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Anderson v. Metalclad Insulation Corp.5/19/1999
resulted in lost work time, then the inference that the employee was disabled within the meaning of section 340.2 could be drawn, and the burden might then shift to the employee to present evidence that the interruption was only temporary. Where, as here, the claim for temporary or permanent disability benefits does not identify any time lost from work, it is not reasonable to infer from the fact of filing the claim alone, that the employee is disabled within the meaning of section 340.2.
The insufficiency of this evidence to support the inference that Anderson was disabled, is underscored by the fact that the very same documents Metalclad submitted to support its contention, contain evidence supporting the contrary inference: When asked to list the dates of time off from work due to the injury , Anderson's response, on the claim form was "unknown." Therefore, as of the date of filing the claim, he specifically did not claim any lost time for work due to the injury. It is reasonable to infer that he responded "unknown," instead of a definitive "none," in order to preserve his rights if, in the future, he did lose work time. At most, the court could have inferred from the response "unknown," that Anderson had not yet ascertained whether he had any periods of lost work time. The further leap to the inference that he had lost time from work due to the described injury is not justified by the evidence. In addition, in one of Anderson's interrogatory responses that Metalclad submitted, but did specifically rely upon, Anderson stated he "does not at this time believe he has lost any wages or earnings, as a result of exposure to asbestos. Plaintiff's investigation and discovery are continuing." This response is also inconsistent with the inference that, as of the date of filing his workers' compensation claim, or his application to the WCAB for adjudication, Anderson was permanently precluded from performing his regular occupation.
Metalclad suggests, for the first time on appeal, that the court could have drawn the inference that Anderson was permanently precluded from performing his regular occupation from the fact that Anderson checked a box in his application for adjudication indicating that, in addition to temporary and permanent disability, the dispute also concerned his employer's liability for "Rehabilitation." An individual, however, can seek eligibility for rehabilitation even if not presently permanently precluded from performing his or her regular occupation. Labor Code section 4635, subdivision (a)(1) provides that an employee may be eligible for rehabilitation if the nature of the injury is "likely to preclude" return to his or her former occupation. Therefore, Anderson's prayer for this type of relief does not support the inference that, as of the date the application was filed, Anderson was, in fact, disabled within the meaning of section 340.2.
Metalclad also contends, citing Barr v. ACandS, Inc., supra, 57 Cal.App.4th at pages 1055-1056, that Anderson's statements in his workers' compensation claim are "admissions" that conclusively concede the truth of the matter. The only "admissions" Metalclad refers to, however, appear in the portion of the claim in which Anderson lists the type of relief sought, including permanent and temporary disability benefits, rehabilitation, medical expenses and other relief. A review of the claim indicates that this portion of the request for adjudication is the equivalent of a prayer for relief, in a civil complaint. Metalclad suggests that the fact that Anderson checked the box constitutes an admission that he was eligible for rehabilitation. We question whether a prayer for relief should be deemed an evidentiary admission because typically the
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