Authorities as the decision cited them, with how this panel applied each one.
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.