Grinberg: CT Declare Barred by Statute of Limitations| Staff Compensation Information

By Gregory Grinberg

Thursday, January 7, 2021 | 61 | 0 | min read

Now that we’ve all overcome our glow and goodwill for all of humanity and are back to being the cynical, coldhearted naysayers of the worker comp world (or is that just me?), I want to share one of mine with you many problems with the worker’s comp world.

Gregory Grinberg

I understand that cumulative trauma is happening. I understand that we all suffer cumulative trauma that sooner or later is 100% fatal. I understand California has made employers general insurers for terms that get worse with time, not industrial activity. Fine.

But what the heck is the deal with this low number of employees receiving a free statute of limitations pass?

According to Section 5405 of the Labor Code, an application must be made within one year of the date of the violation (or the date of the last service performed). Of course, for cumulative trauma, the date of injury is defined in Section 5412 as the date on which the worker both suffered a disability and “either knew or should have known with reasonable care” that the disability was caused by industry.

There is no such thing as “reasonable due diligence” in asking the applicant’s attorney and the only way to trigger LC 5412 is if every doctor in California and Puerto Rico produces a signed and notarized letter notifying the applicant that he or she is doing one Has an accident at work.

Perhaps, as an artistic license might call it, I am taking the position of the applicants’ attorneys on this point. More realistically, almost any lawyer for the applicant will tell you that if the applicant is not a licensed physician, there is no way the applicant should have known the cause of the symptoms or injury.

Well, that’s not in the Labor Code. While the medical report would satisfy “known”, no medical report is required to determine that “if reasonable care is exercised, it should be known”.

In fact, I’ve cited a few examples where the California courts found Section 5412 to be satisfied with no medical report and took the words “should have known” at face value.

This is why it was so refreshing to stumble upon the Hilton v County of Ventura case, a recent Sacramento panel case, before stepping onto the (now virtual) ninth floor of the Workers’ Compensation Appeals Board in San Francisco.

After giving testimony over the phone – the court hearing was held in July before LifeSize allowed us to conduct video exams – the judge concluded that the complainant was aware of the work-related nature of her injury at the time she was fired in October 2016 and that she was has not submitted an application until 2019.

Ultimately, the trial judge found that the complainant’s lawsuit was precluded by the statute of limitations and dismissed her claim that “she did not know that her injury was work-related until she received a medical report stating it”.

Thank you, dear readers, for listening to my chatter. But I’m going to force something on you by asking one more thing: Don’t assume a statute of limitations will fail on a CT claim just because you can’t find a doctor’s letter a year before the application that says that the violation is industrial. Before cutting these performance tests, check how reasonable an applicant’s alleged ignorance of the claim is.

Gregory Grinberg is the managing partner of Gale, Sutow & Associates’ SF Bay South office and a certified employee compensation law specialist. This post was reprinted with permission from Grinberg’s WCDefenseCA blog.