Supreme Court of California Justia
Docket No. S113201

Honeywell v. WCAB (Wagner)


Filed 2/10/05

IN THE SUPREME COURT OF CALIFORNIA

HONEYWELL, )

Petitioner,
S113201
v.
Ct.App. 2/3 B156438
WORKERS’ COMPENSATION
APPEALS BOARD and WILLIAM
WCAB No. LAO 0763476
WAGNER,
)
Respondents. )

Labor Code section 54021 establishes a presumption that an injury is
compensable under the workers’ compensation system if the employer does not
deny liability for a worker’s claim “within 90 days after the date the claim form is
filed.” (Id., subd. (b).) Departing from this clear and unambiguous language, the
Workers’ Compensation Appeals Board (WCAB) ruled the 90-day period is also
triggered when the employer knows or should know of an industrial injury or
claim and breaches its duty (§ 5401) to provide the claim form.
Like the Court of Appeal, we conclude the WCAB erred in this regard. The
employer’s knowledge of an injury satisfies the worker’s duty to provide notice
within 30 days of the injury (§§ 5400, 5402, subd. (a)) and triggers the employer’s
duty to provide a claim form within one working day (§ 5401, subd. (a)). But

1
All further statutory references are to the Labor Code unless otherwise
specified.



absent circumstances creating an equitable estoppel, the 90-day period for the
employer to deny liability runs only from the date the worker files a claim form
with the employer. (§ 5402, subd. (b).) Neither the WCAB nor this court can alter
the clear statutory command.
FACTUAL AND PROCEDURAL BACKGROUND
Our summary of the facts and procedure is drawn primarily from the Court
of Appeal’s opinion, which the parties agree accurately states the case
background.
William Wagner, a sheet metal specialist for Honeywell (formerly Allied
Signal Aerospace Company) for over 16 years, claims work-related injuries to his
body and psyche due to employment from January 1, 1995, through October 16,
1998.
Wagner’s company medical record contains a July 20, 1998, entry
reflecting Wagner’s statements that management was prejudiced against him and
hampered his promotion and transfer, that he “can’t take it anymore,” and that his
doctor had prescribed him medications for work stress.
On October 16, 1998, Wagner’s wife, Linda Wagner, left a message with
Honeywell’s disability coordinator, Nyssa Hawkins, that Wagner had been
admitted to a psychiatric facility with a nervous breakdown and that his work
supervisor and others had pushed her husband over the edge with their “head
games.” Linda Wagner also asked for disability forms. On October 20, 1998,
Hawkins confirmed receipt of a doctor’s note verifying disability and told Linda
Wagner disability forms would be sent. The hospitalization records indicate
Wagner was depressed and suicidal; they mention stress and aspects of his family
and personal history, as well as identifying “work problems” as a subject for
“continued work in aftercare.”
On January 11, 1999, in response to Wagner’s January 10 submission of a
medical leave request form on which a box was checked that the injury was work
2

related, Linda Wood, who handled workers’ compensation for Honeywell, wrote
Wagner that she had received the information from the medical department and
was enclosing a claim form and a pamphlet explaining workers’ compensation.
On January 15, 1999, Wagner served a completed claim form on
Honeywell. Honeywell denied the claim by letter of March 31, 1999.
In support of his injury claim, Wagner obtained a medical report from his
treating psychiatrist, Thomas Curtis. Dr. Curtis diagnosed major depression with
anxiety and panic attacks that were industrially caused. Honeywell obtained a
rebuttal medical opinion from psychologist Mory Framer, who concluded
Wagner’s psychiatric condition was caused by nonindustrial factors or by good
faith personnel actions.2
The matter was first submitted to the workers’ compensation judge (WCJ)
without testimony, for determination whether the injury should be presumed
compensable under section 5402. The WCJ found that Honeywell had sufficient
information to require provision of the claim form, at the latest, on October 16,
1998, following the contact with Linda Wagner. The 90-day period under section
5402 had therefore ended on January 15, 1999, the WCJ found, and the psychiatric
injury was presumed compensable unless rebutted by evidence not available by
that date.
The WCAB granted Honeywell’s petition for reconsideration and issued an
en banc decision. It held that section 5402’s 90-day period begins either when the
employee files a claim form or when an employer is “reasonably certain” of an
industrial injury or claim and breaches the duty to provide the claim form. The
WCAB rescinded the WCJ’s decision and remanded the matter for application of

2
Section 3208.3, subdivision (h) provides: “No compensation under this
division shall be paid by an employer for a psychiatric injury if the injury was
substantially caused by a lawful, nondiscriminatory, good faith personnel action.
The burden of proof shall rest with the party asserting the issue.”
3



the “reasonably certain” standard, which it stated is satisfied when the employer
“has been made aware of facts which would lead a reasonable person to conclude
with some certainty that an industrial injury . . . has occurred or is being asserted.”
(Wagner v. Allied Signal Aerospace (2001) 66 Cal.Comp.Cases 483, 488-489.)
On remand, Nyssa Hawkins, the Honeywell disability coordinator, testified
she was reasonably certain that Linda Wagner was reporting a work injury in
October 1998. Hawkins reported the facts she had learned from Linda Wagner,
but not her own conclusion, to Linda Wood within a few days. Wood said she
would take care of the matter. In her own testimony, Wood stated that she knew
William Wagner had been hospitalized in October of 1998 and heard (either then
or earlier) from the medical department that he was out “on stress,” possibly
because of work events, but that Wagner did not himself report any industrial
injury to her. Wood did not recall Hawkins reporting in October 1998 that
Wagner had received an injury, though she acknowledged that was Hawkins’s
normal practice.
The WCJ again found that the 90-day period under section 5402 had
expired on January 15, 1999, and Honeywell’s failure to deny liability before that
date rendered the psychiatric injury presumptively compensable. A claim form
should have been provided no later than October 16, 1998, when Hawkins
received information that made her reasonably certain of the industrial injury,
information she also reported to Wood. At this point, Honeywell “reasonably
should have known” an emotional injury arising from events at work was being
claimed.
The WCAB adopted the WCJ’s findings and denied reconsideration. The
WCAB concluded that the legislative policy of encouraging prompt investigation
and processing of claims was facilitated by applying the presumption of
compensability where the employer is reasonably certain that an injury has
occurred and fails to timely provide a claim form.
4

The Court of Appeal granted Honeywell’s petition for writ of review and
annulled the WCAB decision. The appellate court held the WCAB’s adoption of a
reasonable certainty trigger for running of the 90-day period was contrary to the
statutory language, under which the period runs only from the filing of a claim
form. Egregious conduct by the employer designed to frustrate the employee’s
pursuit of compensation could estop the employer from denying the 90-day period
had commenced, but a merely negligent failure to provide the employee a claim
form, in the court’s view, could not start the period running and create a
presumption of compensability. The Court of Appeal remanded for the WCAB to
determine “whether Honeywell’s conduct falls into the egregious category or was
merely a negligent omission.”
We granted the WCAB’s petition for review.
DISCUSSION
A brief review of the pertinent statutes is in order.
Under section 5400, an injured worker cannot maintain a claim unless he or
she has given the employer written notice of the injury within 30 days of its
occurrence.3 But under section 5402, subdivision (a), the employer’s knowledge
of the injury, or knowledge that a claim of injury is being asserted, substitutes for
the written notice required by section 5400.4

3
Section 5400 provides: “Except as provided by sections 5402 and 5403, no
claim to recover compensation under this division shall be maintained unless
within thirty days after the occurrence of the injury which is claimed to have
caused the disability or death, there is served upon the employer notice in writing,
signed by the person injured or someone in his behalf, or in case of the death of
the person injured, by a dependent or someone in the dependent’s behalf.”

Section 5403 provides that the employee’s failure to give notice does not
bar the claim if the employer was not thereby misled or prejudiced.
4
Section 5402, subdivision (a) provides: “Knowledge of an injury, obtained
from any source, on the part of an employer, his or her managing agent,

(footnote continued on next page)
5



When the employer receives either written notice or knowledge of an injury
that has caused lost work time or required medical treatment, the employer is to
provide the employee, within one working day, with a workers’ compensation
claim form and notice of potential eligibility for benefits. (§ 5401, subd. (a).)5
The injured employee may then file the claim form with the employer; the claim is
deemed filed “when it is personally delivered to the employer or received by the
employer by first-class or certified mail.” (Id., subd. (c).)
Filing the claim form allows the injured worker to begin receiving certain
payments and to request a medical evaluation, and tolls the limitations period of
section 5405. (§ 5401, subd. (d).) It also begins a new, 90-day period for the
employer to investigate and evaluate the claim; if the employer does not reject
liability within that period, the injury is presumed compensable, a presumption
rebuttable only by later discovered evidence. (§ 5402, subd. (b).)6

(footnote continued from previous page)
superintendent, foreman, or other person in authority, or knowledge of the
assertion of a claim of injury sufficient to afford opportunity to the employer to
make an investigation into the facts, is equivalent to service under Section 5400.”
5
Section 5401, subdivision (a) provides in pertinent part: “Within one
working day of receiving notice or knowledge of injury under Section 5400 or
5402, which injury results in lost time beyond the employee’s work shift at the
time of injury or which results in medical treatment beyond first aid, the employer
shall provide, personally or by first-class mail, a claim form and a notice of
potential eligibility for benefits under this division to the injured employee, or in
the case of death, to his or her dependents.”
6
Section 5402, subdivision (b) provides: “If liability is not rejected within
90 days after the date the claim form is filed under Section 5401, the injury shall
be presumed compensable under this division. The presumption of this
subdivision is rebuttable only by evidence discovered subsequent to the 90-day
period.”

In 1998 and 1999, when the material events in this case occurred, section
5402 was not divided into subdivisions. The provisions of present subdivisions (a)
and (b) were contained in the same paragraph. (See Stats. 1990, ch. 1550, § 57,
pp. 7296-7297.)
6



Under these provisions, (1) the employee bears the initial burden of
notifying the employer of an injury, unless such notice is unnecessary because the
employer already knows of the injury or claimed injury from other sources.
(2) The employer then bears the burden of informing the worker of his or her
possible compensation rights and providing a claim form, but (3) it is up to the
employee whether and when to initiate a claim for compensation by filing the
prescribed form with the employer. Only when the form has been filed is (4) the
employer (or its insurer) put to the additional burden of promptly investigating the
claim and determining whether to contest liability, an investigation that must be
completed within 90 days.
In ruling that the 90-day period begins as soon as the employer knows of
the injury or claim, the WCAB collapsed this four-step process into two, short-
circuiting the formal claim process required for running of the 90-day period under
sections 5401 and 5402. The Legislature has not provided that an employer must,
at the risk of having the injury presumed compensable, begin investigating liability
whenever an injury comes to its attention, but rather that the employer must at that
point give the employee the information and means by which a claim may be
formally made. The Legislature specifically prescribed, by an amendment enacted
in 1990, the manner of filing a claim form and the date it would be considered
filed (§ 5401, subd. (c)); at the same time, it specifically mandated the 90-day
investigation period would run from “the date the claim form is filed under
Section 5401” (§ 5402, subd. (b)).7 We cannot ignore that plain statutory
language.

7
Prior to the 1990 amendments (Stats. 1990, ch. 1550, § 57, pp. 7296-7297),
section 5401 stated merely that the claim form was to be filed by the employee or
an agent or dependent, but did not specify the manner of filing or the date the form
was deemed filed. Section 5402 stated merely that the 90-day period ran from
“the date of written claim under Section 5401.” (Stats. 1989, ch. 892, §§ 46-47,
pp. 3035-3036.)
7



In interpreting the workers’ compensation statutes, we give great weight to
the construction of the WCAB, unless it is clearly erroneous or unauthorized.
(Wilkinson v. Workers’ Comp. Appeals Bd. (1977) 19 Cal.3d 491, 501.)
Ultimately, of course, our fidelity must be to the legislative intent as best shown
by the Legislature’s use of clear and unambiguous statutory language. (DuBois v.
Workers’ Comp. Appeals Bd. (1993) 5 Cal.4th 382, 387-388.) We conclude the
WCAB’s construction of the statutes not only contravenes the clear and
unambiguous command in section 5402, subdivision (b) that the 90-day period run
from “the date the claim form is filed under Section 5401,” but also, as explained
below, fails to implement the legislative intent behind the statutes.
The provisions in sections 5401 and 5402 for filing of a claim form and an
ensuing 90-day period for investigation by the employer were initially added as
part of the Margolin-Bill Greene Workers’ Compensation Reform Act of 1989
(Stats. 1989, ch. 892, §§ 46-47, 57, pp. 3035-3036, 3039). That law was the result
of efforts “by representatives of organized labor, management and the insurance
industry following several years of negotiation intended to streamline and improve
the workers’ compensation benefit delivery system; increase benefit levels for
injured workers; and reduce costs to employers.” (Dept. of Industrial Relations,
Enrolled Bill Rep. on Assem. Bill No. 276 (1989-1990 Reg. Sess.) prepared for
Governor Deukmejian (Sept. 19, 1989) p. 4; see State Compensation Ins. Fund v.
Workers’ Comp. Appeals Bd. (1995) 37 Cal.App.4th 675, 681-682.) The purpose
of the amendment to section 5402 was “to expedite the entire claims process in
workers’ compensation by limiting the time during which investigation by the
employer of a claim by an injured worker could be undertaken—90 days—without
being penalized for delay. The ‘penalty’ provided for delay was that a rebuttable
presumption of compensability would attach to the claim.” (State Compensation
Ins. Fund v. Workers’ Comp. Appeals Bd., supra, at p. 682.)
The WCAB was thus correct to say, in its January 7, 2002, decision
denying reconsideration, that section 5402 reflects a legislative policy of
8

“encouraging prompt investigation of claims,” but clearly incorrect in assuming
that the legislative policy encourages such investigation prior to the filing of a
claim form. The requirement of a claim form—instituted as part of a reform law
designed to make the system more cost-efficient—was manifestly intended to
relieve the employer and its insurer from having to investigate and evaluate every
possible claim, some of which might never ripen into actual claims for benefits.
The policy of prompt investigation was thus tempered by considerations of
efficiency and the avoidance of unnecessary costs; these too form part of the
legislative policy we must, in construing the statutes, seek to effectuate.
The WCAB argues that unless an employer’s breach of its duty to provide a
claim form upon learning of an injury (§ 5401, subd. (a)) is deemed to trigger
section 5402’s 90-day period, employers will have no incentive to fulfill their
obligation to provide the claim form. We disagree. In a case decided before the
1989 reform law added a claim procedure, we held that when an employer with
knowledge or notice of a work-related injury fails to inform the injured worker of
his or her compensation rights, to the worker’s prejudice, the statute of limitations
for seeking benefits is tolled until the worker learns of those rights. (Kaiser
Foundation Hospitals v. Workers’ Comp. Appeals Bd. (1985) 39 Cal.3d 57, 64-65
(Martin); see also Reynolds v. Workmen’s Comp. Appeals Bd. (1974) 12 Cal.3d
726, 729-730.) Under the current law, both the notice of potential eligibility and
the claim form are to be provided to the worker within one working day of the
employer learning or receiving notice of the injury. (§ 5401, subd. (a).)
Moreover, the notice of potential eligibility for benefits and the claim form are to
be, as far as practical, contained in a single document. (Id., subd. (b).) The
employer who fails to comply with the duty to provide a claim form would thus
ordinarily also fail to provide the notice of potential eligibility and would, under
Martin, suffer tolling of the limitation period. The possibility of such tolling
creates a significant incentive to provide the form promptly. Certain failures to
provide a claim form could, as well, subject the employer to administrative
9

sanctions. (See Cal. Code Regs., tit. 8, § 10111.1, subd. (d)(3) [penalty of up to
$5,000 for claims administrator’s failure to provide claim form on employee’s
request].) If, as the WCAB suggests, additional incentives are needed to ensure
the prompt investigation of claims, they must be provided by the Legislature.
The WCAB cites authority to the effect that ambiguous workers’
compensation laws should be construed in favor of coverage. (See, e.g., State
Farm Fire & Casualty Co. v. Workers’ Comp. Appeals Bd. (1997) 16 Cal.4th
1187, 1196.) But section 5402, subdivision (b) is not ambiguous: it unequivocally
gives the employer 90 days from “the date the claim form is filed under Section
5401” to investigate the claim. Nor does a plain-language reading of the statute
deny Wagner coverage for his claim; it merely denies him the benefit of a
presumption of compensability, leaving him free to prove in the ordinary manner
his injury’s industrial causation.
In light of the plain statutory language and other indicators of legislative
intent, we agree with the Court of Appeal that section 5402’s 90-day period for
denial of liability runs only from the date the employee files a claim form, not
from the date the employer receives notice or knowledge of the injury or claimed
injury. The Court of Appeal also noted, however, that certain egregious,
intentional violations of the duty to provide a claim form can estop the employer
from relying on the employee’s failure to file the form, and remanded for a
determination of whether such an estoppel arose here. Specifically, the Court of
Appeal held an estoppel would arise only in cases of “(1) a deliberate or
intentional refusal to provide the required claim form to the employee or (2) false
statements made to the employee, all for the purpose of preventing or delaying the
completion and filing of a claim form by the employee. A mere negligent failure
to provide a timely claim form is not sufficient.”
Honeywell agrees with the Court of Appeal that in a proper case, involving
an egregious violation, the WCAB may assert an estoppel, but the WCAB insists
its “reasonably certain” standard is more fair and reasonable than one focusing on
10

the employer’s intent. It describes the “reasonably certain” standard as
“impos[ing] on the employer a duty to investigate when he or she has been made
aware of facts which would lead a reasonable person to conclude with some
certainty that an industrial injury . . . has occurred or is being asserted.” (Wagner
v. Allied Signal Aerospace, supra, 66 Cal.Comp.Cases at pp. 488-489.) Although
appellate decisions have addressed estoppel to assert the statute of limitations,8
none has addressed the circumstances under which equitable principles would
permit a determination that section 5402’s 90-day period began to run before the
employee filed a claim form. Support for either position can be found in prior
panel decisions of the WCAB.9 We briefly address the estoppel issue to provide
guidance to the WCAB on remand and in future cases.

8
In Benner v. Industrial Acc. Com. (1945) 26 Cal.2d 346, 348-350, we held
the employer’s repeated requests for more time for medical investigations, which
induced the applicant to delay filing an application for adjudication of benefits,
estopped the employer from asserting the statute of limitations. We also
seemingly applied equitable principles to toll the running of the statute of
limitations, based on the employers’ failure to give the employees information, in
Martin, supra, 39 Cal.3d at pages 62-66, and Reynolds v. Workmen’s Comp.
Appeals Bd.
, supra, 12 Cal.3d at pages 729-730. Though neither decision rests
expressly on estoppel or equitable tolling grounds, Reynolds (at p. 730) relies
crucially on Mihesuah v. Workmen’s Comp. Appeals Bd. (1972) 29 Cal.App.3d
337, 340-341, which expressly held the employer estopped to assert the statute of
limitations. Martin, in turn, followed Reynolds, which it found to have been
reinforced by statutory and administrative rule changes in the interim. (Martin,
supra, at p. 64.) But neither these decisions nor Kaiser Foundation Hospitals v.
Workers’ Comp. Appeals Bd.
(1977) 19 Cal.3d 329, which the WCAB also cites,
involved running of the 90-day investigative period, and none provides concrete
guidance on how estoppel principles are properly applied to that determination.
9
See Janke v. State of Calif., Dept. of Justice (1991) SAC 169000, 19 Cal.
Workers’ Comp. Rptr. 310, 311 (90-day period began running when employee
made request for benefits but employer refused to provide claim form: “The
Board cannot and will not allow the claim procedure to be manipulated either
intentionally or negligently to extend the period of time during which the
employer must accept or reject the claim”); Shoai-Ahari v. Zenith Ins. Co. (1992)

(footnote continued on next page)
11



The basic principles of equitable estoppel are well established and easily
stated. “Whenever a party has, by his own statement or conduct, intentionally and
deliberately led another to believe a particular thing true and to act upon such
belief, he is not, in any litigation arising out of such statement or conduct,
permitted to contradict it.” (Evid. Code, § 623.) “ ‘Generally speaking, four
elements must be present in order to apply the doctrine of equitable estoppel:
(1) the party to be estopped must be apprised of the facts; (2) he must intend that
his conduct shall be acted upon, or must so act that the party asserting the estoppel
had a right to believe it was so intended; (3) the other party must be ignorant of the
true state of facts; and (4) he must rely upon the conduct to his injury.’ ” (City of
Long Beach v. Mansell (1970) 3 Cal.3d 462, 489, quoting Driscoll v. City of Los
Angeles (1967) 67 Cal.2d 297, 305.)
Applying these principles to the running of section 5402’s 90-day period,
we conclude an employer generally will be estopped to deny the period began
running before the filing of a claim form only if (1) the employer, knowing the
employee had suffered or was asserting an industrial injury, refused to provide a
claim form, or misrepresented the availability of or the need for the employee to
file a claim form; (2) the employee was actually misled into believing that no
claim form was available or necessary and failed to file one for that reason; and
(3) because of this reliance, the employee suffered some loss of benefits or setback
as to the claim.
The applicant need not show that the employer’s agents consciously or
deliberately set out to prevent or delay the employee’s filing a claim. “ ‘It is well

(footnote continued from previous page)
OAK 195322, 21 Cal. Workers’ Comp. Rptr. 14, 16 (employer not estopped to
deny 90-day period began before filing of claim form); Thompson v. County of
Stanislaus
(1996) STK 102540, 106130, 25 Cal. Workers’ Comp. Rptr. 24, 25
(applying “reasonably certain” standard to determine when period began running).
12



settled that negligence, that is, careless and culpable conduct, is as [a] matter of
law equivalent to an intent to deceive and will satisfy the element of fraud
necessary to an estoppel. Of course, the neglect, to operate as an estoppel, must be
in respect to some duty owing to the party asserting it.’ ” (Fleishbein v. Western
Auto S. Agency (1937) 19 Cal.App.2d 424, 428, quoting Parke v. Franciscus
(1924) 194 Cal. 284, 297; accord, Crestline Mobile Homes Mfg. Co. v. Pacific
Finance Corp. (1960) 54 Cal.2d 773, 778-779.) An employer owes a clear duty
under section 5401, subdivision (a) to provide a claim form and notice of potential
eligibility when it learns an industrial injury has occurred or is being asserted. For
the employer, through its negligence, to violate that duty, resulting in the
employee’s prejudicial reliance, and then to assert the 90-day period was delayed
until the employee learned of his or her rights and filed a claim form, would be an
unfair change of position giving rise to an estoppel.
We nonetheless agree with the Court of Appeal that the WCAB’s
“reasonably certain” standard, which looks to negligence in assessing whether an
industrial injury has occurred or is being asserted, is inequitable. The employer’s
duty under section 5401 arises when it has been notified in writing of an injury by
the employee (§ 5400) or has “knowledge” of the injury or claim from another
source (§ 5402, subd. (a)); it does not arise whenever the employer learns of facts
that would “lead a reasonable person to conclude with some certainty that an
industrial injury . . . has occurred or is being asserted” (Wagner v. Allied Signal
Aerospace, supra, 66 Cal.Comp.Cases at p. 489). The duty arises when the
employer knows of an injury or claim, not when it should have known, and to
establish an estoppel in the absence of a breach of duty requires a showing of
actual fraudulent intent, rather than mere negligence. (Fleishbein v. Western Auto
S. Agency, supra, 19 Cal.App.2d at p. 428.)
The WCAB’s standard, moreover, ignores the detrimental reliance element
of equitable estoppel. (See American Can Co. v. Industrial Acc. Com. (1962) 204
Cal.App.2d 276, 278-279 [employer not estopped to assert statute of limitations
13

where no evidence applicant relied on conduct or words of employer’s agents to
delay claim].) Under the WCAB rule, the 90-day period apparently would run
from the point the employer should have known of the injury and failed to provide
the claim form, regardless of whether the employee was actually misled into
believing no such form was available or required, and of whether delay in filing a
claim form resulted in any prejudice to the employee’s benefits or claim.10 The
result would be that an injury could be presumed without proof to be compensable,
even though the employee was aware of the existence of the claim form and the
reasons for filing one. Such inequity would not be consistent with the goal of
estoppel, which “is applied defensively; it operates to prevent one from taking an
unfair advantage of another but not to give an unfair advantage to one seeking to
invoke the doctrine.” (Varela v. Board of Police Commissioners (1951) 107
Cal.App.2d 816, 822.)
For these reasons, we conclude the Court of Appeal correctly held
Honeywell’s failure to provide a claim form in October 1998 began the 90-day
period under section 5402, subdivision (b) if and only if the parties’ words and
conduct sufficed to establish an estoppel precluding Honeywell from asserting
otherwise. The matter was correctly remanded to the WCAB for further
proceedings on that question.

10
Employers are not the only source from which employees can obtain claim
forms. The unified claim form and notice of potential eligibility for benefits
prescribed in section 5401 is available on the Division of Workers’ Compensation
(DWC) Web site <http://www.dir.ca.gov/dwc/forms.html> (as of Feb. 10, 2005)
and at DWC offices. (1 Cal. Workers’ Compensation Practice (Cont.Ed.Bar 4th
ed. 2004) § 12.15, p. 792.)
14



DISPOSITION
The judgment of the Court of Appeal is affirmed.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
BROWN, J.
MORENO, J.

15



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Honeywell v. Workers’ Compensation Appeals Board
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 104 Cal.App.4th 829
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S113201
Date Filed: February 10, 2005
__________________________________________________________________________________

Court:


County:
Judge:

__________________________________________________________________________________

Attorneys for Appellant:


Kegel, Tobin & Truce and D'Arcy T. Swartz for Petitioner.

Clopton, Penny & Brenner and Ronald R. Kolitz for California Self-Insurer Association as Amicus Curiae
on behalf of Petitioner.

Laughlin, Falbo, Levy & Moresi, and James C. Hester for California Workers' Compensation Defense
Attorneys Association as Amicus Curiae on behalf of Petitioner.

Finnegan, Marks, Hampton & Theofel and Ellen Sims Langille for California Workers’ Compensation
Institute as Amicus Curiae on behalf of Petitioner.

__________________________________________________________________________________

Attorneys for Respondent:

Vincent Bausano and Neil P. Sullivan for Respondent Workers’ Compensation Appeals Board.

Turchin & Turchin, Law Offices of Raymond L. Turchin, Raymond L. Turchin; and Florette Turchin for
Respondent William Wagner.

William A. Herreras and John Messer for California Applicants' Attorney Association as Amicus Curiae on
behalf of Respondent William Wagner.



16



Counsel who argued in Supreme Court (not intended for publication with opinion):

D’Arcy T. Swartz
Kegel, Tobin & Truce
330 Golden Shore Drive, Suite 150
Long Beach, CA 90802
(562) 437-1108

Vincent Bausano
Workers’ Compensation Appeals Board
455 Golden Gate Avenue, Suite 9328
San Francisco, CA 94142-9459
(415) 703-4580

Florette Turchin
4715 Alta Canyada Road
Lan Canada, CA 91011-2035
(818) 459-0312

17


Opinion Information
Date:Docket Number:
Thu, 02/10/2005S113201

Parties
1Workers Compensation Appeals Board (Respondent)
Represented by Vincent Bausano
Department Of Industrial Relations
P O Box 429459
San Francisco, CA

2Workers Compensation Appeals Board (Respondent)
Represented by Neil P. Sullivan
Workers Comp Appeals Board
455 Golden Gate Ave 9FL
San Francisco, CA

3Honeywell, Inc. (Petitioner)
Represented by Thomas D'Arcy Ferreira
Kegel, Tobin & Truce
2535 Kettner Blvd., Ste. 3B2
San Diego, CA

4Wagner, William (Real Party in Interest)
Represented by Raymond Lee Turchin
Attorney at Law
135 S. Jackson St., Ste 102
Glendale, CA

5California Applicants Attorneys Association (Amicus curiae)
Represented by William A. Herreras
Attorney at Law
200 S 13th #310
Grover Beach, CA

6California Applicants Attorneys Association (Amicus curiae)
Represented by John W. Messer
Attorney at Law
200 South 13th Street, Ste. 212
Grover Beach, CA

7California Workers Compensation Institute (Amicus curiae)
Represented by Ellen Sims Langille
Finnegan & Marks
1990 Lombard St
San Francisco, CA

8Ghitterman & Ghitterman (Opinion Modification Requestor)
Represented by Allan S. Ghitterman
Ghitterman & Ghitterman
610 Anacapa St 2FL
Santa Barbara, CA


Disposition
Feb 10 2005Opinion: Affirmed

Dockets
Jan 29 2003Petition for review filed
  Respondent (W.C.A.B.)
Jan 29 2003Request for judicial notice filed (in non-AA proceeding)
  Respondent ( W.C.A.B.)
Jan 29 20032nd petition for review filed
  real party William Wagner
Jan 30 2003Record requested
 
Jan 31 2003Received Court of Appeal record
 
Feb 14 2003Answer to petition for review filed
  petitioner Honeywell, etc., answering petition of respondent, William Wagner.
Mar 21 2003Time extended to grant or deny review
  to 4-29-03
Apr 9 2003Petition for Review Granted (civil case)
  Request for Judicial Notice Granted. Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ.
Apr 18 2003Certification of interested entities or persons filed
  by counsel for petitioner (Honeywell)
Apr 23 2003Certification of interested entities or persons filed
  by counsel for respondent (W.C.A.B.)
Apr 28 2003Certification of interested entities or persons filed
  by counsel for (RPI)
May 2 2003Opening brief on the merits filed
  by counsel for respondent (Workers' Comp. Appeals Bd.)
May 29 2003Answer brief on the merits filed
  petitioner Honeywell
May 29 2003Request for Judicial Notice received (in non-AA proceeding)
  petitioner Honeywell
Jun 16 2003Reply brief filed (case fully briefed)
  by counsel for respondent (Workers Comp.Appeals Bd.)
Jun 20 2003Received application to file amicus curiae brief; with brief
  Calif. Applicants' Attorneys Assoc. (non-party) in support of respondent.
Jun 25 2003Permission to file amicus curiae brief granted
  California Applicants' Attorneys Assoc.
Jun 25 2003Amicus Curiae Brief filed by:
  California Applicants Attorneys' Association in support of respondent. (non-party) An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jul 11 2003Response to amicus curiae brief filed
  by counsel for (Honeywell)
Jul 11 2003Response to amicus curiae brief filed
  petitoner Honeywell, Formerly Known as Allied Signal Aerospace Company responding to amicus brief of The California Applicant's Attorney Association.
Jul 11 2003Received application to file amicus curiae brief; with brief
  of California Workers' Compensation Defense Attorneys Asociation in support of petitioner Honewell.
Jul 11 2003Received application to file Amicus Curiae Brief
  Calif. Workers' Comp. Institute in support of petitioner. (brief under same cover)
Jul 14 2003Permission to file amicus curiae brief granted
  Calif. Workers Comp. Institute
Jul 14 2003Amicus Curiae Brief filed by:
  Calif. Workers Compensation Institute in support of petitioner. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jul 17 2003Request for extension of time filed
  by resp to file answer to A/C briefs, to 8-22.
Jul 21 2003Received letter from:
  Calif.Workers Compensation Def. Attorneys Assoc. (non-party) re: corrections on pgs. 6 & 9 of amicus curiae brief.
Jul 23 2003Permission to file amicus curiae brief granted
  California Workers' Comp. Defense Attorneys Assoc.
Jul 23 2003Amicus Curiae Brief filed by:
  California Workers' Comp. Defense Attorneys Assoc. in support of petitioner. An answer thereto may be served and filed by any party on or before August 22, 2003.
Jul 23 2003Extension of time granted
  for resp to file the response to the A/C briefs (Cal Workers' Comp Inst. and Cal Workers Comp Defense Attys Assn) to 8-22-03
Aug 20 2003Response to amicus curiae brief filed
  by counsel for respondent (Workers Comp. Appeals Brd.) to A/C brief of Calif. Workers Comp. Inst. and Workers Comp. Defense Attys.
Oct 9 2003Change of Address filed for:
  counsel for (Honeywell) and new telephone number
Nov 3 2004Case ordered on calendar
  12/8/04 @ 1:30pm., San Diego
Nov 15 2004Filed:
  Request from respondent to divide oral argument time.
Nov 19 2004Request for judicial notice granted
  (Honeywell)
Nov 30 2004Order filed
  The request of counsel for respondent and real party in interest to allow two counsel to argue on behalf of respondent and real party in interest at oral argument is hereby granted.
Nov 30 2004Order filed
  The request of respondent and real party in interest to allocate to Vincent Bausano 15 minutes and Florette Turchin 15 minutes of respondent's and real party in interest's 30 minute allotted time for oral argument is granted.
Dec 7 2004Order filed
  The application of Calif. Self -Insurers Association for permission to file an amicus curiae brief in support of petitioner is hereby denied as untimely.
Dec 7 2004Received application to file Amicus Curiae Brief
  Calif. Self-Insurers Assoc. (non-party)
Dec 8 2004Cause argued and submitted
 
Feb 10 2005Opinion filed: Judgment affirmed in full
  OPINION BY: Werdegar, J. --- joined by : George, C.J., Kennard, Baxter, Chin, Brown, Moreno, JJ.
Feb 22 2005Received:
  from Ghitterman & Ghitterman Attys at Law, Request to Reconsider Opinion (non-party)
Feb 22 2005Request for modification of opinion filed
  by Ghitterman and Ghitterman Attys at Law (non-party)
Mar 2 2005Time extended to consider modification or rehearing
  to and including April 8, 2005.
Mar 16 2005Request for modification denied
  Allan S. Ghitterman's request that the court reconsider its decision is treated as a request for modification of the opinion. The request is denied. Brown, J., was absent and did not participate.
Mar 16 2005Remittitur issued (civil case)
 
Mar 22 2005Received:
  receipt for remittitur from CA 2/3

Briefs
May 2 2003Opening brief on the merits filed
 
May 29 2003Answer brief on the merits filed
 
Jun 16 2003Reply brief filed (case fully briefed)
 
Jun 25 2003Amicus Curiae Brief filed by:
 
Jul 11 2003Response to amicus curiae brief filed
 
Jul 11 2003Response to amicus curiae brief filed
 
Jul 14 2003Amicus Curiae Brief filed by:
 
Jul 23 2003Amicus Curiae Brief filed by:
 
Aug 20 2003Response to amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website