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Thread Title: Statute limitations?
Created On Thursday February 26, 2009 8:32 PM


laesquire
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Thursday February 26, 2009 8:32 PM

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SCENARIO:

1. About 7 years ago Applicant injures Spine at work. It is the start of a CT not specific injury. Applicant gets treatment through private health insurance.

2. Does NOT report work injury.

3. At the Depo Applicant admits he had work injury, got treatment and had disability.

4. Applicant keeps working for the employer who is Permissably Self Insured.

5. The Defense asserts a statute of limitations defense. Applicant says continued CT eliminates statute defense.


QUESTION:

1. Does the Defense have a valid statute of limitations defense?


Any case citations appreciated.


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 Any posting herein is NOT legal advice. It also does NOT create and attorney-client- relationship.

Edited: Friday February 27, 2009 at 3:32 PM by laesquire

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bassman314
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Friday February 27, 2009 3:46 PM

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It depends on when the DOI is established.

5412 indicates the DOI is when there is both knowledge and disability. If he knew he had a work related injury, but did not suffer disability, the DOI hasn't ocurred, and therefore the SOL has not tolled.

You do mention that he had disability. If the first date of disability is after he had knowledge, then he would have a year from that date to file a claim. If he did not have knowledge that his injury was industrial until some point after that date, he would have a year from that date to file.

Rarely, have I seen a case where the SOL was upheld, except where the Injured Worker was informed by his doctor that it was work-related.

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in dubio
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Friday February 27, 2009 4:47 PM

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As far as I know, SOL as a defense may work if AA does not file an application of adjudication of claim within a year after the denial of the claim.

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steelmanlaw
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Friday February 27, 2009 5:36 PM

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See City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal.App.3d 467. CAVEAT: THERE IS A NEW CITY OF FRESNO WHICH HAS NOTHING TO DO WITH THIS ISSUE

The analysis in City of Fresno sets forth the elements required to run the S/L for a CT injury only. It describes what level of knowledge is required of the IW before the S/L starts to run. Assume a CT, no report to employer, and the passage of time. Under City of Fresno, an IW has knowledge of his/her CT ONLY when advised of the industrial nature of the condition by a medical doctor secondary to an exam. At that point, a DOI as defined under section 5412 occurs - the two elements to establish a CT DOI being: concurrence of disability, and knowledge that it is work-related. Once the IW has knowledge as described in City of Fresno, he has a year to comply with the statute, and either file an application or report the injury to his employer. Either of those events will toll the statute, but without either of them, the one year S/L runs after knowlege. I found out about City of Fresno the hard way, after oral arguments at the 2nd Dist. Ct. or Appeals in June 2000. Until then, the Board had barred the IW's claim as violative of the S/L.

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