Statute Of Limitations May Be Tolled By Notice Failure

This is the latest in a line of decisions interpreting the statute of limitations. This case gives a synopsis of current case law.

In September 1991 the applicant had an admitted specific injury to his elbow. He received workers compensation benefits after surgery.  After surgery he complained of neck pain and an evaluating physician found no ongoing elbow disability, but did find a cumulative trauma industrial in nature to the neck.

The claims adjuster sent the applicant a claim form in April 1993 and a follow-up letter in June 1993 to file a claim for the neck. The applicant claims he did not know that he needed to file a separate claim for the neck because of his sixth grade education and not receiving an attorney’s advice until November 1994. The applicant had been previously represented by counsel for a 1989 compensation claim. The workers compensation judge found the employer was estopped to raise the statute of limitations because the applicant was not advised of his rights under the Labor Code. The Appeals Board reversed saying the applicant knew or should of known of his rights and the employer should not be estopped.

Labor Code section 5405 states a claim must be filed within one year of the date of injury. Labor Code section 5412 defines date of injury, which includes the language mat the applicant knew or should have known that his injury was industrially caused with reasonable diligence. This language is important because it could be argued that the applicant should have known he had to file a claim within the prescribed time.

Labor Code section 138.4 defines the notice requirements the employer is to give the injured worker for the statute of limitations to be applicable. The appellate court cites the Reynolds case stating that the statute is tolled until the employee receives such notice.  However, at the time of the Reynolds decision the statute was different and now the statute is much stronger in terms of the notice requirements.

In this case the appellate court had to decide when the applicant knew or should have known of his industrial neck injury, April 1993 or November 1994. The appeals court agreed with the WCAB that there was facts to indicate that the applicant knew as of April 1993 but indicated that was not the end of the analysis. The appellate court indicated that the notice of the time limit to wasn’t provided to him and even though he filed two previous claims this was not enough to acquaint him with the time parameters because in April 1993 he was unrepresented. It is believed that is the key to this case. If applicant had been represented by an attorney at the time the outcome of this case might be different.

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

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

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