Resurrection of a Death Claim

• Publication year: 2019
• Author: William M. Carero Oxnard

Resurrection of a Death Claim

The Hon. William M. Carero Oxnard, California

It's May 5, 2017. Your client's daughter arrives to tell you that her father (the decedent) had died two weeks earlier, on April 24th. His workers' compensation case you filed on June 12, 2012, never produced a settlement or an award. The worker's daughter and three of his grandchildren depended on the worker for financial support.

The decedent's claim of cumulative trauma (CT) ending on May 7, 2012, involved multiple internal, psychiatric, and orthopedic injuries from repetitive stress. Before suggesting to his daughter that the death might have been due to work, you divide 1,826 days by 7 to realize that 259 weeks have elapsed from the end of the cumulative trauma to the date of death. That might be a problem for the statute of limitations for a death claim.

Will the daughter be able to seek only accrued indemnity benefits in the inter vivos case? Or is there any other way, in order to pursue the death claim, to count the days? Hopefully, you think it's worth a try since there is a lot at stake. To figure out the daughter's rights, you need to know the nuances of the law on how the date of injury could be determined for purposes of the statute of limitations in death claims. This article addresses that topic.

Background

In general, Labor Code section 5406(b) bars death claims where the date of death is more than 240 weeks from the date of injury. Labor Code section 5412 states that for a CT date of injury, the date of injury is the intersection of disability from the injury and knowledge that the injury is from work.

Parameters for the Limitations Period

In Ruiz v. IAC (1955) 45 Cal.2d 409 the California Supreme Court required that the claim for death benefits must be made both within one year of the date of death and within 240 weeks of the date of injury.

The Supreme Court again addressed Labor Code section 5406 in Massey v. WCAB (1993) 5 Cal.4th 674. There they similarly applied both the one year and 240-week limitations, concluding that these time limits were qualifying conditions for any death claim.

So far, this analysis seems straightforward, but what is considered the date of injury for purposes of triggering the 240 weeks?

Decedent or Dependent Knowledge for a CT Date of Injury?

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