Cleveland: The Statute of Limitations for Latent Injury Discovery

Tuesday, December 13, 2022 | 0

In Alabama, all disputed workers’ compensation claims are handled through the regular court system. Alabama is the only remaining state to handle disputed claims in this manner.

Karen Cleveland
(fishnelson.com)

The statute of limitations (SOL) for filing a workers’ compensation lawsuit is two years from the date of injury or date of last indemnity payment. For cumulative trauma or exposure claims, it is two years from the date of last exposure. One exception to the two-year SOL is if the claimed injury was latent and could not reasonably have been discovered until a later date.

In the recently released opinion of Dillard v. Calvary Assembly of God, the Alabama Court of Appeals affirmed and clarified that a latent injury exception to the SOL is not applicable to situations where a reasonably minded employee knows he has a compensable injury even when there has been no lost time from work. Further, an injury will not be considered latent based on the employee not knowing the full extent of the injury.

In Dillard, the employee testified that he had frequent low back pain. Despite being off work following each of his two back surgeries, he never claimed and did not receive temporary total disability benefits. As a result, the trial court concluded that a reasonable person would have known the nature, seriousness and probable compensable nature of the work-related injury as of the date the first surgery was recommended as a possible treatment option.

Karen Cleveland is an attorney with Fish Nelson & Holden LLC, headquartered in Birmingham, Alabama. This entry is republished, with permission, from the firm's Alabama Workers' Comp Blawg.