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Filed 3/24/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

COUNTY OF RIVERSIDE,

Petitioner,

v.

WORKERS' COMPENSATION 

APPEALS BOARD and PETER G. 

SYLVES,

Respondents.

E065688

(WCAB Case No. ADJ9538021)

OPINION

ORIGINAL PROCEEDINGS; writ of review. Order affirmed.

Law Office of Louis D. Seaman and Louis D. Seaman for Petitioner.

No appearance for Respondent Workers’ Compensation Appeals Board.

Law Offices of Lawrence R. Whiting and William G. Cotter for Respondent 

Peter G. Sylves.

Petitioner, County of Riverside (the County), challenges findings by the Workers’ 

Compensation Appeals Board (WCAB) finding that the application for adjudication of 
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claim by respondent, Peter G. Sylves, was timely filed, and that Labor Code1section 

5500.5, subdivision (a) (section 5500.5(a)), did not bar liability on the County’s part. 

The order of the WCAB is affirmed for the reasons we state post.

FACTUAL AND PROCEDURAL BACKGROUND

From December 12, 1998, to October 28, 2010, Sylves was employed by the 

County as a deputy sheriff. He took a service retirement and then worked for the Pauma 

Police Department on a reservation belonging to the Pauma Band of Luiseno Indians

(Pauma Band), which is a federally recognized Indian tribe. Sylves’s employment with 

the Pauma Police Department lasted from December 28, 2010, through July 4, 2014.

Sylves filed an application for adjudication of claim on July 16, 2014. He claimed 

a continuous trauma for “hypertension, GERDS [gastroesophageal reflux disease], left 

shoulder, low back and both knees.”

On June 8, 2015, the parties appeared before a workers’ compensation judge 

(WCJ) for adjudication of Sylves’s claim. On July 6, 2015, the WCJ issued his findings 

of fact. Under the heading titled “Statute of Limitations,” he found: “Pursuant to Labor 

Code section 5500.5, applicant’s continuous trauma is limited to the last year of injurious 

exposure, even if it is with the Pauma Tribal Police.” The WCJ found that Sylves’s knee

and left shoulder injuries, his GERDS, and his sleep disorder were not compensable 

injuries arising in and out of employment. However, he also found that Sylves’s 

 

1 Unless otherwise specified all further statutory references are to the Labor Code.
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hypertension and back injury were compensable and arose from employment with the 

County.

Sylves and the County both moved for reconsideration of the WCJ’s ruling. The 

County attacked the evidence allegedly showing that Sylves suffered from labordisabling hypertension or back problems during his employment with the county, and it 

argued section 5500.5 meant that liability could only be imposed against the Pauma 

Police Department. In his motion, Sylves argued that section 5500.5 has nothing to do 

with the statute of limitations, that the County failed to meet its burden of proving he 

failed to comply with the limitations period in section 5405, and that section 5500.5 did 

not limit liability to the Pauma Police Department because the Pauma Band is a federally

recognized tribe over which the WCAB has no jurisdiction.

The WCAB granted both petitions for reconsideration “to further study the factual 

and legal issues.” It then filed an opinion and decision after reconsideration in which it 

found “substantial medical evidence support[ing] industrial injury to [Sylves’s] left 

shoulder, bilateral knees, GERD and sleep disorder.” With respect to the statute of 

limitations, the WCAB explained that the time in which to file a claim did not begin to 

run until a doctor told him the symptoms for which he had been receiving treatment were 

industrially related; since medical confirmation did not occur until 2013, Sylves’s 2014 

application was timely. The WCAB further found that section 5500.5 “is not a Statute of 

Limitations but provides for a supplemental proceeding in which multiple defendants 

have an opportunity to apportion liability.” Finally, it agreed with Sylves that section 

5500.5 cannot limit liability to the Pauma Police Department in this case because the 
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WCAB lacks jurisdiction over the tribe. In conclusion, the decision after reconsideration 

made factual findings that Sylves, “while employed during the period 12/27/1998 through 

10/28/2010, as a Deputy Sheriff, by the County of Riverside, sustained injury arising out 

of and in the course of employment in the form of” hypertension, injuries to the lower 

back, left shoulder, both knees, GERD, and a sleep disorder, as well as that the County 

“failed to meet its burden of proof on the Statute of Limitations defenses raised herein.”

This petition followed. We granted review on April 27, 2016, in order to provide 

better clarity regarding the application of section 5500.5

DISCUSSION

The County advances two arguments:

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that the WCAB erred in finding Sylves’s 

application for adjudication of claims to have been timely, and that it violated section 

 

2 The petition “asserts the following as grounds for review: [¶] 1. That the 

opinion and order granting reconsideration and decision after reconsideration of the 

Appeals Board was not supported by substantial evidence[; and ¶] 2. The opinion of the 

Worker’s Compensation Appeals Board misapplied the law as defined in the Labor Code 

as it applied to Labor Code § 5500.5, 5412 and statute of limitations, section 5405, 

reaching its decision and was therefore unreasonable.” The answer asks us to summarily 

deny the petition because petitioner failed to attach all relevant medical evidence despite 

arguing that insufficient evidence supports the WCAB’s opinion. (Cal. Rules of Court, 

rule 8.495(a)(2) [“If the petition claims that the board’s ruling is not supported by 

substantial evidence, it must fairly state and attach copies of all the relevant material 

evidence”].) We decline to do so because, as we construe it, the brief supporting the 

petition does not actually attack the sufficiency of the medical evidence, but instead asks 

us to answer the following two questions: (1) “Did the [WCAB] err in its application of 

Labor Code § 5405 in finding that the application for adjudication of claim had been filed 

timely by applicant not having worked for the County of Riverside in nearly four years?”; 

and (2) “Was it error for the [WCAB] to ignore Labor Code section 5500.5 and place all 

responsibility for the injury on the County of Riverside despite the last four years of 

injurious exposure being with the Pauma Police Department?” Neither of these requires 
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5500.5(a) in assigning liability to the County even though Sylves’s last four years of 

exposure had been with a different employer. Neither of these succeeds.

“In considering a petition for writ of review of a decision of the WCAB, this 

court’s authority is limited. This court must determine whether the evidence, when 

viewed in light of the entire record, supports the award of the WCAB. This court may 

not reweigh the evidence or decide disputed questions of fact. [Citations.] However, this 

court is not bound to accept the WCAB’s factual findings if determined to be 

unreasonable, illogical, improbable or inequitable when viewed in light of the overall 

statutory scheme. [Citation.] Questions of statutory interpretation are, of course, for this 

court to decide.” (Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd. (1993) 16 

Cal.App.4th 227, 233.)

1. Petitioner has given us no reason to find that the application for adjudication 

of claims was untimely. 

Sylves was required to file his application for adjudication of claims within, as 

relevant here, one year of “[t]he date of injury.” (§ 5405, subd. (a).) “The date of a 

cumulative injury shall be the date determined under Section 5412.” (§ 3208.1.) 

Because the injuries Sylves allege are all cumulative, we look to section 5412, which 

reads: “The date of injury in cases of occupational diseases or cumulative injuries is that 

date upon which the employee first suffered disability therefrom and either knew, or in 

 

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us to review the sufficiency of the medical evidence. We therefore do not do so, and the 

County’s request is moot.
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the exercise of reasonable diligence should have known, that such disability was caused 

by his present or prior employment.” The County bears the burden of proving that 

Sylves’s application for adjudication of claims was untimely. (Chambers v. Workers’ 

Comp. Appeals Bd. (1968) 69 Cal.2d 556, 559.)

We pause briefly to emphasize the way in which the nature of the petition 

necessarily narrows our inquiry into this issue. In attacking the timeliness of the 

application for adjudication, the County implies that Sylves, who had a long history of 

treatment for orthopedic injuries, must have had knowledge of industrial causation well 

before he claimed in this proceeding. For example, the County argues this preexisting 

knowledge should have prevented the WCAB from applying the presumptions in sections 

3212.2 and 3212.5. It also asserts that Sylves retired because of his knees, not because of 

his back. With the exception of some quotes from the opinions by the WCJ and the 

WCAB, for which the County directs us to specific page and line number citations, no 

citations to the record accompany the vast majority of the County’s factual assertions.

We therefore do not pass on the validity or veracity of these claims. (See, e.g., Colt v. 

Freedom Communications, Inc. (2003) 109 Cal.App.4th 1551, 1560 [“No record 

reference is furnished for this statement, and we may thus ignore it.”].) Instead, we 

remind the County of the following rules of general application:

“It is within the province of the WCAB to make the factual determination as to 

whether an employee has knowledge of an industrial related injury and, if so, when that 

knowledge arose. [Citation.] An appellate court ‘will not interfere with the board’s 

factual findings if they are supported by substantial evidence or by reasonable inferences 
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drawn from the testimony adduced. [Citations.]’ ” (Galloway v. Workers’ Comp.

Appeals Bd. (1998) 63 Cal.App.4th 880, 886.) Moreover, “[t]he burden of proving that 

the employee knew or should have known rests with the employer. This burden is not 

sustained merely by a showing that the employee knew he had some symptoms.” (City of 

Fresno v. Workers’ Comp. Appeals Bd. (1985) 163 Cal.App.3d 467, 471; see Id. at p. 473 

[“an applicant will not be charged with knowledge that his disability is job related 

without medical advice to that effect unless the nature of the disability and applicant’s 

training, intelligence and qualifications are such that applicant should have recognized 

the relationship between the known adverse factors involved in his employment and his 

disability.”].) Finally, “The Labor Code is to be liberally construed for the protection of 

persons injured in the course of their employment.” (Id. at p. 471.)

In this case, the WCAB opinion summarizes Sylves’s testimony and then relies on 

it to find that doctors first told him his medical conditions were related to his employment 

within one year of his filing an application for adjudication of claims; the summary of 

evidence from the proceeding before the WCJ supports the conclusion that Sylves 

testified he did not receive an opinion that his conditions were work related until 2013.

“This finding is [therefore] supported by substantial evidence and binds this court on 

review.” (Western Growers Ins. Co., v. Workers’ Comp. Appeals Bd., supra, 16 

Cal.App.4th at p. 235.)

The one place the County cites evidence in support of its assertions is when 

arguing that Sylves gave inconsistent statements about the intensity of his work with the 

Pauma Police Department. This is because, while Sylves testified that work on the 
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reservation was less strenuous than work for the County, Dr. Lal’s report indicated that 

Sylves did “all the physical activities of a police officer” on the reservation. As best we 

can tell, the County asks us to find Sylves less than truthful in his testimony about when 

he first found out his medical conditions might be work related. As we have already 

indicated, we may not reweigh evidence in this proceeding. We “also may not isolate 

facts which support or disapprove of the WCAB’s conclusions and ignore facts which 

rebut or explain the supporting evidence.” (Zenith Insurance Co. v. Workers’ Comp.

Appeals Bd. (2008) 159 Cal.App.4th 483, 490.) Here, Sylves also testified that he did 

“not recall giving such a history to Dr. Lal,” as well as that “[h]e attempted to tell Dr. Lal 

the difference between the two jobs, but he is not sure that Dr. Lal understood.” The 

County does not acknowledge this testimony exists, let alone explain why it does not 

explain the inconsistency to which the petition calls our attention.

The remaining issue the County raises relates to how section 5500.5 affects the 

calculation of the limitations period applicable to Sylves’s application for adjudication of 

claims. Our short answer is that it does not.

Section 5500.5(a) reads, in relevant part: “Except as otherwise provided in 

Section 5500.6, liability for occupational disease or cumulative injury claims filed or 

asserted on or after January 1, 1978, shall be limited to those employers who employed 

the employee during a period of [one] year[][3]immediately preceding either the date of 

 

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 The full text is: “Except as otherwise provided in Section 5500.6, liability for 

occupational disease or cumulative injury claims filed or asserted on or after January 1, 

1978, shall be limited to those employers who employed the employee during a period of 
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injury, as determined pursuant to Section 5412, or the last date on which the employee 

was employed in an occupation exposing him or her to the hazards of the occupational 

disease or cumulative injury, whichever occurs first.” Section 5500.5 was originally 

enacted to codify the principles announced in Colonial Ins. Co. v. Industrial Acc. Com.

(1946) 29 Cal.2d 79, 82 (Colonial Ins.), which held that an injured employee should have 

the right to “obtain an award for the entire disability against any one or more of 

successive employers or successive insurance carriers if the disease and disability were 

contributed to by the employment furnished by the employer chosen or during the period 

covered by the insurance even though the particular employment is not the sole cause of 

the disability,” with a corresponding right on the part of the employers and/or insurers to 

seek apportionment and contribution from earlier employers and/or insurers. (See 

Tidewater Oil Co. v. Workers’ Comp. Appeals Bd. (1977) 67 Cal.App.3d 950, 957

 

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four years immediately preceding either the date of injury, as determined pursuant 

to Section 5412, or the last date on which the employee was employed in an occupation 

exposing him or her to the hazards of the occupational disease or cumulative injury, 

whichever occurs first. Commencing January 1, 1979, and thereafter on the first day of 

January for each of the next two years, the liability period for occupational disease or 

cumulative injury shall be decreased by one year so that liability is limited in the 

following manner:

For claims filed or

Asserted on or after: The period shall be:

January 1, 1979 three years

January 1, 1980 two years

January 1, 1981 and thereafter one year
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(Tidewater Oil Co.).) The current version of section 5500.5 continues this codification 

by allowing an employee to select one or more employers against whom to proceed, and 

then permitting “any employer held liable under the award [to] institute proceedings 

before the appeals board for the purpose of determining an apportionment of liability or 

right of contribution.” (§ 5500.5, subd. (e).)

The purpose of the limitation contained in subdivision (a) of section 5500.5 was to 

“alleviate the difficulties encountered by the parties in complying with the requirements 

of former section 5500.5 ‘whereby employees and their attorneys were frequently 

compelled to expend much time, effort and money in tracing the applicant’s employment 

history over the entire course of his adult life.

[4]

’ ” (Tidewater Oil Co., 67 Cal.App.3d at 

p. 958.) Limiting the liability of the defendants in a workers’ compensation case is not 

the same as prescribing the time in which that case can be filed. As neither the language 

nor the history of section 5500.5 evidences a concern with the limitations period for filing 

an application for workers’ compensation benefits, we reject the County’s suggestion that 

the WCAB violated section 5500.5(a) when it found Sylves’s claims to be timely. 

Section 5500.5(a) does not relate to the statute of limitations for filing an application for 

adjudication of benefits.

 

4 The statute was not, as the County asserts without citation to authority, “clearly 

put in place to avoid situations where employees could reach back over numerous years 

and sue an unsuspecting employer who had no notice of such injury when, in fact, that 

applicant had continued to perform the same occupation with a subsequent employer 

being subject to the continued injurious exposure.”
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2. The WCAB did not violate section 5500, subdivision (a), when it imposed 

liability on the County.

We construe the petition to make the separate but related argument that the

WCAB violated section 5500, subdivision (a), by imposing liability on the County even 

though it is undisputed that Sylves had worked for the Pauma Police Department for 

approximately the last four years of his employment. We disagree.

As indicated above, section 5500.5(a) limits liability to those employers who 

employed Sylves in the year “immediately preceding either the date of injury, as 

determined pursuant to Section 5412, or the last date on which the employee was 

employed in an occupation exposing him or her to the hazards of the occupational disease 

or cumulative injury, whichever occurs first.” It is undisputed that Sylves was employed 

by the Pauma Police Department, and not by the County, from December 28, 2010, to 

July 4, 2014, and that he did not have another employer after that time. We will assume 

for the sake of argument that Sylves’s employment with the Pauma Police Department 

was at least rigorous enough to expose him to “the hazards of the occupational disease or 

cumulative injury.” (§ 5500.5(a).) If, as indicated above, Sylves’s date of injury did not 

occur until 2013, when doctors first told him that his ailments were industrially related, 

section 5500.5(a) might seem to limit liability to the Pauma Police Department, as 

petitioner contends.

This result does not follow in this case for two reasons. First, and as the WCAB 

opinion noted, the Pauma Police Department is not a party, and no claim has been made 

as to it. Section 5500.5 expedites matters by allowing a claimant to proceed against one 
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or a small number of employers or carriers, while still allowing those employers and 

carriers to join and seek contribution from other employers and carriers. What it does not 

do is allow County to “diminish, restrict, or alter in any way the recovery previously 

allowed the employee or his or her dependents.” (§ 5500.5, subd. (e).) Applying section 

5500(a) in the manner the County recommends would have the practical effect of 

allocating liability to Sylves, thereby reducing his recovery in violation of this provision. 

It would also be “not in consonance with the required liberal interpretation and 

application of the workmen's compensation laws.” (Colonial Ins., supra, 29 Cal.2d at p. 

82.)

Second, the County fails to account for the following language from section 

5500.5(a): “In the event that none of the employers during [last year] of occupational 

disease or cumulative injury are insured for workers’ compensation coverage or an 

approved alternative thereof, liability shall be imposed upon the last year of employment 

exposing the employee to the hazards of the occupational disease or cumulative injury for 

which an employer is insured for workers’ compensation coverage or an approved 

alternative thereof.” The County does not contest that the Pauma Police Department 

belongs to a federally recognized Indian tribe, and the answer and the record both 

indicate this is in fact so. The WCAB lacks jurisdiction over federally recognized Indian 

tribes. (Middletown Rancheria v. Workers’ Comp. Appeals Bd. (1998) 60 Cal.App.4th 

1340, 1343 [“The Appeals Board does not possess subject matter jurisdiction over Tribe 

as a matter of law.”].) It seems to us the fact that the Pauma Police Department is not 

subject to the WCAB’s jurisdiction means the department was not “insured for workers’
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compensation coverage or an approved alternative thereof.” (§ 5500.5(a).) 

Consequently, liability is imposed on the next employer in line that had workers’ 

compensation insurance. (See Portland Trailblazers v. TIG Insurance Company (2007) 

72 Cal.Comp.Cases 154.) In this case, that employer is the County.

3. We will not award Sylves his attorney fees under section 5801

Sylves asks us to remand to the WCAB for an order obligating County to pay the 

attorney fees he spent answering the petition on the ground that the County had “no 

reasonable basis for” filing it. (§ 5801.) While we disagree with the County’s 

contentions, we cannot say the petition was baseless, as we have found no other reported 

decision from a Court of Appeal that discusses the application of section 5500.5(a) in the 

context of either the limitations period for filing an application for adjudication of claims 

or the WCAB’s lack of jurisdiction over a federally recognized Indian tribe. 

DISPOSITION

The order is affirmed. Sylves’s request for a remand for determination of attorney 

fees under section 5801 is denied.

Costs on appeal are awarded to respondent.

CERTIFIED FOR PUBLICATION

McKINSTER

P. J.

We concur:

MILLER

J.

SLOUGH

J.