Grinberg: CT Claim Barred by Statute of Limitations
Thursday, January 7, 2021 | 0
Now that we’ve all gotten over our glow and inclinations toward goodwill to all mankind and are back to being the cynical, cold-hearted naysayers of the workers’ comp world (or is that just me?), I would like to share with you one of my many gripes with the workers’ comp world.
I get that cumulative trauma happens. I get that we are all sustaining cumulative traumas that are 100% fatal, sooner or later. I get that California has made employers the general insurers for conditions that deteriorate because of time and not because of industrial activities. Fine.
But what the heck is the deal with this low bar of employees getting a free pass on the statute of limitations?
Labor Code Section 5405 requires an application to be brought within one year of the date of injury (or the date of last benefit provided). Of course, for cumulative trauma, the date of injury is defined by Section 5412 as the date that the employee both suffered disability and “either knew, or in the exercise of reasonable diligence should have known” that the disability was industrially caused.
Well, if you ask the applicant’s bar, there’s no such thing as “reasonable diligence,” and the only way an applicant can trigger LC 5412 is if there is a signed and notarized letter autographed by every physician in California and Puerto Rico telling the applicant that he or she has an industrial injury.
I am, perhaps, taking what might be called by some, artistic license in paraphrasing the position of applicants' attorneys on this point. More realistically, almost any applicants' attorney will tell you that unless the applicant is a licensed physician, there’s no way the applicant should have known the cause of any symptoms or injury.
Well, that’s not what the Labor Code says. While the medical report would satisfy “known,” there is no medical report necessary for a finding that “in the exercise of reasonable diligence should have known.”
In fact, I provided some examples where the California courts have found Section 5412 satisfied without a medical report, taking the words “should have known” at face value.
That’s why it was so refreshing to stumble across the case of Hilton v. County of Ventura, a recent panel case that originated in Sacramento before heading to the (now virtual) ninth floor of the Workers' Compensation Appeals Board in San Francisco.
After taking testimony at trial via telephone — the trial occurred in July before we had the benefit of Lifesize to do video trials — the judge concluded that the applicant was aware of the work-related nature of her injury at the time she quit her job in October of 2016 and that she failed to file an application until 2019.
Ultimately, the trial judge found that the applicant’s claim was barred by the statute of limitations and rejected her claim that “she was not aware her injury was work-related until she received a doctor’s report stating as much.”
Thank you, dear readers, for listening to my rant. But I will impose upon you by asking for one more thing: Don’t assume that a statute of limitations defense will fail in a CT claim just because you can’t find a doctor’s note that predates the application by a year saying the injury is industrial. Explore how reasonable an applicant’s professed ignorance is in the context of the claim before cutting those benefit checks.
Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.