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Council of Community Clinics v. Workers' Compensation Appeals Board9/14/2005
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Council of Community Clinics and its insurance carrier Zenith Insurance Company (together Zenith) petition for writ of review after the Workers' Compensation Appeals Board (Board) denied reconsideration of the findings and award following arbitration in favor of Remedy Temp and its insurance carrier CNA Insurance Company (together CNA). The arbitrator found CNA had a right to contribution from Zenith under Labor Code section 5500.5 et seq., rejecting Zenith's claim that CNA's petition for contribution was untimely. We conclude the one-year statute of limitations in section 5500.5, subdivision (e) applies to bar CNA from obtaining contribution from Zenith, and Zenith was not estopped from claiming CNA's petition for contribution was untimely. Accordingly, we annul the Board's decision.
FACTUAL AND PROCEDURAL BACKGROUND
Applicant Kelly Cass sustained a cumulative trauma injury to her arms, back and neck arising out of more than one employment. Cass filed two applications for adjudication of claim, listing continuous trauma injury from September 1, 1995, through September 1, 1996; and from July 1, 1997, through July 1, 1998. During those periods, Cass worked for the AIDS Foundation, which was insured by State Compensation Insurance Fund (SCIF); Remedy Temp, which was insured by CNA (formerly RSKCO); Olsten Staffing, which was permissibly self-insured and adjusted by Helmsman Management Services (Helmsman); and Council for Community Clinics, which was insured by Zenith.
At a mandatory settlement conference on June 6, 2002, the parties signed an arbitration submittal form for mandatory arbitration under section 5270 et seq. and agreed to have the case heard before a designated arbitrator. Although the arbitration submittal form listed no specific issues to be arbitrated, the form referred to section 5275, subdivision (a), which states disputes involving insurance coverage and the right of contribution under section 5500.5 are subject to mandatory arbitration. The same day, the workers' compensation judge (WCJ) signed an order for submittal to agreed arbitrator.
Cass elected to proceed against only CNA as allowed by section 5500.5, subdivision (c). On July 22, 2002, the workers' compensation administrative law judge approved a compromise and release between Cass and CNA, awarding Cass benefits of $105,000. Two years later, on July 30, 2004, CNA filed a petition for contribution under section 5500.5, subdivision (e), seeking apportionment of liability and contribution from Zenith, SCIF and Helmsman for a portion of the benefits paid to Cass.
Arbitration occurred on July 27, 2004. Zenith, SCIF and Helmsman raised the defense that CNA's claim for contribution was untimely because a petition for contribution was not filed within one year of the order approving compromise and release, which is the equivalent of an award of compensation. In its findings and award following arbitration, the arbitrator rejected the statute of limitations defense, finding the WCJ's order to arbitrate contribution "institute proceedings" before the Board within the meaning of section 5500.5, subdivision (e), and thus the need to file a petition for contribution was "moot." The arbitrator then apportioned liability for Cass's cumulative injury among CNA, SCIF, Helmsman and Zenith, and issued an award based on the parties' various p
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