Workers’ Compensation
THE
Statute of Limitations
The following represents a summary and analysis of some of the most recent case decisions issued by the California
Supreme Court, California Court of Appeal, and the Workers’ Compensation Appeals Board, and Statutes which the
Editor believes is significant to the issue of the Statute of Limitations and the practice of Workers' Compensation
law generally. The summaries are only the Editor's interpretation, analysis, and legal opinion, and the reader is
encouraged to review the original case decision in its entirety.
Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision. WCAB
panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith
v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as
are en banc decisions, on all other Appeals Board panels and workers' compensation judges [see Gee v. Workers' Comp. Appeals Bd. (2002) 96
Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions
to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En
Banc Opinion)]. Panel Decisions which are designated as “Significant” by the WCAB, while not binding in workers compensation proceedings,
are intended to augment the body of binding appellate court and en banc decision and is limited to panel decisions involving (1) issue(s) of
general interest to the workers’ compensation community, especially a new or recurring issue about which there is little or no published case
law; and (2) upon agreement en banc of all commissioners on the significance and importance of the issues presented and resulting decisions.
(See Elliot v. WCAB (2010) 182 Cal.App. 4th 355, 361, fn. 3, 75 CCC 81; Larch v. WCAB (1999) 64 CCC 1098, 1099-1100 (writ denied).
I.
General Discussion – Statute of Limitations
The requirement that a claim form be filed within one years of the date of injury or be
barred is the primary Statute of Limitation to an industrial claim of injury. (Labor Code Sections
5405, 5404 & 5411) As a practical matter, two exceptions to the one-year Statute of Limitations
rule have evolved to make application of the Statute of Limitations an extremely rare occurrence:
Cumulative Trauma Injury and Notice Requirements/Estoppel.
First, the date of injury for a CUMULATIVE TRAUMA INJURY is the date
where there is the CONCURRENCE OF DISABILITY WITH KNOWLEDGE OR
REASON TO KNOW THAT THE DISABILITY WAS CAUSED BY AN
INJURIOUS INDUSTRIAL EXPOSURE. (Labor Code Section 5412)
Second, even where defendant can establish a year has elapsed since the date of
injury, the defendant may be ESTOPPED from asserting or found to have waived the
Statute of Limitations. (Labor Code Section 5409) Generally this occurs where the
defendant has failed to provided proper notices to the applicant, or had knowledge of the
injury so that harm or prejudice to defendant for untimely filing has not occurred. (See
also Labor Code Section 5403)
A second Statute of Limitation is the five years from the date of injury for filing a PETITION
TO REOPEN for new and further disability. For the most part the five-year statute to file for
new and further is absolute. (Labor Code Section 5410) The WCAB however has found timely
filed petitions through liberal interpretations of what constitutes a petition to reopen. Estoppel
may also be a consideration.
Industrial injury resulting in death requires that the claim be commenced within one year from
the date of injury but not later than 240 weeks from date of injury resulting in death. (Labor
Code Section 5406)
Miscellaneous Statute of Limitations and procedures for lien claimants are contained in Labor
Code Sections 4903.05, 4903.06, 4903.07.
I.
Cumulative Trauma Injuries
Earthgrains Co. v. WCAB (Hansen) (2008) 36 CWCR 168, 73 CCC 1000 (Not Certified for Publication)
Applicant sustained three injuries over a 14-year period of employment as a route salesman. All three were specific
and resulted in stipulated awards, one on the right knee and two for his back. Applicant retired sometime in 2002, due to low
back surgery. Applicant filed a new claim of cumulative trauma injury in 2005. Defendant denied injury, asserting the
Statute of Limitations.
At trial, the applicant testified that he had no understanding of cumulative trauma injury, or that his worsening
condition might have been in part caused by a CT injury until he met with his attorney in May of 2005. Defendant
introduced a report of the treater, dated 9/01, which suggested a CT injury.
The WCJ found for the applicant, awarding two years of retro-active TD and an additional 49% PD. Supporting his
opinion, the WCJ noting the first knowledge of a CT injury according to the applicant’s testimony, was when he met with his
attorney in May of 2005. The WCJ noted that the 9/01 treater’s report was only sent to the Defendant and no evidence was
presented that the applicant was provided or was ever aware of the treater opinion that suggested a CT injury. The Court held
that a CT injury required the concurrence of injurious industrial exposure, disability with knowledge or reason to know that
the injurious exposure was causative of the disability. Here no evidence existed placing all elements required for a CT injury,
until the applicant met with his attorney in May of 2005. The Court also stated that where the defendant has evidence of CT
injury, the defendant has the duty to provide a claim form. Therefore, the claim was not barred by the statute of limitations.
Federal Express v. WCAB (Uhlik) (2006, 5th Appellate District) 71 CCC 1703.
Applicant worked as a courier for Federal Express from 7/27/97 through 12/26/01, at which time the applicant left
due to severe back pain. The applicant never returned to work. The applicant received SDI augmented with long-term and
short-term disability until October of 2004. At that time she was notified that the long-term disability was ending at which
time she filed a CT claim of industrial injury. Applicant first knew of the cause of her back pain on 6/1/04 from a treating
physician’s report. Defendant denied the claim asserting the Statute of Limitations. The WCJ however found the claim not
barred by the statute of limitations and was upheld by the WCAB. Defendant sought review by the Court of Appeal.
The Court first noted the basic rules under Labor Code Sections 5405 (one year from date of injury, or last payment
of indemnity or providing of medical treatment) and 5412 (the date of injury for a CT claim is the date upon which the
employee first suffered disability and either knew, or has reason to know that the disability was caused by an injurious
industrial exposure).
Next, the Court stated that the defendant has the burden of proof on the statute of limitation and this burden is not
met merely by “showing that the employee knew he had symptoms”. In this case, the only evidence was that the applicant
was aware of her symptoms and not that she knew that the symptoms were caused by her work activities. The WCJ noted
that if, as the defendant argues, the symptoms were ‘obviously work related’ then the employer should have provided a claim
form and appropriate notice. Further, assuming the symptoms were obvious to the employer, the statute is tolled as the
employer failed to provide a claim form and notice of potential eligibility for benefits.
Cooke v. WCAB (2003, 1st Appellate Court)
68 CCC 1703 (Writ Denied)
“. . .Here, defendant maintained that applicant learned of his rights
through the advice of his attorney, who knew after attending applicant’s
deposition about all of applicant’s specific injuries and the dates on which
they occurred. According to the WCJ, applicant’s attorney, who filed
applicant’s CT claim, was a well-known applicant’s attorney who would have
been fully competent to advise applicant regarding his rights and would have
advised applicant regarding which claim to file. The WCJ found that, as an
agent for applicant, the attorney’s knowledge should be imputed to applicant.
. . Accordingly. . .the Statute of Limitations barred applicant’s specific injury
claims [as untimely filed]..”
Applicant was a test driver for Kawasaki
Motors Corporation. During this employment he
Cooke v. WCAB 68 CCC at pg. 1705.
sustained multiple specific injuries and a cumulative
trauma injury during the period beginning 1981 through 1986. Applicant was represented by counsel at deposition held on
8/6/96. At deposition applicant testified to each of the specific injuries. Further, he learned through his attorney in April of
1998 that defendant was asserting the statute of limitation as to each of the specific claims of injury. Applicant filed a single
CT claim on 3/29/96, and after retaining counsel filed the specific claims on 2/12/00. Defendant at no time provided notice
to applicant that the specific claims might be barred by LC 5405 until after applicant’s deposition. At trial the WCJ found for
the defendant holding that each of the specific claims were barred by LC 5405 as untimely filed.
On reconsideration applicant argued that (1) the timely filing of the CT claim tolled the statute of limitations for the
specific injury claims subsumed within the CT
See also, Earley et al. v. WCAB et al. (2003) 68 CCC 1707 in which an
claim and therefore the late filed specific claims
adjudicated industrial heart condition lead to employee’s death some 16 years
related back to the timely filed CT claim, and (2)
later. His sons filed a death claim testifying that they had no knowledge that
the mandate of LC 3208, and the WCAB’s policy
their father’s heart condition was industrial until after his death, and
therefore the date of their claim arose on the date of their knowledge and was
of “substance over form when evaluating the
not barred by the 240 requirement of LC 5406. Good try but no cigar. WCAB
effects of pleadings” does not allow this claim to
upheld WCJ’s ruling that no separate date of injury was applicable because
be barred by LC 5405.
the date of injury was determined inter vivos, and date of sons’ knowledge
The WCAB first noted that Reynolds v.
would not result in a new date of injury.
WCAB (1974) 39 CCC 768 tolls the running of
LC 5405 statute of limitation until the worker acquires knowledge of those rights. Here the Court determined those
rights were known to applicant following the deposition, either actually or constructively through counsel. The
Court also opined that the specifics did not arise out of the same transaction or occurrence but rather arose out of
seven specific dates of injury, each of which differed from the ending date of applicant’s CT claim.
Recon denied. Writ denied.
I.
Estoppel to Statute of Limitations
Delta Dental Plan of California v. WCAB (Funk) (2014) 79 CCC 954, 2014 Cal.Wrk.Comp.
LEXIS 95.
Editor’s Comments: The decision in Delta Dental Plan was limited to the
issue of whether the claim was barred by the statute of limitations under LC
sections 5400/5401. Once the duty to provide a claim form arises and the
employer fails to provide the claim form, the employer is estopped to assert the
statute of limitations as a bar to the claim. This decision did not address the
companion issue of whether the presumption of compensability under LC 5402
applies where defendant failed to accept/reject/delay within 90 days of
knowledge of an industrial injury. See, Muna v. WCAB (2007) 35 CWCR 263,
72 CCC 1219; City of Merced v. WCAB (Fenton) (2005 5th Appellate District)
2005 Cal. App. Unpub. LEXIS 4671, 33 CWCR 127; Janke v, WCAB (1991) 19
CWCR 310 (Panel Decision); But see, limiting, Honeywell v. WCAB (12/20/02)
(Court of Appeal, 2nd Appellate District) 67 CCC 1557.
A companion issue is application of the Statue of Limitations to CT injuries
pursuant to LC sections 5405 and 5412 one year from date of injury with the
date of injury being the concurrence of disability with knowledge or reason to
know that the disability was caused by an injurious industrial exposure, see
Technicolor, Zurich American Insurance v. WCAB (Minichiello-Smith) 79 CCC
1581, 2014 Cal.Wrk.Comp. LEXIS 167. See also, Salas v IDS USA West 2014
Cal.Wrk.Comp. PD LEXIS 364 where the Statute of Limitation for cumulative
trauma injuries was not date undocumented worker was terminated for being
undocumented but rather several weeks later when PTP first reported need for
job modification due to industrial CT injury. See also, Thompson v. Huhtamaki
Americas, Inc. 80 CCC 207 where claim for death from asbestos was barred
where injury known inter vivos and application for death claim not filed by
widow within one year of death.
Applicant claimed injury for
the period ending 11/9/01which she
failed to file a claim form until 6/11/03.
Defendant denied the injury as barred
by LC 5400 which defendant argued
requires an injured employee to give
notice to the employer within 30 days
after the occurrence of the injury. At
trial the applicant’s supervisor testified
that she had had a conversation with a
co-manager in which she understood
that the co-supervisor/manager
“thought” the applicant “might have
suffered an industrial injury”. The issue
was whether this was sufficient
information to trigger defendant’s duty
to provide applicant with a claim form
and if not doing so acted to toll the
statute of limitations. Other relevant
evidence included that the applicant in her position as a manager knew of her workers’ compensation rights, and that
information of the possibility of an industrial injury from a co-manager was insufficient to trigger the duty to
provide a claim form.
The WCJ held for the applicant, determining that the employer’s duty to provide the claim form arises upon
receipt from any source that the applicant potentially sustained an industrial injury. There is no requirement under
LC5401 that the information of injury come directly from the applicant. In this case the employer had sufficient
information to trigger the duty for the employer to provide the claim form. Failure to do so prevents the employer
from asserting the bar under LC 5400/5401.
CIGA v. WCAB (Carls) (2008) 163 Cal.App.4th 853, 36 CWCR 136, 73 CCC 771
Applicant sustained an injury in 1996. He sustained a second injury in 1997, which he reported to his
employer. His employer took no action; including failing to advise the applicant of his potential rights, and even
dissuaded the applicant from pursuing it. The applicant became represented in 1999, but only with respect to the
filed 1996 injury. He did, however, inform his doctor of the 1997 incident. In 2000, the carrier became insolvent
and CIGA took over administration of the claim. In 2002, the 1996 case was ordered off calendar to allow the
applicant’s attorney to file on the 1997 incident. Counsel for Applicant failed to file the claim until 3/04. Defendant
denied the 1997 injury, asserting the statute of limitations.
At trial, the WCJ found for the applicant awarding 43% PD award on the 1997 injury. The WCJ in not
applying the Statute of Limitations to bar the claim noted that the defendant was put on notice when the injury first
occurred and in the AME reports in 2001 and 2002, and yet failed to provide notice to the applicant. The court also
noted that CIGA did not admit coverage for the 1997 injury until 5/03 and CIGA’s failure to admit coverage delayed
the filing. Therefore, the WCJ held CIGA was estopped from raising the Statute of Limitations as an affirmative
defense. The WCJ was upheld on reconsideration.
In upholding the WCJ, the Court of Appeal relied on the reasoning of the trial court, but went on to analyze
the issue of whether the claim was barred by the statute of limitations as turning on whether the applicant had
“actual knowledge” that the 1997 injury was potentially a compensable claim. The Court noted that although the
applicant’s attorney knew the 1997 injury was potentially compensable, his knowledge is not imputed to the
applicant; no evidence existed that the applicant was present at the 2002 hearing, or was informed of the basis for
the continuance; no evidence that the applicant was aware of the 1999 medical report, which talked about the 1997
injury as occurring within the course of applicant’s employment. Under these circumstances, CIGA is estopped
from asserting the statute of limitations.
II.
Statute of Limitations for S&W Claims
T&T Construction v. WCAB (Hillman) (2012, 3rd Appellate District) 77 CCC 501(Not Certified
for Publication)
Applicant sustained injury on 8/25/08 which resulted in his death. On 8/20/09 the applicant’s widow’s
attorney filed, but did not serve a petition for serious and willful misconduct. On 11/6/09 an amended S&W
petition was filed and served on the employer. The employer asserted the one year statute of limitations as a bar to
the petition. This issue was submitted to the
Editor’s Comments: This decision should not be construed as requiring filing
and service of the petition for S&W within one year from the date of injury.
WCJ who held for the applicant. On
However, the prudent practitioner will both file and serve within one year out of
reconsideration the WCAB upheld the WCJ
fear that the employer will argue that the delay in service has resulted in being
arguing that the delay did not seem sufficiently
misled or prejudiced justifying application of the one-year statute of limitation
egregious to warrant barring the claim.
under LC 5407.
On review, the Court of Appeal
discussed that LC 5407 specifically requires only that the proceedings be “commenced” within 12 months from the
date of injury. Citing two separate cases the Court noted that “commenced” connotes only filing, not filing and
serving. The Court also noted that although LC 5400 provides that “no claim to recover compensation shall be
maintained unless. . .there is service upon the employer” , this section goes on to provide that “any defect or
inaccuracy in a notice is not a bar to recovery. . .if it is found . . .that the employer was not in fact misled or
prejudiced by such a failure.” In this matter the employer neither asserted being misled, or prejudiced, and further
did not contest the WCJ’s conclusion that the employer was not misled or prejudiced. Review denied.
III.
Petition To Re-Open
Granite Construction Company v. WCAB (McReynolds) (2003, 3rd Appellate District) 68 CCC
1548, 31 CWCR 293.
Applicant sustained injury during his employment with Granite Construction on 08/29/99. Applicant
sustained a second injury on 9/12/99 during a subsequent period of employment with DDS. In 1993 applicant
received a PD and medical treatment award. On August 23 1993, and within five years of the date of injury the
applicant wrote a letter to the WCAB which complained of Liberty Mutual’s refusal to pay for medical treatment.
Enclosed with the letter was a copy of a report from applicant’s treating physician. The letter only spoke of Liberty
Mutual’s refusal to pay medical treatment, and did not mention a request to increase PD nor to reopen. On 5/9/96,
more than five years from the date of injury, Applicant filed a Petition to Reopen for new and further disability.
The WCJ held that Applicant’s 1993 letter was a request to reopen and issued an award increasing the
award. The WCAB denied reconsideration.
The Court of Appeal first discussed the Bland v. WCAB decision, in which the Supreme Court ruled that the
awkwardness of the allegations in the petition to reopen should not defeat the request to reopen. Further, the
Supreme Court has said that the lack of legal advice and knowledge of procedural niceties should not prevent
recovery. The Court also noted that in Blanchard v. WCAB that the liberality of the pleadings authorized the injured
worker to file medical reports beyond the five years provided the request to reopen was made within the five-year
period. The Court even noted the very liberal decision of Beaida v. WCAB which allowed a letter to the Board by a
treating physician which merely advised that the “prior award did not fairly cover the extent of the employee’s
disability” and to “advise in rectifying the situation” was held a sufficient request to reopen.
The Court in reversing dispensed with all three cases noting that in each, a request for increased benefits
had been unmistakenly made. In the present matter the Court highlighted the absence of any allegation of “new
and further disability”. The Court in citing Nickelsberg v. WCAB noted that liberal construction should not be used
to defeat the overall statutory framework and fundamental rules of statutory construction. The Court also seemed
persuaded by the applicant’s complete lack of action to re-open.