5 Year Petitions and Counter-Petitions

Saturday, May 22, 2004 | 0

Every once in a while, a case presents the attorney with facts that weren't particularly contemplated by the drafters of the laws and regulations that govern the work comp system. One such situation that is not particularly unique was addressed in the WorkCompCentral Professional's Forum concerning the 5 year statute of limitations in Labor Code section 5804.

5804 provides:

"No award of compensation shall be rescinded, altered, or amended after five years from the date of the injury except upon a petition by a party in interest filed within such five years and any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."

A user in the Forums asks:

"Applicant filed for new and further 10 days prior to the 5-year statute. Ultimately a report was generated by her treating doctor which, when rated several months later at the WCAB, represented far less disability than the initial award. Is it possible to file a petition to reduce an award and take credit applied to future medical or am I precluded by the 5-year statute?

Answer:

This is a purely jurisdictional issue, and the WCAB lacks jurisdiction to grant a petition to reduce the award of permanent disability if there was no petition to reduce disability filed within the 5-year statutory period set forth in L.C. sections 5403 and 5404.

Also note that there is an 30 day period in 5804 in which to file a counter-petition seeking a reduction of permanent disability.

In Selden v. WCAB, 176 Cal.App.3d 877 (1986) applicant sustained cumulative industrial injury ending September 1, 1975. Ultimately applicant was awarded a 96 3/4 percent permanent disability. About 8 months after the award, in August, 1980, "after applicant avoided properly requested examinations," the employer filed a petition to reduce the award just prior to the expiration of the five year statute.

When applicant's attorney answered the petition he averred that there were no facts constituting good cause to alter the award, and did not counter-petition.

The employer's reporting physician, in October of 1980, rendered an opinion that in fact applicant's condition had worsened. Applicant's attorney sought to have the award modified and increased in accordance with the employer physician's opinion, despite the fact that the employer had subsequently withdrawn its petition.

Applicant prevailed at the trial level, but was reversed on reconsideration.

Noting that the time limits in Labor Code sections 5803 and 5804 are jurisdictional, the Appellate Court likewise ruled that applicant was out of luck:

"Consequently, as the Board correctly determined, applicant's belated request to increase disability, made more than six years after the injury and more than a year after the Employer's petition to reopen, did not come within the express provisions of section 5804. The rule that limitation provisions in the Labor Code must be liberally construed in favor of employees (section 3202) cannot properly be invoked where 'otherwise compelled by the language of the statute.' (Citations.) The language of section 5804 clearly requires that an adverse party seeking other relief file within 30 days of the petition to reopen a counterpetition raising issues in addition to those raised in the original petition. To permit applicant to file a counterpetition, or answer, or other pleading within the 30-day time limit of section 5804 alleging only that the petition to reopen is 'completely without good cause' and should be 'summarily denied,' and then more than a year later seek to raise a new issue of good cause to reopen, would render the express limitation provisions of section 5804 meaningless. (Citation.)"

Obviously this rule opens malpractice exposure. Tips to reduce this exposure include:

1. Ensure that a counter-petition is always filed averring facts (if nothing else than on "information and belief") to support the opposite of the relief sought by the original petition (if any);

2. Ensure you have a diary, or other calendar system, that alerts you to the running of the five year statute in every case where there is an award (by judicial activity or stipulation);

3. A standard document that explains the effect of the five year statute in plain English, with the date the statute runs clearly spelled out, should be provided to the applicant with applicant's signature on your file copy;

4. A reminder notice should go to the applicant (if you're an applicant attorney) within enough time prior to the expiration of the five year statute to enable the gathering of any evidence that may be necessary to file a petition;

5. Your file should be well documented as to any phone conversations or other communications with the applicant or others affected by the statute indicating disclosure and understanding of the jurisdiction of the Board.

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