Statute of Limitations interpreted that only filing is necessary not service

The applicant was injured on August 25, 2008 and died from the injury on September 8, 2008. An application for adjudication of claim was filed on September 10, 2008. A petition for serious and willful misconduct (S&W) was filed with the Workers’ Compensation Appeals Board (WCAB) on August 20, 2009. It was never served on the employer.

Two and half months later applicant filed an amended S&W and served it on the employer. The employer claimed it was not timely since they were not served within one year with the original.

At trial the Workers’ Compensation Judge (WCJ) ruled that the filing was sufficient since the delay in serving was not sufficiently egregious. The employer filed a petition for reconsideration and the WCAB agreed with the WCJ.

The appellate court reviewed Labor Code section 5407 and section 4553. Labor Code section 5407 states the claim must be filed within one year. They also reviewed the cases of Cuadra and McGee to determine that the one year rule means filing of the application, not both, filing and service. They indicated that the lack of service did not mislead or prejudice the employer. Thus, the adequacy of notice must be measured by whether the employer was mislead or prejudiced.

Case: T and T Construction v WCAB (Hillman)

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

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