An Application Must Be Filed To Toll Limitations Statute

This newsletter usually does not comment upon Writ denied cases.  However, the case covered in this edition states some well founded concepts that are often overlooked.  Most practioneers believe the statute of limitations does not exist in the workers’ compensation setting. They could not be farther from the truth.

The applicant was employed with the defendant until 1991. On 10/3/96, the applicant filed a claim form for workers’ compensation benefits. The applicant was claiming a psychiatric injury during the course of his employment from 1969 until 1991.  The claim form was denied timely.  The applicant then filed an application for adjudication of claim on 11/25/97.

The matter was set for trial because The defendant contended the Application for Adjudication was barred by the statute of limitations (SOL). The workers’ compensation judge (WCJ) found that the applicant was credible and that the applicant was first aware that the claim was industrial on 6/4/96.  However, the WCJ did not find the case barred by the SOL. The defendant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board (WCAB) returned the case to the trial level for the WCJ to consider Labor Code sections 5401, 5500, and 5412. The WCJ issued a new decision finding the claim barred by the statute of limitations.

The applicant appealed, stating that the law in effect in 1991, not 1996, should govern the outcome. The WCJ in the report on reconsideration found that the date of injury under Labor Code section 5412 was 6/4/96. This is when the applicant first became aware of the injury. The WCJ stated that it is the filing of the Application which gives the WCAB jurisdiction, not the filing of the claim form.

The WCAB agreed with the WCJ. The WCAB stated that the commencement of the running of the SOL under Labor Code sections 5404 and 5406 depends on the date of injury.  For injuries occurring from 1990 through 1993, the claim form commences WCAB jurisdiction.  Before 1/1/95 an application is not necessary to commence proceedings.  After 1/1/95 the application is necessary.

“For injuries after 1993, it is again the filing of the application with the WCAB, not the filing of the claim form with the employer, that establishes WCAB jurisdiction and begins the proceedings to collect benefits. The filing of the claim form with the employer is still required, and acts to toll the running of the SOL, until the employer has denied the claim or until the claim has become presumptively compensable through the employer’s failure to deny. At that time, the limitations period again runs until compensation is paid or an Application is filed with the WCAB. (Labor Code section 5401©, 5404).”

Case: Banks V. W.C.A.B.

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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