California: Statute of Limitations in Workers’ Compensation

In the workers’ compensation world, there is a long held belief that the “tie goes to the injured worker.” This is especially true when it comes to the statutes of limitations. In fact, the 4th DCA in the case of Blanchard v. WCAB (1975) 53 Cal. App. 3d 590, 40 Cal Comp Cases 784 [40 CCC 784], wrote, “Limitations provisions in the workmen’s compensation law must be liberally construed in favor of the employee… and such enactments should not be interpreted in a manner which will result in a loss of compensation.”

(Publisher’s Note: Citations link to lexis.com; bracketed cites link to Lexis Advance.)

Nevertheless, when one of the following statutes does apply and the time deadline has been missed for some reason, there is often very little a judge can do, except apply the law to facts. The result? The injured worker may be barred from benefits for which he or she may otherwise have been entitled to receive.

Comp Benefits: Lab. Code, § 5405 [LC 5405] – 1 year from date of injury (DOI) or last benefit

Death Benefit: Lab. Code, § 5406 [LC 5406] – 1 year from date of death (DOD) or last benefit

New & Further Disability: Lab. Code, § 5410 [LC 5410] – 5 years from DOI

Change of Award: Lab. Code, § 5804 [LC 5804] – 5 years from DOI

However, several Noteworthy Panel Decisions (NPDs) have issued recently, whereby the WCAB has relied on prior case law to hold in favor of the injured worker, despite alleged violations of a statute of limitations. The findings in each case summarized below are directly in line with the philosophy set forth in the 4th DCA case of Blanchard, supra.

I. Tolling of Statute When Defendant Fails to Provide Notices - Hartman v. Town of Scotia Company, 2015 Cal. Wrk. Comp. P.D. LEXIS 348 [2015 Cal. Wrk. Comp. P.D. LEXIS 348]

Mr. Hartman was a reel operator for the Pacific Lumber Company when, on 10/14/1994, he claims to have industrially injured his neck and back. The parties stipulated that the defendant provided some medical treatment, but Mr. Hartman failed to timely file a claim form within one year of his injury pursuant to Lab. Code, § 5405(a).

Lab. Code, § 5405(a) & (c) state in part:

“The period within which proceedings may be commenced for the collection of the benefits…is one year from any of the following:

(a) The date of injury.

…

(c) The last date on which any benefits provided …”

Applicant’s attorney argued that an estoppel theory applied to these facts and that defendant had failed to provide Mr. Hartman with the appropriate workers’ compensation benefit notices. Therefore, the one-year statute of limitations pursuant to Lab. Code, § 5405(a) was tolled and defendant should not be allowed to use it as an affirmative defense.

At trial, defendant was unable to prove that they had provided the requisite workers’ compensation benefit notices to Mr. Hartman. However, defendant argued that Mr. Hartman was represented in two prior workers’ compensation cases and that he was constructively on notice that he needed to file a claim for benefits within one year after any alleged industrial injury.

The judge rejected defendant’s argument, citing the case of CIGA v. WCAB (Carls) (2008) 163 Cal. App. 4th 853, 73 Cal. Comp. Cases 771 [73 CCC 771]. The judge wrote, “After a showing is made that the defendant breached its duty to serve a Reynolds notice, the burden … shifts to defendant to show that any lack of notice did not prejudice the injured worker because he already had actual knowledge of his workers' compensation rights…”

Relying on the credible testimony of Mr. Hartman, the judge found that defendant failed to sustain their burden of proving that the injured worker had actual knowledge of his right to workers’ compensation benefits. Therefore, the injured worker was not barred by any statute of limitations from pursuing his claim.

II. Tolling of Statute When Defendant Fails to Provide Notices - Johnson v. Southwest Airlines, 2014 Cal. Wrk. Comp. P.D. LEXIS 236 [2014 Cal. Wrk. Comp. P.D. LEXIS 236]

Mr. Johnson worked as a ramp agent for Southwest Airlines when he suffered an admitted industrial injury to his upper and lower extremities on 8/17/2009. This case settled with a Stipulations and Request for Award on 4/23/2013.

Several months later, a trial was set on a different claim. This one dealt with Mr. Johnson’s cumulative trauma (CT) ending on 8/17/2009 to his bilateral upper and lower extremities as well as back and neck. Defendant argued that Mr. Johnson was barred from proceeding by the statute of limitations set forth in Lab. Code, § 5405, since he had failed to file a claim form within one year of the end date of the CT.

As in the Hartman case, the applicant’s attorney in this case also argued the estoppel theory. Defendant was on notice that Mr. Johnson had suffered a CT injury, since two medical reports had issued discussing this as follows:

•  In his report dated 2/2/2011, the Panel QME, Dr. Horner apportioned 25% of the left shoulder disability to Mr. Johnson’s CT ending 2009. In addition, Dr. Horner apportioned 30% of the bilateral knee disability to Mr. Johnson’s 2009 CT.

•  In his P&S report of 3/3/2011, Dr. Pelton, the injured worker’s surgeon, apportioned 50% of his impairment “to the cumulative trauma while working at Southwest Airlines between 1994 and 2009.”

Given the above information provided in the medical reports, applicant argued that, as of February and March of 2011, defendant was on notice that applicant had suffered a cumulative trauma ending in 2009. However, defendant failed to provide him with a claim form and the appropriate notices. Therefore, argued applicant, the statute of limitations should be tolled and he should be allowed to proceed with his CT claim.

The judge was not persuaded by applicant’s argument and held that since applicant failed to file a claim form timely within one year of this injury pursuant to Lab. Code, § 5405(a), he was barred from pursuing his CT claim ending in 2009.

The WCAB reversed the judge, but instead of relying on the estoppel theory, the WCAB relied on the case of Plotnick v. WCAB (1970) 1 Cal. 3d 622, 35 Cal. Comp. Cases 13 [35 CCC 13]. In both the Plotnick case and the instant case, the court noted that defendant had provided benefits to the injured worker in the form of medical treatment. Therefore, since the injured worker’s cumulative trauma claim was filed within one year of provision of “benefits” in the form of medical treatment, it was not barred in accordance with Lab. Code, § 5405(c), as set forth above.

III. Compensable Consequences Not Barred - Crossley v. Federal Express; Sedgwick, 2015 Cal. Wrk. Comp. P.D. LEXIS 342 [2015 Cal. Wrk. Comp. P.D. LEXIS 342]

Mr. Crossley suffered an admitted industrial injury to his “back, neck, right hip, lower extremities, internal, bladder and bowels on 12/27/00.” This case went to trial. On 11/4/2008, a Findings and Award issued in favor of the injured worker, with an award for further medical treatment on all of the injured body parts. On 11/6/2013, Mr. Crossley suffered a stroke, which he claims is a compensable consequence of his original 12/27/00 industrial injury.

Mr. Crossley sought medical treatment for the stroke, as part of the medical treatment award issued on 11/4/2008. Defendant denied the request for medical treatment, claiming that the “alleged stroke…did not take place within five years of the 12/27/00 date of injury” and therefore, “any claim for medical treatment benefits… would be barred by Labor Code sections 5804 and 5410…”

Lab. Code, § 5804 [LC 5804] provides in part: “No award of compensation shall be rescinded, altered, or amended after five years from the date of the injury…”

Lab. Code, § 5410 [LC 5410] provides in part: “Nothing in this chapter shall bar the right of any injured worker to institute proceedings for the collection of compensation within five years after the date of the injury upon the ground that the original injury has caused new and further disability…”

On 4/6/15, the sole issue of whether Lab. Code, § 5804 or Lab. Code, § 5410 barred the injured worker’s enforcement of his 11/4/2008 award of medical treatment went to trial.

The judge relied on the following three cases to support his decision that neither Lab. Code, § 5804 nor Lab. Code, § 5410 was applicable to bar enforcement of a lifetime medical treatment award, even if the treatment is for a compensable consequence of the initial injury, which occurs more than 5 years after the initial injury.

•  The WCAB in Allar v. Fullerton School District, 2010 Cal. Wrk. Comp. P.D. LEXIS 455 [2010 Cal. Wrk. Comp. P.D. LEXIS 455], wrote:

“It is well settled that, where there is an existing award of further medical treatment, the Appeals Board has jurisdiction to enforce that medical treatment award more than five years after the employee’s date of injury … (Emphasis in original)

Moreover, in enforcing a general award of further medical treatment, the Appeals Board may require an employer to provide treatment for a condition that is a compensable consequence of the industrial injury, even if that condition was not part of the original award and even if the employee first requests treatment for the condition more than five years after the date of the injury. . .” (Emphasis added.)

•  In San Juan Unified School District v. WCAB (1999) 64 Cal. Comp. Cases 1181 [64 CCC 1181] (writ den.) defendant was required to provide medical treatment for a compensable psychiatric consequence of the original industrial back injury that had occurred more than ten years earlier. (See also Otis Elevator Company v. WCAB (1984) 49 Cal. Comp. Cases 637 [49 CCC 637] (writ den.).)

The WCAB affirmed the judge’s decision on Reconsideration.

CONCLUSION: The best litigation practices dictate that attorneys have appropriate intake interview paradigms and tickler systems in place to ensure compliance with all statutes of limitations that exist in the system of workers’ compensation. However, when necessary, alternate arguments may be presented to the court to ensure that injured workers are provided with all benefits to which they are entitled.

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