The Statute Of Limitations May Be A Viable Defense

The statute of limitations (sol) in workers’ compensation proceedings has traditionally been a non issue. A recent opinion of the court of appeal may be of some help even though the opinion is not published in the official reports.

The applicant filed applications for adjudication of claim on two specific injuries on or about April 23,1991.

The first injury occurred on April 30, 1987. The first injury came more than one year after the injury but within the five year period of Labor Code section 5410. The second injury occurred in 1988 and there was a different insurance carrier for the same employer. The applicant also filed a cumulative trauma ending 1988 against the same employer. The insurance carrier was the same for the 1988 specific as well as the cumulative trauma. The day after the April 1987 injury, the applicant obtained medical treatment and a medical report. It is unclear which carrier paid these bills.

The medical evidence indicated that the first injury was partially responsible for the applicant’s condition. The workers’ compensation judge found the claim was barred by the one-year statute of limitations.

The appellate court indicated that the employer failed to inform the applicant of his workers’ compensation rights or deny the claim. The Workers’ Compensation Appeals Board had initially determined that the one-year statute was tolled by the Reynolds case.  However, the Appeals Board determined that the cumulative trauma was filed two years before the specific and since the applicant was represented by counsel this would start the running of the statute under the Kaiser Foundation cases.

The court indicated that the employer was required to give notice of denial of the claim. ‘This particular notice was required to end tolling of the statute of limitations because it appears that the employer voluntarily furnished all medical benefits… (A)lthough retention of counsel has been held to provide notice of workers’ compensation rights in general, no actual knowledge of the need to file can be assumed where, within 5 years of the date of injury, benefits continued to be paid, coverage is reasonably inferred, and no notice to the contrary is given.”

However, the court did quote the McDaniel case for the proposition “that once voluntary benefits are provided, the one-year statute of limitations is tolled and the employee has five years to file his claim under Labor Code section 5410. In addition, the court held that once the employee receives a denial notice from the employer the five-year statute of limitations ceases and the one-year statute of limitations within which to begin to commence proceedings begins.”

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

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

Newsletter Sign up

Workers Compensation Feed

Recent Newsletters