffered. If so, the case would’ve ended, but it is clear to all that it was far from over in 2012, since parts of body injured was an issue at the 2015 hearing, no objection from defendant.


The court expressed no doubt that the 2012 determination by the WCJ was not a final award, with preclusive effect by a collateral estoppel or res judicata.


A decision that injuries to the right shoulder and left knee were the only industrial injuries was in fact never made in 2012; that’s it is pointless to consider whether it had a pretty act.


The court strongly agreed with the Boards present position that a finding of industrial injury to certain body parts does not bar applicant from presenting evidence of injury to other body parts at a subsequent proceeding


The court accepted the Boards request to annul the decision and to remand the printer hearing


County of Riverside v. WCAB (Sylves) (Court of Appeal, published) (82 CCC 4 ):


From December 12, 1998 to October 28, 2010 applicant was employed by the County as a deputy sheriff. He took his retirement and then work for the Pauma Police Department on a reservation belonging to the Pauma Band of Indians, which is a federally recognized Indian tribe. He was employed by the Pauma Common Pleas Department from December 28, 2010 through July 4, 2014.


The applicant filed an application for adjudication of claim on July 16, 2014. The applicant claimed a continuous trauma injury in the form of hypertension, GERD, left shoulder, low back and both knees.


On July 16, 2015 the Workers Compensation Judge issued a findings of fact. The WCJ found pursuant to Labor Code §5500.5, applicant’s continuous trauma is limited to last year of injurious exposure, even if it was with the Pauma Tribal Police. The WCJ found that applicants knee and left shoulder injuries GERD and sleep disorder were not compensable injuries arising out of employment. The WCJ found the applicant’s hypertension and back were compensable and rose out of his employment with the County of Riverside.


The County of Riverside and the Applicant filed petitions for reconsideration.


The WCAB granted reconsideration study and issued a decision after reconsideration finding substantial medical evidence of industrial injury to applicants left shoulder, bilateral knees, GERD and sleep disorder.


With respect to the statute of limitations, the WCAB found that the time in which to file a claim did not begin to run until a doctor told the applicant’s symptoms for which he had been receiving medical treatment were industrially related. The medical confirmation did not occur until 2013 and therefore the filing of the application in 2014 was timely.


The WCAB further found that Labor Code §5500.5 is not a statute of limitation but provides for a supplemental proceeding in which multiple defendants have an opportunity to portioned liability.


The WCAB agreed with the applicant that Labor Code §5500.5 cannot limit liability to the Pauma Police Department in this case because the WCAB lacks jurisdiction over the tribe.




The WCAB found that applicant while employed during the period December 27, 1998 through October 28, 2010, as a deputy sheriff, by the County of Riverside, sustained injury arising out of occur in the course of his employment in the form of hypertension, injuries to the lower back, left shoulder, both needs, GERD and sleep disorder, as well as the fact that the County failed to meet its burden of proof on the statute of limitations defense raised.


A petition for writ of review was filed.


The Court of Appeal stated that the applicant was required to file his application for adjudication of claim within one year the date of injury. The date of injury and accumulative injury case shall be the date set forth in Labor Code §5412. The date of injury pursuant to Labor Code §5412 is the date upon which the employee first suffered disability and either new or in the exercise of reasonable diligence should have known that such disability was caused by his present or prior employment.  The county has the burden of proof on the issue.


Citing the City of Fresno (163 Cal App 3d 467) stated the applicant will not be charged with knowledge that his disability is job-related without medical evidence to that effect and less the nature the disability and applicants training, intelligence and qualifications are such that the applicant should recognize the relationship between the known adverse factors involved in his employment and his disability.


In this case the facts established that the doctors first told applicant’s medical condition was related to employment within one year of his filing an application for adjudication of claim. The applicant did not receive an opinion that his condition was work-related until 2013. Therefore, the finding of the appeals Board is based on substantial evidence.


5500.5 allows an employee to select one or more employers against whom to proceed, and then permitting, any employer held liable under the award may institute proceedings before the appeals Board for the purpose of determining an apportionment of liability or right of contribution.


The purpose of the one-year limitation period in 5500.5 was to alleviate the difficulties encountered by the parties in complying with the requirements of former section 5500.5 whereby employees and their attorneys were frequently compelled to expend much time, effort and money in tracing applicant’s employment history over the entire course of his adult life. Limiting the liability of the defendants and worker’s compensation case is not the same as prescribing the time in which the case can be filed. Labor Code §5500.5 does not relate to the statute of limitations for filing an application for adjudication of claim.


The second issue the Court of Appeal dealt with was the issue of Labor Code §5500.5. Labor Code §5500.5 states that liability for occupational disease or cumulative injury claims shall be limited to those employers who employ the employee during a one-year period immediately preceding either the date of injury pursuant to section 5412 or the last date on which the employee was employed in occupation exposing him or her to the hazards of the occupational disease or cumulative injury, whichever occurs first.


The Court of Appeal found that the WCAB did not violate section 5500 (a) when it imposed liability on the county.


It is undisputed that the applicant was employed by the Pauma Police Department and not the County of Riverside for the period December 28, 2010 through July 4, 2014 and that the applicant did not have another employer after that time.

The court assumed that the job with the Pauma Police Department was injurious.   The court went on to indicate the applicant’s date of injury did not occur until 2013, when the doctors first told the applicant that his ailment was industrially related.


Therefore, the indicated it appears the liability was limited to the Pauma Police Department.


However, the Court stated this result does not follow in this case for two reasons. First the WCAB noted that the Pauma Police Department is not a party, and no claim has been made as to it.


Section 5500.5 expedite matters by allowing a claimant to proceed against one or a small number of employers or carriers, while still allowing those employers and carriers to join and seek contribution from other employers and carriers. What it does not do is allow the County to diminish, restrict or alter in any way the recovery previously allowed the employee or his dependence.


Labor Code §5500.5(a) provides in the event that none of the employers during the last year of occupational disease or cumulative injury are insured for worker’s compensation coverage or an approved alternative thereof, liability shall be imposed upon the last year of employment exposing the employee to the hazards of the occupational disease or cumulative injury for which an employer is insured for worker’s compensation coverage or an approved alternative.


The County does not contest that the Pauma Police Department belongs to a federally recognized Indian tribe, and the answers in the record both indicate this is in fact so. The WCAB lacks jurisdiction over federally recognized Indian tribes.


The appeals Board does not possess subject matter jurisdiction over the tribe as a matter of law. It seems to the court that the fact the Pauma Police Department is not subject to the WCAB’s jurisdiction means the department was not insured for worker’s compensation coverage or an approved alternative.


Consequently, liability is imposed on the next employer in line that had worker’s compensation insurance. In this case that is the County of Riverside.


The order of the WCAB was affirmed.


Arce v. Phillips-Van Heusen (BPD) (2017 Cal. Wrk. P.D. LEXIS 656):


Applicant’s claim by the Statute of Limitations.


Facts showed that the applicant was injured on January 7, 2011. Defendants paid no benefits. The defendant upon notice and knowledge of the injury failed to notify the applicant for worker’s compensation rights and serve her with the proper notices.


A claim form and application were signed by the applicant on November 17, 2010 and were served on the defendant.


The Application was not filed until February 12, 2014.


The WCAB found that the Statute of Limitations was not tolled after the applicant gained actual knowledge of her worker’s compensation rights on November 17, 2010.


Therefore, the filing of the application on February 12, 2014 was barred by the one-year statute of limitations in five-year statute did not apply as no benefits paid.