Police Department on a reservation belonging to the Pauma Band of Luiseno Indians
(Pauma Band), which is a federally recognized Indian tribe. Sylves’s employment with
the Pauma Police Department lasted from December 28, 2010, through July 4, 2014.
Sylves filed an application for adjudication of claim on July 16, 2014. He claimed
a continuous trauma for “hypertension, GERDS [gastroesophageal reflux disease], left
shoulder, low back and both knees.”
On June 8, 2015, the parties appeared before a workers’ compensation judge
(WCJ) for adjudication of Sylves’s claim. On July 6, 2015, the WCJ issued his findings
of fact. Under the heading titled “Statute of Limitations,” he found: “Pursuant to Labor
Code section 5500.5, applicant’s continuous trauma is limited to the last year of injurious
exposure, even if it is with the Pauma Tribal Police.” The WCJ found that Sylves’s knee
and left shoulder injuries, his GERDS, and his sleep disorder were not compensable
injuries arising in and out of employment. However, he also found that Sylves’s
1 Unless otherwise specified all further statutory references are to the Labor Code.
2
hypertension and back injury were compensable and arose from employment with the
County.
Sylves and the County both moved for reconsideration of the WCJ’s ruling. The
County attacked the evidence allegedly showing that Sylves suffered from labor-
disabling hypertension or back problems during his employment with the county, and it
argued section 5500.5 meant that liability could only be imposed against the Pauma
Police Department. In his motion, Sylves argued that section 5500.5 has nothing to do
with the statute of limitations, that the County failed to meet its burden of proving he
failed to comply with the limitations period in section 5405, and that section 5500.5 did
not limit liability to the Pauma Police Department because the Pauma Band is a federally
recognized tribe over which the WCAB has no jurisdiction.
The WCAB granted both petitions for reconsideration “to further study the factual
and legal issues.” It then filed an opinion and decision after reconsideration in which it
found “substantial medical evidence support[ing] industrial injury to [Sylves’s] left
shoulder, bilateral knees, GERD and sleep disorder.” With respect to the statute of
limitations, the WCAB explained that the time in which to file a claim did not begin to
run until a doctor told him the symptoms for which he had been receiving treatment were
industrially related; since medical confirmation did not occur until 2013, Sylves’s 2014
application was timely. The WCAB further found that section 5500.5 “is not a Statute of
Limitations but provides for a supplemental proceeding in which multiple defendants
have an opportunity to apportion liability.” Finally, it agreed with Sylves that section
5500.5 cannot limit liability to the Pauma Police Department in this case because the
3
WCAB lacks jurisdiction over the tribe. In conclusion, the decision after reconsideration
made factual findings that Sylves, “while employed during the period 12/27/1998 through
10/28/2010, as a Deputy Sheriff, by the County of Riverside, sustained injury arising out
of and in the course of employment in the form of” hypertension, injuries to the lower
back, left shoulder, both knees, GERD, and a sleep disorder, as well as that the County
“failed to meet its burden of proof on the Statute of Limitations defenses raised herein.”
This petition followed. We granted review on April 27, 2016, in order to provide
better clarity regarding the application of section 5500.5
DISCUSSION
The County advances two arguments:2 that the WCAB erred in finding Sylves’s
application for adjudication of claims to have been timely, and that it violated section
2 The petition “asserts the following as grounds for review: [¶] 1. That the opinion and order granting reconsideration and decision after reconsideration of the Appeals Board was not supported by substantial evidence[; and ¶] 2. The opinion of the Worker’s Compensation Appeals Board misapplied the law as defined in the Labor Code as it applied to Labor Code § 5500.5, 5412 and statute of limitations, section 5405, reaching its decision and was therefore unreasonable.” The answer asks us to summarily deny the petition because petitioner failed to attach all relevant medical evidence despite arguing that insufficient evidence supports the WCAB’s opinion. (Cal. Rules of Court, rule 8.495(a)(2) [“If the petition claims that the board’s ruling is not supported by substantial evidence, it must fairly state and attach copies of all the relevant material evidence”].) We decline to do so because, as we construe it, the brief supporting the petition does not actually attack the sufficiency of the medical evidence, but instead asks us to answer the following two questions: (1) “Did the [WCAB] err in its application of Labor Code § 5405 in finding that the application for adjudication of claim had been filed timely by applicant not having worked for the County of Riverside in nearly four years?”; and (2) “Was it error for the [WCAB] to ignore Labor Code section 5500.5 and place all responsibility for the injury on the County of Riverside despite the last four years of injurious exposure being with the Pauma Police Department?” Neither of these requires
4
5500.5(a) in assigning liability to the County even though Sylves’s last four years of
exposure had been with a different employer. Neither of these succeeds.
“In considering a petition for writ of review of a decision of the WCAB, this
court’s authority is limited. This court must determine whether the evidence, when
viewed in light of the entire record, supports the award of the WCAB. This court may
not reweigh the evidence or decide disputed questions of fact. [Citations.] However, this
court is not bound to accept the WCAB’s factual findings if determined to be
unreasonable, illogical, improbable or inequitable when viewed in light of the overall
statutory scheme. [Citation.] Questions of statutory interpretation are, of course, for this
court to decide.” (Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd. (1993) 16
Cal.App.4th 227, 233.)
1. Petitioner has given us no reason to find that the application for adjudication
of claims was untimely.
Sylves was required to file his application for adjudication of claims within, as
relevant here, one year of “[t]he date of injury.” (§ 5405, subd. (a).) “The date of a
cumulative injury shall be the date determined under Section 5412.” (§ 3208.1.)
Because the injuries Sylves allege are all cumulative, we look to section 5412, which
reads: “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
[footnote continued from previous page] [footnote continued from previous page] us to review the sufficiency of the medical evidence. We therefore do not do so, and the County’s request is moot.
5
the exercise of reasonable diligence should have known, that such disability was caused
by his present or prior employment.” The County bears the burden of proving that
Sylves’s application for adjudication of claims was untimely. (Chambers v. Workers’
Comp. Appeals Bd. (1968) 69 Cal.2d 556, 559.)
We pause briefly to emphasize the way in which the nature of the petition
necessarily narrows our inquiry into this issue. In attacking the timeliness of the
application for adjudication, the County implies that Sylves, who had a long history of
treatment for orthopedic injuries, must have had knowledge of industrial causation well
before he claimed in this proceeding. For example, the County argues this preexisting
knowledge should have prevented the WCAB from applying the presumptions in sections
3212.2 and 3212.5. It also asserts that Sylves retired because of his knees, not because of
his back. With the exception of some quotes from the opinions by the WCJ and the
WCAB, for which the County directs us to specific page and line number citations, no
citations to the record accompany the vast majority of the County’s factual assertions.
We therefore do not pass on the validity or veracity of these claims. (See, e.g., Colt v.
Freedom Communications, Inc. (2003) 109 Cal.App.4th 1551, 1560 [“No record
reference is furnished for this statement, and we may thus ignore it.”].) Instead, we
remind the County of the following rules of general application:
“It is within the province of the WCAB to make the factual determination as to
whether an employee has knowledge of an industrial related injury and, if so, when that
knowledge arose. [Citation.] An appellate court ‘will not interfere with the board’s
factual findings if they are supported by substantial evidence or by reasonable inferences
6
drawn from the testimony adduced. [Citations.]’ ” (Galloway v. Workers’ Comp.
Appeals Bd. (1998) 63 Cal.App.4th 880, 886.) Moreover, “[t]he burden of proving that
the employee knew or should have known rests with the employer. This burden is not
sustained merely by a showing that the employee knew he had some symptoms.” (City of
Fresno v. Workers’ Comp. Appeals Bd. (1985) 163 Cal.App.3d 467, 471; see Id. at p. 473
[“an applicant will not be charged with knowledge that his disability is job related
without medical advice to that effect unless the nature of the disability and applicant’s
training, intelligence and qualifications are such that applicant should have recognized
the relationship between the known adverse factors involved in his employment and his
disability.”].) Finally, “The Labor Code is to be liberally construed for the protection of
persons injured in the course of their employment.” (Id. at p. 471.)
In this case, the WCAB opinion summarizes Sylves’s testimony and then relies on
it to find that doctors first told him his medical conditions were related to his employment
within one year of his filing an application for adjudication of claims; the summary of
evidence from the proceeding before the WCJ supports the conclusion that Sylves
testified he did not receive an opinion that his conditions were work related until 2013.
“This finding is [therefore] supported by substantial evidence and binds this court on
The one place the County cites evidence in support of its assertions is when
arguing that Sylves gave inconsistent statements about the intensity of his work with the
Pauma Police Department. This is because, while Sylves testified that work on the
7
reservation was less strenuous than work for the County, Dr. Lal’s report indicated that
Sylves did “all the physical activities of a police officer” on the reservation. As best we
can tell, the County asks us to find Sylves less than truthful in his testimony about when
he first found out his medical conditions might be work related. As we have already
indicated, we may not reweigh evidence in this proceeding. We “also may not isolate
facts which support or disapprove of the WCAB’s conclusions and ignore facts which
rebut or explain the supporting evidence.” (Zenith Insurance Co. v. Workers’ Comp.
Appeals Bd. (2008) 159 Cal.App.4th 483, 490.) Here, Sylves also testified that he did
“not recall giving such a history to Dr. Lal,” as well as that “[h]e attempted to tell Dr. Lal
the difference between the two jobs, but he is not sure that Dr. Lal understood.” The
County does not acknowledge this testimony exists, let alone explain why it does not
explain the inconsistency to which the petition calls our attention.
The remaining issue the County raises relates to how section 5500.5 affects the
calculation of the limitations period applicable to Sylves’s application for adjudication of
claims. Our short answer is that it does not.
Section 5500.5(a) reads, in relevant part: “Except as otherwise provided in
Section 5500.6, liability for occupational disease or cumulative injury claims filed or
asserted on or after January 1, 1978, shall be limited to those employers who employed
the employee during a period of [one] year[][3] immediately preceding either the date of
3 The full text is: “Except as otherwise provided in Section 5500.6, liability for occupational disease or cumulative injury claims filed or asserted on or after January 1, 1978, shall be limited to those employers who employed the employee during a period of
8
injury, as determined pursuant to Section 5412, or the last date on which the employee
was employed in an occupation exposing him or her to the hazards of the occupational
disease or cumulative injury, whichever occurs first.” Section 5500.5 was originally
enacted to codify the principles announced in Colonial Ins. Co. v. Industrial Acc. Com.
(1946) 29 Cal.2d 79, 82 (Colonial Ins.), which held that an injured employee should have
the right to “obtain an award for the entire disability against any one or more of
successive employers or successive insurance carriers if the disease and disability were
contributed to by the employment furnished by the employer chosen or during the period
covered by the insurance even though the particular employment is not the sole cause of
the disability,” with a corresponding right on the part of the employers and/or insurers to
seek apportionment and contribution from earlier employers and/or insurers. (See
[footnote continued from previous page] [footnote continued from previous page] four years immediately preceding either the date of injury, as determined pursuant to Section 5412, or the last date on which the employee was employed in an occupation exposing him or her to the hazards of the occupational disease or cumulative injury, whichever occurs first. Commencing January 1, 1979, and thereafter on the first day of January for each of the next two years, the liability period for occupational disease or cumulative injury shall be decreased by one year so that liability is limited in the following manner:
For claims filed or Asserted on or after: The period shall be:
January 1, 1979 three years January 1, 1980 two years January 1, 1981 and thereafter one year
9
(Tidewater Oil Co.).) The current version of section 5500.5 continues this codification
by allowing an employee to select one or more employers against whom to proceed, and
then permitting “any employer held liable under the award [to] institute proceedings
before the appeals board for the purpose of determining an apportionment of liability or
right of contribution.” (§ 5500.5, subd. (e).)
The purpose of the limitation contained in subdivision (a) of section 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 the applicant’s employment
history over the entire course of his adult life.[4]’ ” (Tidewater Oil Co., 67 Cal.App.3d at
p. 958.) Limiting the liability of the defendants in a workers’ compensation case is not
the same as prescribing the time in which that case can be filed. As neither the language
nor the history of section 5500.5 evidences a concern with the limitations period for filing
an application for workers’ compensation benefits, we reject the County’s suggestion that
the WCAB violated section 5500.5(a) when it found Sylves’s claims to be timely.
Section 5500.5(a) does not relate to the statute of limitations for filing an application for
adjudication of benefits.
4 The statute was not, as the County asserts without citation to authority, “clearly put in place to avoid situations where employees could reach back over numerous years and sue an unsuspecting employer who had no notice of such injury when, in fact, that applicant had continued to perform the same occupation with a subsequent employer being subject to the continued injurious exposure.”
10
2. The WCAB did not violate section 5500, subdivision (a), when it imposed
liability on the County.
We construe the petition to make the separate but related argument that the
WCAB violated section 5500, subdivision (a), by imposing liability on the County even
though it is undisputed that Sylves had worked for the Pauma Police Department for
approximately the last four years of his employment. We disagree.
As indicated above, section 5500.5(a) limits liability to those employers who
employed Sylves in the year “immediately preceding either the date of injury, as
determined pursuant to Section 5412, or the last date on which the employee was
employed in an occupation exposing him or her to the hazards of the occupational disease
or cumulative injury, whichever occurs first.” It is undisputed that Sylves was employed
by the Pauma Police Department, and not by the County, from December 28, 2010, to
July 4, 2014, and that he did not have another employer after that time. We will assume
for the sake of argument that Sylves’s employment with the Pauma Police Department
was at least rigorous enough to expose him to “the hazards of the occupational disease or
cumulative injury.” (§ 5500.5(a).) If, as indicated above, Sylves’s date of injury did not
occur until 2013, when doctors first told him that his ailments were industrially related,
section 5500.5(a) might seem to limit liability to the Pauma Police Department, as
petitioner contends.
This result does not follow in this case for two reasons. First, and as the WCAB
opinion noted, the Pauma Police Department is not a party, and no claim has been made
as to it. Section 5500.5 expedites matters by allowing a claimant to proceed against one
11
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 County to “diminish, restrict, or alter in any way the recovery previously
allowed the employee or his or her dependents.” (§ 5500.5, subd. (e).) Applying section
5500(a) in the manner the County recommends would have the practical effect of
allocating liability to Sylves, thereby reducing his recovery in violation of this provision.
It would also be “not in consonance with the required liberal interpretation and
application of the workmen's compensation laws.” (Colonial Ins., supra, 29 Cal.2d at p.
82.)
Second, the County fails to account for the following language from section
5500.5(a): “In the event that none of the employers during [last year] of occupational
disease or cumulative injury are insured for workers’ 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 workers’ compensation coverage or an approved
alternative thereof.” The County does not contest that the Pauma Police Department
belongs to a federally recognized Indian tribe, and the answer and the record both
indicate this is in fact so. The WCAB lacks jurisdiction over federally recognized Indian