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Martino v. Workers' Compensation Appeals Board11/4/2002
As modified November 25, 2002; no change in judgment.
CERTIFIED FOR PUBLICATION
We review the order of respondent Workers' Compensation Appeals Board (WCAB) denying reconsideration. While a petition to terminate an employee's vocational rehabilitation (VR) services was pending before the rehabilitation unit (RU), employee petitioned to reopen with the WCAB within five years of her injury for new and further disability. She also requested VR be reinstated. While the petition to reopen was pending, VR services were terminated by the RU. Thereafter the petition to reopen was granted by the WCAB. Here we conclude the employee's petition for reinstatement of VR is not barred by the statute of limitations. We reverse.
FACTS
Petitioner Brenda Martino sustained an admitted industrial back injury on April 10, 1995. On June 1, 1995, Martino wrote her employer's insurer, Superior National Insurance Company (Superior), requesting VR benefits. Superior agreed, and the parties selected a rehabilitation consultant. Martino's injury prevented her from participating in the program, and she requested that rehabilitation services be interrupted or deferred. The parties agreed to a one- month extension, from July 1, 1996, to July 30, 1996. Martino timely requested and Superior granted two more extensions. Each of the letters from Superior granting extensions contains the following notice: "Please remember that the law states that you have no more than five years from your date of injury to request additional rehabilitation services. If you do not request services by the interruption end date shown above, your rights to rehabilitation will probably end." Martino did not begin or recommence her VR program nor request a further extension by the last agreed extension date of February 20, 1998.
On February 26, 1998, the workers' compensation judge (WCJ) awarded Martino 59 1/2 percent permanent disability, further medical treatment and attorney fees. The order did not mention VR.
On April 9, 1998, Superior filed an application with the RU requesting that liability for VR services be terminated.
On April 24, 1998, before the RU made a determination on Superior's request to terminate, Martino filed a petition to reopen with the WCAB alleging new and further disability and requesting that VR be reopened.
On May 11, 1998, the RU granted Superior's request to terminate VR services, finding that "there are no current grounds for extending the interruption of the rehabilitation process pursuant to [California Code of Regulations, title 8,] section 10129 . . . ." The RU's determination also states: "The employee retains the right to reopen the rehabilitation process per [Labor Code section] 5410--this must be made prior to 4-10-2000, or within 5 years from the date of injury . In view of the nature of the denial of vocational rehabilitation services, in order to reinstate the rehabilitation process, the employee will only be required to submit a written request for the same, albeit on a timely basis as previously stated."
On May 30, 2000, the WCJ granted Martino's petition to reopen, finding new and further disability to her back and increasing her permanent disability rating to 85 1/2 percent. The WCJ's opinion on decision states: "There seems to be little doubt that there is good cause to reopen. Applicant's back disability has changed and there has clearly been an additional period of temporary disability." The order does not mention VR.
Within one year of the supplemental award, on January 31, 2001, Martino wrote Superior requesting reinstatement of VR services. When Superior failed to respond, Martino filed
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