Do You Know When You File A Petition For Contribution?

A recent appellate decision has indicated that a reimbursement petition is untimely if filed more than one year after the original award for benefits.

The applicant filed a claim against three employers. Labor Code section 5500.5 was raised as a defense. The applicant elected to proceed against one employer’s carrier. The WCJ, after trial, issued an opinion that all three employers were responsible for the cumulative trauma on November 17, 1987. The Judge awarded temporary disability and medical care, but deferred permanent disability and apportionment findings. The judge found all defendants jointly and severable liable.

The elected against defendant was designated as me defendant primarily liable and responsible to furnish the benefits awarded.  The elected defendant eventually settled by compromise and release in March of 1994. Prior to the filing of the C&R the elected defendant never filed a Petition For Contribution. The elected defendant reserved their right to seek contribution from the codefendant in the cumulative trauma period in the C&R. The elected defendant then filed the petition for contribution in November 1994. This was within one year of the C&R, but not within one year of the original award for temporary disability.

The question was whether section 5500.5 (e) permitted the elected defendant to seek contribution for the temporary disability that they paid prior to the C&R. The court indicated that the rights of the elected defendants are deferred to the contribution proceeding.  Since the original defendants are not fully represented at the original proceedings, the WCJ’s joint and several award is not res judicata (final).  This issue may be relitigated in the contribution proceedings. The one-year time limitation for the filing of the petition for contribution is measured from the judge’s award. Thus, the petition for contribution on the original award of T.D. had to be filed by 1988. The court indicated the one-year is not tolled by the filing of a petition for reconsideration. However, when a supplemental award is issued for a new and distinct class of benefits, which were not awarded in the original, a petition for contribution is timely if filed within one year of that award.  Thus, the petition is timely in this case as to permanent disability and vocational rehabilitation benefits paid pursuant to the C&R because they were not awarded in the original findings of fact and award. The WCJ can allow no contribution to those benefits awarded in the findings of fact and award of 1987.

The lesson to be learned is always file a petition for contribution within one year of the award of any distinct class of benefits.

Case: The Rex Club V. W.C.A.B.

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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