Grinberg: On Knowledge and Timely Filing of Claims

Thursday, October 26, 2023 | 0

As some of my beloved readers may know, I am an escapee from the Soviet Union.  Being such makes one a relative expert in propaganda. Thus, I can tell you two things that you can take to the proverbial bank on this subject:

• 

  Gregory Grinberg

  Real propaganda is when a British person takes a good look at something (syntax: “Be a good chap and take a proper gander at my tea collection. Cheerio!”).
• In California workers’ compensation law, what is good for the goose is not necessarily good for the gander.

Admittedly, that setup for a dad joke was pretty long, not unlike the neck of a goose since we’re on the subject, but I hope you’ll bear with me while we get to the point I'm trying to make.

In a recent panel decision, the Workers' Compensation Appeals Board relied on the fact that applicant had the guidance of an attorney to determine that he waited too long to pursue Subsequent Injuries Benefit Trust Fund benefits.

The case is that of Roberts v. Perkins and Will Group. Applicant had a case from 2007 that resolved via stipulated award for 41% permanent disability in 2012. He had another stipulated award for a 2009 cumulative trauma injury that resulted in a separate stipulated award of 53%, also in 2012. He then waited until 2019 to file an application for SIBTF benefits. 

The parties proceeded to trial on whether applicant was permanently totally disabled and whether the statute of limitations barred his SIBTF claim. Applicant was represented for his original two claims but testified at trial that he did not become aware of the existence of SIBTF until late 2018. 

The trial judge found that applicant "did not file his claim against SIBTF within a reasonable time from when he knew or should have known that he had a probable claim and that his claim was thus barred as untimely.” 

On appeal, applicant argued that the workers' compensation judge erred in “taking applicant’s representation into account” in concluding applicant should have known about his eligibility for SIBTF benefits.

In affirming the WCJ’s finding, the WCAB panel reasoned that applicant had five years from the date of his second injury to file for SIBTF benefits, as the original injury was already more than 35% PD. But, what’s more important to me (as a defense attorney, I rarely, if ever, have to address SIBTF issues) is that the WCAB found no error in imputing knowledge of SIBTF claims to applicant because applicant was represented.

Well, if such logic is good for the goose, why not share that sauce with the rest of the flock?

When an applicant retains counsel, knowledge of that attorney SHOULD be imputed to the injured worker, but not just about SIBTF; about cumulative traumas as well. Any applicants' attorney who claims to not know that cumulative traumas exist or constitute potential claims should hang up his or her spurs and turn in his or her State Bar card. Of course, the AA Bar is intimately familiar with cumulative trauma claims.

If that’s the case, why does so much of the WCAB resist settlements for specific injuries that include resolution of potential but unclaimed cumulative traumas through that date?  Why doesn’t the date of injury for any subsequently filed CTs tie into when applicant became represented?

Knowledge of what a CT is should absolutely be imputed to applicants upon becoming represented, whether that representation is for a specific injury or a cumulative trauma.  And if there are applicants' attorneys out there who really are keeping the existence of CT claims a secret from their clients, shouldn’t that be an issue between those attorneys and the State Bar?

Just for context, as you curse me for my harsh demands for applicants and their attorneys, I ask you: What is necessary for an applicant to claim a CT? Does the applicant first have to get a report from a physician confirming that there is, in fact, an industrial CT? Or is it enough for applicants to simply make the allegation? 

If there is no requirement to first obtain a medical report of this sort, then why is there this fantasy that applicants could not possibly have known that there was a CT until there was such a medical report?

I would love to see the same reasoning as described in Roberts applied to cumulative traumas, the questions of date of injury and the statute of limitations defense. If it were so done, perhaps we would see fewer cases of the applicants' bar skirting the post-termination defense by alleging the very same injury that would otherwise be barred by alleging a CT instead. Perhaps we would finally see world peace and all the ills that plague the human experience vanish before our eyes. Is that too much?

Gregory Grinberg is managing partner of the Tobin Lucks office in Burlingame and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.