ADJ9838694 · September 29, 2021

Applicant's Petition to Reopen was filed more than five years after the date of injury, beyond the jurisdictional time limit, and no good cause for tolling or estoppel was established.

From the decision · page 1Applicant seeks reconsideration of the June 16, 2021 Findings of Fact, wherein the workers' compensation administrative law judge (WCJ) found that the WCAB did not have jurisdiction to award new and further disability because applicant's Petition to Reopen was not timely filed and there is no good cause to allow tolling of the statute of limitations.

Applicant's Petition to Reopen was filed on December 16, 2019, five years and eleven days after the December 5, 2014 injury date.

Favours Defendant prevailed

This filing was beyond the five-year jurisdictional limit for reopening an award under Labor Code sections 5804 and 5410.

From the decision · page 3In this case, applicant's injury occurred on December 5, 2014, but he filed his Petition to Reopen on December 16, 2019, five years and eleven days after his injury. In his trial brief, applicant appeared to contend that the other pleadings wherein he sought to enforce his award of medical treatment and obtain penalties related to enforcement of the award could be construed as a Petition to Reopen within five years of the date of injury. However, none of the documents

Applicant did not allege any action by defendant that he relied upon to his detriment to toll or estop the statute of limitations.

Favours Defendant prevailed

Without such allegations, there is no basis to waive or toll the jurisdictional time limit, leading to denial of reopening.

From the decision · page 4Furthermore, a petitioner for reconsideration forever waives issues that are not set forth specifically and in full detail in its petition. (Lab. Code, § 5902, 5904; Cedillo v. Workmen's Comp. Appeals Bd. (1971) 5 Cal.3d 450, 455§ 456 [36 Cal. Comp. Cases 497, 501]; U.S. Auto Stores v. Workmen's Comp. Appeals Bd. (Brenner) (1971) 4 Cal.3d 469, 476 [36 Cal. Comp. Cases 173, 177§ 178].) Here, applicant's petition fails to make specific and detailed allegations upon which it might be concluded that the time limitation of Labor Code section 5410 was waived or tolled, or that defendant is estopped from raising it. Applicant has not alleged any action by defendant that applicant relied upon to his detriment. Moreover, applicant has not explained how the doctrine of "Scrivener's Error" could be applied in this case, and if applicant intended to seek relief based on a claim of mistake, he was required to set forth specific and detailed allegations in that instance as well. Accordingly, based on the record before us, we are unable to provide applicant any relief from the untimely filing.

Labor Code sections 5803, 5804

The appeals board has continuing jurisdiction over all its orders, decisions, and awards made and entered under the provisions of Division 4, but no award shall be rescinded, altered, or amended after five years from the date of injury except upon a timely petition by a party in interest (Lab. Code, §§ 5803, 5804).

Applicant's Petition to Reopen was filed more than five years after the date of injury, thus the WCAB lacked jurisdiction to grant reopening.

From the decision · page 2"The appeals board has continuing jurisdiction over all its orders, decisions, and awards

Labor Code section 5410

An injured worker has the right to institute proceedings for collection of compensation within five years after the date of injury on the ground of new and further disability, but this does not extend the limitation in Section 5407 (Lab. Code § 5410).

Applicant's Petition to Reopen was untimely under this statute as well.

From the decision · page 2[n]othing in this chapter shall bar the right of any injured worker to institute proceedings for the collection of compensation within five years after the date of the injury upon the ground that the original injury has caused new and further disability. The jurisdiction of the appeals board in these cases shall be a continuing jurisdiction within this period. This section does not extend the limitation provided in Section 5407. (Lab. Code § 5410.)

Applicant did not allege any action by defendant that he relied upon to his detriment to toll or estop the statute of limitations

From the decision · page 4Furthermore, a petitioner for reconsideration forever waives issues that are not set forth specifically and in full detail in its petition. (Lab. Code, § 5902, 5904; Cedillo v. Workmen's Comp. Appeals Bd. (1971) 5 Cal.3d 450, 455§ 456 [36 Cal. Comp. Cases 497, 501]; U.S. Auto Stores v. Workmen's Comp. Appeals Bd. (Brenner) (1971) 4 Cal.3d 469, 476 [36 Cal. Comp. Cases 173, 177§ 178].) Here, applicant's petition fails to make specific and detailed allegations upon which it might be concluded that the time limitation of Labor Code section 5410 was waived or tolled, or that defendant is estopped from raising it. Applicant has not alleged any action by defendant that applicant relied upon to his detriment. Moreover, applicant has not explained how the doctrine of "Scrivener's Error" could be applied in this case, and if applicant intended to seek relief based on a claim of mistake, he was required to set forth specific and detailed allegations in that instance as well. Accordingly, based on the record before us, we are unable to provide applicant any relief from the untimely filing.