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Granite Construction Company v. Workers' Compensation Appeals Board10/30/2003
CERTIFIED FOR PUBLICATION
Petitioners Granite Construction Company (Granite) and RSKCo seek review of a decision of the Workers' Compensation Appeals Board (Board) awarding additional benefits to respondent Carl D. McReynolds (McReynolds) for new and further disability. Petitioners contend McReynolds did not submit a timely claim for new and further disability; thus the Board lacked jurisdiction to issue the award. We agree and annul the Board's decision.
Facts and Proceedings
On September 12, 1990, McReynolds injured his back and legs while working as a cement mason for Granite. At the time, Granite's workers' compensation benefits were adjusted by RSKCo. On August 19, 1991, McReynolds filed a claim with the Board (case No. STK 0086967).
On August 28, 1991, McReynolds sustained injury to his lower back while working as a cement mason for D.S.S. Engineering (DSS). DSS was insured for purposes of workers' compensation by Liberty Mutual Insurance Company (Liberty Mutual). McReynolds filed a claim with the Board (case No. STK 0096339).
On February 23, 1993, McReynolds moved to consolidate the two cases.
On or about March 26, 1993, the cases were settled by stipulation of the parties. The stipulation provided, among other things, that McReynolds suffered 29 percent permanent disability in case No. STK 0086967, for which he was entitled to total payments of $16,170, and 17 and 1/2 percent permanent disability in case No. STK 0096339, for which he was entitled to $8,435. The stipulation also allocated costs between the two employers for rehabilitation and future medical care. It provided that RSKCo would pay Liberty Mutual 50 percent of all vocational rehabilitation costs, in the amount of $15,401, and would pay $2,500 for future medical care. Liberty Mutual would assume responsibility for all future medical care. The court entered an award in accordance with the stipulation.
By letter dated August 23, 1993, McReynolds complained to the Board that Liberty Mutual was refusing to pay for medical treatment. The letter indicated that McReynolds visited Dr. Moris Senegor on August 10, 1993, because of "severe pain," but the insurer would not authorize an "MRI scan and injections or possible surgery" to relieve the pain. McReynolds sought reimbursement for the doctor visits and the MRI. Attached to the letter was a report by Dr. Senegor.
On May 9, 1996, McReynolds filed a petition to reopen both cases. Attached to the petition was a document entitled "APPLICATION FOR NEW AND FURTHER DISABILITY," claiming disability greater than that established by a December 5, 1994, report by Dr. Senegor. The only parties named as defendants in the two documents were DSS and Liberty Mutual.
On February 26, 1998, DSS and Liberty Mutual filed a petition to join Granite and RSKCo as party defendants. Joinder was ordered on or about March 5, 1998.
On August 21, 2001, the workers' compensation judge (WCJ) issued his findings, award and order. The WCJ concluded that case No. STK 0086967 had been reopened properly and that McReynolds had sustained new and further disability. The WCJ allocated 62 percent of the additional disability to "Granite by RSKCo" and 38 percent to Liberty Mutual.
Granite and RSKCo filed a petition for reconsideration, asserting that McReynolds failed to reopen case No. STK 0086967 within five years of the injury as required by statute. The Board granted reconsideration. However, the Board ultimately upheld the decision of the WCJ. The Board adopted and incorporated the report and recommendation of the WCJ, which explained that the August 23, 1993, letter from McReynolds was t
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