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Grinberg: Knowledge of WC Rights Precludes Need for Claim Form

By Gregory Grinberg

Monday, November 27, 2017 | 862 | 0 | 0 min read

Here's an interesting, if unpublished, decision. Remember, folks: If you cite an unpublished decision in California you will be thrown in a gulag and will get no potatoes this winter.

The matter is that of Bolanos v. WCAB and Jimenez. Bolanos was a building owner who hired a man named Aragon who had an otherwise valid contractor’s license but had allowed his workers’ compensation insurance to lapse.

When an employee, Jimenez (“applicant”), sustained injury during the work being performed for Bolanos, Jimenez sought benefits from Aragon, who later declared bankruptcy, and then from Bolanos, who was the technical employer by operation of law.

Now comes the fun part: Though applicant filed for adjudication some three months after the date of injury, he did not actually sue Bolanos until 2011, around the time when Aragon declared bankruptcy.

Furthermore, even though an application was filed shortly after the injury in 2003 naming Aragon as the employer, and the Uninsured Employers Benefits Trust Fund was joined less than a year later, in 2004. Bolanos was not joined as a party defendant until 2009.

Bolanos then asserted that latches and the statute of limitations barred any claims against him.

The workers' compensation judge ruled in favor of applicant on the statute of limitations defense, arguing that just because the attorney knew that Bolanos was the property owner did not mean he knew Bolanos would be the ultimate employer.

Bolanos’ petition for reconsideration also did little to help his case, as the split panel concurred with the WCJ. The dissent, however, reasoned that allowing the claim against Bolanos to proceed now, joining him some six years after the date of injury, would encourage more stale claims to be presented.

Also, because applicant had an attorney who was aware of Bolanos’ position in the case, the claim should be barred by the statute of limitations.

The Court of Appeal granted review and, in an unfortunately unpublished decision, reversed the Workers' Compensation Appeals Board majority and the WCJ. The court then went on to apply a one-year statute of limitations. 

Citing McGee Street Productions v. WCAB (2003), the court noted that a new defendant cannot be added after the statute of limitations has run.

Furthermore, the statute was not tolled because more than a year prior to adding Bolanos as a party, applicant was aware of his rights to file a workers’ compensation claim, as evidenced by the fact that he pursued these rights by filing a claim against Aragon.

Here’s my favorite part of the ruling, however: The UEBTF argued that Bolanos was required to provide applicant with a claim form. The Court of Appeal ruled that a claim form must be provided only “where the employee does not know of his right to file a claim. Here, although Bolanos never complied with section 5401, (the) filing of a timely workers’ compensation claim demonstrates he was not ignorant of his rights."

Gregory Grinberg is workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.


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