Statute of limitations: original filings and reopenings

• Pages: 1013-1078
• Author: David L. Pollak,Roger A. Tolman, Jr.,Monika R. Reyes

STATUTE

OF LIMITATIONS

18-1

CHAPTER 18

STATUTE OF LIMITATIONS:

Original Filings and Reopenings

I. INTRODUCTION

§18:01 Burden of Proof Is on Defendant

II. EMPLOYEE/EMPLOYER NOTICES; CLAIM FORMS

§18:10 Employee Must Serve Notice

§18:11 Employer Knowledge Equivalent to Notice; Insufficient Notice to Employer

§18:12 Lack of Prejudice Exception

§18:13 Lack of Employer Action Upon Receipt of Notice/Knowledge

III. TIME FOR FILING CLAIMS: MEDICAL AND DISABILITY INDEMNITY CLAIMS

§18:20 One Year of the Date of Injury OR the Last Furnishing of Benefits, Whichever Is Later

§18:21 What Constitutes “Filing”?

§18:22 Effect of Filing With Another Tribunal

§18:23 Statute Tolled by Providing Compensation/Medical Treatment

§18:24 Furnishing of Group Health Benefits May Toll Statute

§18:25 Statute Runs From Notice of Rejection of Claims; Exceptions for Estoppel

and Failure to Give Proper Notice Under Reynolds

§18:26 Furnishing of Benefits: No Tolling Where Employer Ignorant of Industrial Causation

§18:27 Statutory Tolling: Filing of Claim Form

§18:28 Statutory Tolling: While Matter Under Submission to I&A Officer

§18:29 Legal Effect of Tolling; Suspended Tolling Periods

§18:30 Amended Applications Against New Parties; New Applications by Codefendant; New Body Parts

IV. DEATH CLAIMS

§18:40 One Year From Injury or Last Furnishing of Benefits

§18:41 240-Week Proviso

§18:42 Effect of Ignorance of Employment Connection to Death

§18:43 Asbestosis Death

§18:44 Death From HIV-Related Disease

§18:45 Special Exception for Public Safety Workers

V. DATE OF INJURY

§18:50 Importance of Definition

§18:51 Specific Incident

§18:52 Cumulative Injury — Occupational Disease; Impact of §5412 DOI on Other Issues

§18:53 “Disability” Required to Determine Date of Injury in Cumulative Trauma Claims

§18:54 Knowledge Component of Cumulative Trauma Date of Injury

§18:55 Latent Injuries and Insidious Disease Processes (IDPs)

§18:56 Compensable Consequence Injury

STATUTE

OF LIMITATIONS

California Workers’ Compensation 18-2

VI. OTHER TIME LIMITS

§18:60 Serious & Willful Misconduct: One Year From Injury; Laches Defense

§18:61 Unlawful Discrimination (the LC §132a Claim): One Year From Discriminatory Act or Termination

§18:62 Penalties for Unreasonable Delay or Refusal

§18:63 Subsequent Injuries Benefits Trust Fund Benefits

§18:64 Lien Claims; Laches Defense

§18:65 One Year From Award: Contribution

§18:66 Non IBR Medical Dispute Petition

§18:67 CIGA Reimbursement/Contribution Claims Against Solvent Carriers;

Joinder Petitions Brought by CIGA

§18:68 Time Limits and CIGA Liability to Reimburse Medicare

VII. WAIVER AND ESTOPPEL

§18:80 Implied Waiver

§18:81 Estoppel; Reynolds Notice Requirements

§18:82 Non-Compliance With Benefit-Notice Rules

VIII. MINORITY OR INCOMPETENCE; DEATH; ABSENCE FROM STATE; IMPRISONMENT; MILITARY SERVICE

§18:90 Minority/Incompetence: Time Limits Tolled

§18:91 Appointment of Guardian Ad Litem

§18:92 Effect of Death of Defendant

§18:93 Effect of Defendant’s Absence From State

§18:94 Effect of Imprisonment Applies to Civil Litigation But Not to Workers’ Compensation

§18:95 Effect of Military Service

IX. CONTINUING JURISDICTION: NEW AND FURTHER DISABILITY

§18:100 Five-Year Limitation; May Apply Where No Application Is Filed As Long As

Medical Treatment Is Provided; New Disability Must Arise Within Five Years of DOI

§18:101 Liberal Pleading Requirements; New Body Parts Alleged After Filing N&F Petition

§18:102 What Constitutes the “Furnishing of Benefits” to Extend the One-Year Deadline to Five Years?

§18:103 What Constitutes “New and Further Disability”?

X. CONTINUING JURISDICTION: REOPEN FOR GOOD CAUSE

§18:110 Reopening Under LC §5803

§18:111 Jurisdictional Period; Exceptions to Five-Year Deadline

§18:112 Examples of “Good Cause”

§18:113 Compare Finding of Employment

§18:114 No Substitute for Reconsideration Petition

§18:115 Cumulative Evidence Insufficient

§18:116 Petition to Reduce Disability

§18:117 Right to Terminate PD Payments

§18:118 Setting Aside Dismissals With and Without Prejudice

XI. ACTION BEYOND THE FIVEYEAR PERIOD

§18:130 Reserving Jurisdiction — Permanent Disability

§18:131 Power to Award TD More Than Five Years From Date of Injury

§18:132 Evidence Considered Beyond the Five-Year Period

§18:133 Other Action Permitted Beyond the Five-Year Period

§18:134 Termination of Medical Awards

§18:135 Allowance of Credit

FORMS (ON DIGITAL ACCESS ONLY)

18.1 Petition to Reopen (DWC WCAB Form 42)

18.2 Petition for Appointment of Guardian Ad Litem and Trustee (DWC WCAB Form 8)

STATUTE

OF LIMITATIONS

18-3 Statute of Limitations: Original Filings and Reopenings §18:11

I. INTRODUCTION

§18:01 Burden of Proof Is on Defendant

An employee claiming industrial injury must prosecute his or her claim timely pursuant to LC §§5400-5412. Unlike the

absolute bar of civil litigation, the workers’ compensation defense of the statute of limitations is expressly declared to be an

armative defense which “operates to bar the remedy and not to extinguish the right of the employee.” [LC §5409.] The section

continues “… [s]uch defense may be waived. Failure to present such defense prior to the submission of the cause for decision is

a sucient waiver.” The burden of proof to establish the defense of the statute of limitations is upon the defendant. [LC §5705.]

The burden is dicult to meet, but is not impossible if employers, carriers and their adjusting agencies meet their

legal duties of advising allegedly injured employees and dependents of their rights under the law and particularly of the

defendant’s position with respect to such claims.

LC §5409 “neither ‘limits’ duties, nor makes them less than ‘mandatory.’ It merely requires diligent prosecution of known

claims thereby providing necessary nality and predictability in legal aairs and ensuring that claims will be resolved while

the evidence bearing on the issues is reasonably available and fresh.” [Kaiser Foundation Hospitals v. WCAB (Webb), 19

Cal.3d 329, 42 CCC 302, 306 (1977).]

[§§18:02-18:09 Reserved]

II. EMPLOYEE/EMPLOYER NOTICES; CLAIM FORMS

§18:10 Employee Must Serve Notice

The employee claim form was one of the unique features of the 1989 Reform Legislation. Prior to 1990, the initial

formal documentary initiation of a claim of industrial injury was the Application for Adjudication. From 1990 through

1993, the ling of the claim form with the employer operated as the original document establishing WCAB jurisdiction.

The WCAB, unfortunately, was unaware of these lings, and frequent disputes arose concerning delivery of the claim form

to the employer. Although the 1993 Reform Legislation renewed the ling of an Application for Adjudication as the initial

jurisdictional document, the claim form is still required and is the initial formal notice led with an employer. For example,

if within 90 days after the ling of the claim form, the employer fails to reject liability, a compensable injury is presumed.

Service of the claim form additionally tolls the statute of limitations. [For more on the employee claim form, see Chapter 16.]

After the form is provided to the employee, it is to be completed and led by the employee or dependents or by their

agent with the employer. A dated copy of the completed form is then provided by the employer or to the employer’s insurer

and to the employee, dependent or agent who led the claim form. The form contains a description of workers’ compensation

benets that satises the requirement that the employer give the employee or dependents “notice of potential eligibility for

benets under this division” along with the claim form. [LC §5401(a).]

An employee claiming an industrial injury, or a dependent claiming a fatal industrial injury, is required to serve the

employer a signed notice concerning the injury within 30 days after the injury. [LC §5400.] Unless such a notice is served,

“no claim to recovery compensation under this division shall be maintained…” [LC §5400.] However, this seemingly harsh

bar is subject to signicant exceptions.

§18:11 Employer Knowledge Equivalent to Notice; Insufficient Notice to Employer

Knowledge of an employee’s injury by the employer, “his or her managing agent, superintendent, foreman or other person

in authority,” is the equivalent of service of the written notice by the employee or dependent. [LC §5402.] Such knowledge

need not be actual knowledge but only “knowledge of the assertion of a claim of injury sucient to aord opportunity to

the employer to make an investigation of the facts.” Thus, constructive knowledge satises the knowledge requirement of

employee notice to the employer. This factual issue is a frequent source of litigation before the WCAB.

An example of sucient employer knowledge was explained in Rendleman v. IAC, 242 CA2d 32, 31 CCC 172 (1966).

Applicant, a prison guard, claimed an injury as the result of being attacked and having to ght a prisoner. The employer

raised the defense of lack of notice. However, the ght was witnessed by an assistant superintendent of the prison, and the

court held that the employer had sucient knowledge of the injury. [Rendleman v. IAC, 31 CCC at 174; see also City of

Anaheim v. WCAB (Hagan), 60 CCC 1017 (W/D-1995) (lling out two reports of employee injury by applicant and sub-

mission and signing of the reports by the employer were sucient to constitute employer knowledge of the injury claims).]

The Board also armed the WCJ’s nding that the applicant’s claim was not barred by the statute of limitations in Los

Angeles County IHSS, York Risk Services Group, Inc. v. WCAB (Bugay) 2017 Cal. Wrk. Comp. LEXIS 122 (BPD 2017).