Can the Statue of Limitations be Waived by Stipulation?
Consider, if you will, a situation where applicant’s attorney requires you to stipulate to the reservation of jurisdiction over an issue to the Workers’ Compensation Appeals Board (WCAB) as part of the Stipulations with Request for Award or even a Compromise and Release. A great example is where applicant’s attorney writes “issues of temporary total disability, retro-TTD, and permanent jurisdiction are reserved” on the settlement documents which are approved by the judge.
Does this sentence have any controlling power over the WCAB once that Award, or Order, issues? Applicant’s attorney will argue that it does. You should argue that it does not.
Generally, once there is an order, decision, or award in a case, the WCAB ceases to have jurisdiction over the case. The WCAB has only limited jurisdiction over a case after the issuance of the order, decision, or award under Labor Code section 5803. Without a timely Petition to Reopen, the WCAB has no jurisdiction over the case to enforce previous orders, decisions, or awards. (See Barnes v. WCAB, 23 Cal.4th 679).
Even that limited power of jurisdiction, to enforce a previous order, decision, or award is subjected to statutory limits under Labor Code sections 5412 and 5804 which state that a Petition to Reopen cannot be filed more than five (5) years after the date of injury.
In a case where there is no “insidious, progress disease,” language in the settlement documents or award cannot invoke the continuing jurisdiction of the WCAB. (General Foundry Srvc. v. WCAB, 42 Cal.3d 331) To invoke the jurisdiction of the WCAB, a timely petition must be filed under either Labor Code section 5410 or 5804.
The Court has held that the “authority to reserve jurisdiction applies only in cases involving insidious, progressive diseases. Parties cannot confer jurisdiction on the Board to reopen cases beyond five years from the date of injury where the injury is not an insidious, disease. (Hartsuiker v. WCAB, 12 Cal.App.4th 209, 218-220.)
The WCAB elaborated, in the unpublished decision in Finley, that it cannot reserve continuing jurisdiction, absent a finding of an insidious, progress disease, because “the Board cannot reserve jurisdiction it never had. The Board’s attempt to do so in [a] stipulation was void.” The authority to reserve jurisdiction applies only in those cases where the Board is unable to make a final determination of disability.
If you have a final determination of disability, a final order, decision, or award, then there is no way for applicant’s attorney to reserve jurisdiction. The only way that to invoke the WCAB’s jurisdiction in such a case is to file a timely Petition to Reopen under either Labor Code section 5412 or 5804.