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Martino v. Workers' Compensation Appeals Board11/4/2002
the date of the industrial injury. (Lab. Code, § 5410, 5804; Youngblood v. Workers' Comp. Appeals Bd. (1989) 216 Cal.App.3d 764, 774; Sacramento County Off. of Education v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 107, 115.)
The majority assume that applicant was not medically able to use VR services before May 30, 2000 when the WCAB increased the permanent disability award. If that was the case, all she had to do was timely inform the RU and ask for an interruption of services. There is nothing in the record to support that she was medically unable to use VR services. Unlike Pool v. Workers' Comp. Appeals Bd. (1989) 211 Cal.App.3d 694, rehabilitation services were not suspended so applicant could seek additional medical evaluation and treatment.
Labor Code section 5410 is designed "to foster both certainty and finality in the law. For example, an applicant may believe a newly manifested disability is caused by a previous industrial injury for which compensation had been awarded. Nevertheless, the applicant's ability to reopen the claim ceases five years from the date of the injury (§ 5410). In symmetrical fashion, section 5804 generates some repose for the injured employee by terminating the employer's ability to reopen a previously adjudicated claim once five years from the date of the original injury have passed." (Barnes v. Workers' Comp. Appeals Bd. (2000) 23 Cal.4th 679, 686-687, fn. omitted.)
The majority's opinion goes beyond a liberal construction of the WCAB rules. It eviscerates the concept of finality of orders. Now, every applicant can file a "Martino" petition to reopen before the WCAB just before rehabilitation services are closed by the RU. The applicant can keep the petition dormant, and years later, claim that rehabilitation services were suspended. Such a procedure renders Labor Code section 5410 a nullity.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
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