Grinberg: Statute of Limitations Bars MVA Declare| Staff Compensation Information

By Gregory Grinberg

Wednesday, April 28, 2021 | 0

It is rare enough that the statute of limitations precludes a claim. First of all, it is usually an “unfavorable” defense, as disputes on the matter are more likely to be settled.

Gregory Grinberg

Furthermore, the defendant must prove that the limitation period precludes a claim, since the limitation period represents an affirmative defense.

As the Supreme Court in Reynolds found, if an employer is aware of an industrial accident, they can be prevented from increasing the statute of limitations by failing to provide a claim form and notice of entitlement to employee compensation.

In other words, it is no accident that the statute of limitations is often shortened to SoL.

So imagine how delighted I was to see the Matani v IHSS case, a recent panel ruling that found not only the judge’s statute of limitations excluded the claimant’s claim, but the worker’s panel ‘Compensation Appeals Board agreed to re-examine.

Applicant Matani worked for IHSS even though that was solely the job of looking after his father. This included driving his father to and from his doctor’s appointments, among other things. In September 2014, the applicant was involved in a traffic accident but did not submit a claim for employee compensation. Instead, he waited until October 2017 to submit the files.

Labor Code 5405 (a) provides that an application must be made no later than one year from the date of the violation and the applicant has waited more than three years. The defendant denied the lawsuit on the grounds that it had not received any knowledge of an accident at work.

So if the accident happened in 2014 and an application wasn’t made until 2017, it seems to suggest that the statute of limitations excludes the claim, doesn’t it?

Well, the applicant put forward his own theory as to why the statute of limitations should be chargeable. At first he claimed that he faxed his supervisor stating that he “had an accident”. He could not remember whether he had mentioned his father’s transport at the time, and the documents summoned by the defendant did not contain such a facsimile.

The defendant planted witnesses to testify that office staff have been trained to review facsimiles for commercial claims and to promptly report them, and that no such report has been made in this case.

The applicant also alleged that he had a telephone conversation with his case handlers in October 2014 in which he informed them of the accident with him and his father. Defense witnesses, however, denied this during the interview and stated that no motor vehicle accident was mentioned during the telephone conversation.

The WCAB confirmed the order of the trial judge that the complainant made no claim against his claim. The panel justified this by stating that he actually knew his injury was industrial in nature, as he was transporting his father to a doctor’s appointment and receiving compensation from the IHSS for his time.

In order to trigger the lifting of the limitation period, the applicant would have had to provide an actual or constructive reference to an occupational accident. The standard “should have been known” does not apply to triggering the obligation to provide an application form.

With evidence that no application was made within one year of the date of the infringement, the defendant successfully lifted the limitation period. Since the complainant could not prove that the defendant had received an “actual or constructive” notification of the assertion of an industrial accident within one year of his entry, the defense was allowed to remain in place.

Some takeaways from the Matani case: Although the defendant bears the initial burden regarding the affirmative defense of the statute of limitations, the Matani panel would shift the burden on the applicant to demonstrate actual or constructive knowledge as soon as it is shown. In addition, the defendant was able to effectively negate such efforts to lift the statute of limitations by giving his own testimony of the defendant’s habit and regular procedures for identifying and responding to suspected occupational accidents.

So overall, not a bad result for the defense community.

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.