STATUTE OF LIMITATIONS - Labor Code §5805–The statute of limitations against a special employer is tolled during the period that compensation benefits are paid to the injured employee by the general employer. (See State Comp. Ins. Fund v. Ind Acc.Com. (Rodgers) (1945) 26 Cal.2d 278, State Comp. Ins. Fund v. Ind.Acc.Com. (Dean) (1946) 73 CalApp.2d 248.) [Writ Denied]
STATUTE OF LIMITATIONS - Date of cumulative injury–Labor Code §5412–The date of injury in cases of occupational disease or cumulative injuries is the date upon which the employee first suffered disability and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment. Whether an employee knew or should have known the disability was industrially related is generally a question of fact. (See Nielsen v. Workers' Comp. Appeals Bd. (1985) 164 Cal.App.3d 918.) ___Cal.App.4th___
STATUTE OF LIMITATIONS - Date of cumulative injury–Labor Code §5412–It is the employer's burden to prove applicant's knowledge. City of Santa Ana v. Workers' Compensation Appeals Board (Donald K. Smith) 10 WCAB Rptr. 10,139 ___Cal.App.4th___
STATUTE OF LIMITATIONS - Tolling of the statute of limitations–Labor Code §5901–The running of the statute of limitations may be tolled when the employer fails to provide the required claim form and notice after the employer has knowledge of the employee's injury. (See Reynolds v. Workers' Comp. Appeals Bd.(1974) 12 Cal.3d 726.) Zenith Insurance Company v. Workers' Compensation Appeals Board (Gilberto Becerra) 10 WCAB Rptr. 10,101 [Writ Denied]
STATUTE OF LIMITATIONS - Labor Code §5405–Did the Appeals Board err when it found applicant's 1997 injury claim was not barred by the statute of limitations when his Application for Adjudication of Claim was filed in 2004 because the employer failed to provide notice of right to compensation? [Writ Granted]
STATUTE OF LIMITATIONS - Labor Code §5405–Did the Appeals Board err when it concluded that CIGA was estopped to assert the statute of limitation defense on the basis that CIGA did not admit coverage by the liquidated carrier? California Insurance Guarantee Association v. Workers' Compensation Appeals Board (David Carls) 10 WCAB Rptr. 10,057[Writ Granted]
STATUTE OF LIMITATIONS - Labor Code §5405 provides that an applicant has one year from the date of injury to file an Application for Adjudication of Claim. The date of injury in cumulative trauma cases is defined by Labor Code §5412 as the date upon which either the applicant first suffered disability as a result of the injury or in the exercise of reasonable diligence should have known that the disability was caused by the employment. Molly Price v. Workers' Compensation Appeals Board, Hyundai Electronics 9 WCAB Rptr. 10,367[Writ Denied]
STATUTE OF LIMITATIONS - Tolling of the statute of limitations-Labor Code -5401-The running of the statute of limitations may be tolled when the employer fails to provide the required claim form and notice. (See Reynolds v. Workers' Comp. Appeals Bd. (1974) 12 Cal.3d 726.) City of Whittier v. Workers' Compensation Appeals Board (William Lamping) 9 WCAB Rptr. 10,366 [Writ Denied]
STATUTE OF LIMITATIONS - Tolling of the statute of limitations"Once an employer is advised of a possible workers' compensation claim, the employer may be estopped to assert a statute-of-limitations defense if the employer has not given the employee the required claim form and notices. (See Reynolds v. Workers' Comp. Appeals Bd. 91974) 12 Cal.3d 726.) Gregory B. Bragg & Associates, Administrating for San Luis Obispo United School District v. Workers' Compensation Appeals Board (Cheryl Retzlaff) 9 WCAB Rptr. 10,350 [Writ Denied]
STATUTE OF LIMITATIONS - Discrimination claim–Labor Code §139a–Proceedings for increased compensation or for reinstatement and reimbursement for lost wages and work benefits pursuant to Labor Code §132a must be instituted by filing an appropriate petition with the Appeals Board and must be commenced not more than one year from the discriminatory act or date of termination of the employee. Edith Tupas v. Workers' Compensation Appeals Board, Southern California Permanente Medical Group 9 WAB Rptr. 10,334 [Writ Denied]
STATUTE OF LIMITATIONS - Tolling of the statute of limitations–Employer estoppel to assert the statute of limitations requires a complete lack of knowledge on the part of the injured worker of his workers' compensation rights or an active misrepresentation by the employer concerning entitlement to workers' compensation benefits. (See Reynolds v. Workers' Comp. Appeals Bd. (1974) 12 Cal.3d 725.)[In this case, the injured worker was informed of his rights to temporary disability, permanent disability, medical care and vocational rehabilitation, but did not act to preserve that right or even demand provision of medical care for 19 years after his injury.] Jeffrey H. Fredericks v. Workers' Compensation Appeals Board, City of Atascadero 9 WCAB Rptr.10,269[Writ Denied]
STATUTE OF LIMITATIONS - Does the use of a "Doe" or fictitious defendant in an Application for Adjudication of Claim confer jurisdiction on the Appeals Board over an employer whose identity is known when the Application is filed, thereby tolling the running of the statute of limitations? City of South Gate v. Workers' Compensation Appeals Board (Hal Nielson) 9 WCAB Rptr. 10,152 [Writ Granted]
STATUTE OF LIMITATIONS - Relation back doctrine–An amendment of an application adding a cumulative injury claim to a specific injury application involving the same injury and the same employer is permissible because it does not constitute a new cause of action, The filing date of the amendment relates back to the date of the original filing of the application for the specific injury and was not barred by the statute of limitations. (See Bassett-MacGregor v. Workers' Comp. Appeals Bd. (1988) 205 Cal.App.3rd 1102.) Fisher Farms v. Workers' Compensation Appeals Board (Molly Paniagua) 9 WCAB Rptr. 10,161 [Writ Denied]
STATUTE OF LIMITATIONS - Date of cumulative injury–Labor Code §5412–The date of a cumulative injury for the purpose of the statute of limitations is the date when the worker first sustained and the date the worker either knew or should have known that it was industrial. Sharon Fondern v. Workers' Compensation Appeals Board, Lockheed Martin 9 WCAB Rptr. 10,136 [Writ Denied]
STATUTE OF LIMITATIONS - Tolling of the statute of limitations–Labor Code §5404-55412–Reliance on the statute of limitations being tolled because of failure to give notice of workers' compensation rights is based on equitable estoppel. The employee must be prejudiced by some act or omission of the employer. (See Hurwitz v. Workers' Comp. Appeals Bd. (1979) 97 Cal.App.3d 854.) [In this case, the facts demonstrated that the employee would not have acted differently if the required notices were given.] Jerry Guzzetta v. Workers' Compensation Appeals Board, City of Bell 9 WCAB Rptr. 10,114 [Writ Denied]
STATUTE OF LIMITATIONS - Labor Code §5405–In construing the limitations provisions of Labor Code §5405, the controlling principle is that for purposes of the running of a statute of limitations on a workers' compensation claim, it is almost universally the rule that the injury is not deemed to occur until ascertainable disability results. (See Marsh v. Industrial Acc. Com. (1933) 217 Cal. 338.) Save Mart Supermarkets v. Workers' Compensation Appeals Board (Chad Hixson)] 9 WCAB Rptr. 10,100 [Writ Denied]
STATUTE OF LIMITATIONS - If a employer does not properly notify an injured worker of his potential right to workers' compensation benefits, the employer is barred from raising the statute of limitation as a defense. (See Reynolds v. Workers' Comp. Appeals Bd. (1974) 12 Cal.3d 726.) City of Lompoc v. Workers' Compensation Appeals Board (Mark Antonio Medina) 9 WCAB Rptr. 10,085 [Writ Denied]
STATUTE OF LIMITATIONS - Date of injury–For statute of limitations purposes, the date of injury requires concurrence of two elements: (1) compensable disability and (2) knowledge of industrial causation. (See Bassett-McGregor v. Workers' Comp. Appeals Bd. (1988) 205 Cal.App.3d 1102.) ___Cal.App.4th___
STATUTE OF LIMITATIONS - Knowledge of industrial causation–Whether an employee knew or should have known this disability was industrially caused is a question of fact. (See City of Fresno v. Workers' Comp. Appeals Bd. (1985) 163 Cal.App.3d 467.) County of Mariposa v. Workers' Compensation Appeals Board (Bryce Johnson) 8 WCAB Rptr. 10,349 ___Cal.App.4th___
STATUTE OF LIMITATIONS - Pursuant to Labor Code §138.4, an employer is obligated to provide notice of potential eligibility of benefits to an employee in situations where the employer has knowledge of the employee's injury. If the employer fails to provide the applicant with notice of these potential rights, the employer may not raise the statute of limitations defense to defeat the claim. (See Reynolds v. Workers' Comp. Appeals Bd. (1974) 12 Cal.3d 726.) [In this case, the WCJ found that the team trainers provided treatment before and after practices and games over the applicant's five years with the Houston Rockets and the knowledge of the team trainers about applicant's injuries was sufficient to estop the employer from raising the statute of limitations defense.] Houston Rockets v. Workers' Compensation Appeals Board (Ed Ratleff) 8 WCAB Rptr. 10,336 [Writ Denied]
STATUTE OF LIMITATIONS-While an injured worker is receiving benefits under either the federal or state systems, the statute of limitations is tolled as to the other. See Ingalls Shipbuilding Division, Litton Systems v. Hollinhead (5th Cir. 1978) 571 F.2d 272.) California Insurance Guarantee Association v. Workers' Compensation Appeals Board, Wickland Oil Company (Arlo Badenhop) 8 WCAB Rptr. 10,244 [Writ Denied]
STATUTE OF LIMITATIONS– Labor Code §5405– When the employer fails to provide an injured employee with notice of potential eligibility for benefits, the statute of limitations on the employee's claim for compensation is tolled until such notification is given to the employee. (See Reynolds v. Workmen's Comp. Appeals Bd. (1972) 12 Cal.3d 725; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Martin) (1953) 39 Cal.3d 57.) Thomas Davenport v. Workers' Compensation Appeals Board, State Compensation Insurance Fund 7 WCAB Rptr. 10,341 ___Cal.App.4th___
STATUTE OF LIMITATIONS– Date of injury of a cumulative trauma injury– Labor Code §5401– The date of injury for statute-of-limitation purposes for a cumulative injury requires the concurrence of disability and knowledge that the disabling condition was industrially related. [In this case, the applicant went through chemotherapy in 1995 and continued working throughout the course of treatment and was not found by his treating physician to be disabled from Hodgkin's disease until 2003.] City of Los Angeles v. Workers' Compensation Appeals Board (Michael Darling) 7 WCAB Rptr. 10,262 [Writ Denied]
STATUTE OF LIMITATIONS– Labor Code §5405– Under the facts of this case where the claim was filed six years from the date of injury, does the failure of the employer to provide a claim form toll the running of the statute of limitations? Thomas Davenport v. Workers' Compensation Appeals Board, State Compensation Insurance Fund 7 WCAB Rptr. 10,201 [Writ Granted]
STATUTE OF LIMITATIONS– Occupational or cumulative trauma– Labor Code §5412– An employee may be held to be aware that his or her disability was caused by the employment when so advised by a physician. Generally, until he receives such medical advice, he is not chargeable with knowledge of his condition or its relation to his work. (See City of Fresno v. Workers' Comp. Appeals Bd. (1985) 163 Cal.App.3d 467.) American Tissue Corporation v. Workers' Compensation Appeals Board (David Sarabia) 7 WCAB Rptr. 10,179 Court of Appeal ___Cal.App.4th___
WCAB PROCEDURE– Estoppel for raising the statute of limitations–An employer and its insurer are estopped to plead the statute of limitations when the actions or misrepresentations of either induce the employee to refrain from filing a claim until after the statute of limitations has run. (See Benner v. Industrial Accident Com. (1945) 26 Cal.2s 346.) To prove estoppel, the employee must show reliance on some act, omission or statement of the employer or insurer. (See American Can Co. v. Industrial Accident Com. (Wright) (1962) 204 Cal.App.2d 276.) Production Framing Systems v. Workers' Compensation Appeals Board (Robert Dove) 7 WCAB Rptr. 10,156
STATUTE OF LIMITATIONS– Did the Appeals Board properly determine that the applicant's claim for cumulative back injuries was barred by the statute of limitations? American Tissue Corporation v. Workers' Compensation Appeals Board (David Sarabia) 7 WCAB Rptr. 10,091
STATUTE OF LIMITATIONS– Labor Code §5410–The statute of limitations is tolled if the employer's failure to provide a claims form results in prejudice to the applicant. (See Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Martin) (1985) 39 Cal.3d 57.) An employer's duty to advise an employee of his or her possible workers' compensation rights arises only when the employer has knowledge of an injury that causes disability or need for medical treatment. (See Gordon v. Workers' Comp. Appeals Bd. (2003) 5 WCAB Rptr. 10,147 [writ denied].) [In this case, it was undisputed that applicant did not require medical treatment or lost time from work prior to being terminated for reasons unrelated to the alleged injury.] Tonya Morris v. Workers' Compensation Appeals Board, West Capital Financial Services 6 WCAB Rptr. 10,239
STATUTE OF LIMITATIONS– Labor Code §5412–The date of a cumulative injury is that date upon which the employee first suffered disability therefrom, and either knew, or in the exercise of reasonable diligence, should have known, that such disability was caused by his present or prior employment. The injured worker is not chargeable with knowledge that his disability is job-related without medical confirmation, unless the nature of the disability and the workers' qualifications are such that he should have recognized the relationship. (See City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal.App.3d 467.) Con J. Franke v. Workers' Compensation Appeals Board (Bill Alexander) 6 WCAB Rptr. 10,222
STATUTE OF LIMITATIONS– Labor Code §5409– A defendant must show good cause of extraordinary circumstances under Labor Code §5502(e)(3) to raise the statute-of-limitations defense at the close of trial. [In this case, because of applicant's deposition testimony the defendant had no reasonable basis to raise the statute-of-limitations defense until applicant changed her testimony at trial. Annika Wahman v. Workers' Compensation Appeals Board, California Department of Corrections. 6 WCAB Rptr. 10,203
STATUTE OF LIMITATIONS– Labor Code §5405 requires a claim be filed within one year from the date of injury. In a cumulative injury case, Labor Code §5412 defines the date of injury as the date upon which the employee knew or should have known the disability was caused by his present or prior employment. New Century Chamber Orchestra v. Workers' Compensation Appeals Board (Martha Simonds) 6 WCAB Rptr. 10,109
STATUTE OF LIMITATIONS– Labor Code §5412– For the purpose of determining when the one-year statute of limitations commences to run for a cumulative injury, the date of injury is the date when there is a concurrence of disability and knowledge that the disability is industrially caused. The employee ordinarily will not be charged with knowledge absent a medical opinion. (See City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal.App.3d 465.) [In this case, the first medical evidence that applicant had a cumulative injury was a QME report almost two years after the applicant's heart attack.] Exposervices v. Workers' Compensation Appeals Board (David Cratty) 6 WCAB Rptr. 10,091
STATUTE OF LIMITATIONS– Tolling of the Statute of Limitations– In the event the employer fails to give the employee adequate notice, the one-year statute of limitations is tolled until the employee has such notice. (See Reynolds v. Workers' Comp. Appeals Bd. (1974) 12 Cal.3d 726.) [In this case, the employer sent the applicant a pamphlet concerning some of his rights, but the pamphlet neither explained the employee's remedies if the employer denies a claim nor set forth the time limits for filing an Application for Adjudication of Claim in face of the denial.] Exposervices v. Workers' Compensation Appeals Board (David Cratty) 6 WCAB Rptr. 10,091
STATUTE OF LIMITATIONS– Petition for new and further disability– Labor Code §5410– In this case, because the defendant admitted each of the specific injuries and furnished benefits, the later filed Applications for Adjudication were construed as petitions to reopen for new and further disability. Labor Code §5410 was applicable and these claims for specific injury were barred by the five-year limitation of section 5410. James A. Cooke v. Workers' Compensation Appeals Board, Kawasaki Motors Corporation. 5 WCAB Rptr. 10,327
STATUTE OF LIMITATIONS– Labor Code §5405 establishes a one-year time limit for commencement of workers' compensation proceedings. The year runs from the date of injury, defined by Labor Code §5411 as the date of incident in cases of specific injury, of from the last payment of medical or disability benefits. James A. Cooke v. Workers' Compensation Appeals Board, Kawasaki Motors Corporation. 5 WCAB Rptr. 10,327
STATUTE OF LIMITATIONS– Labor Code §5407– Absent evidence of true ignorance of identity of the alleged employer, a petition for serious and willful misconduct may not be amended more than one year after the date of injury to name new party defendants. McGee Street Production/ Hallmark Entertainment v. Workers' Compensation Appeals Board (Kenneth Peterson, deceased, Gabriella Peterson) 5 WCAB Rptr. 10,155
STATUTE OF LIMITATIONS– Labor Code §5402– An employer is barred from asserting a statute-of-limitations defense when it fails to comply with the statutory notification mandate. (See Reynolds v. Workers' Comp. Appeals Bd. (1974) 12 Cal.3d 726.) [In this case, a professional football player claimed cumulative trauma injury for injuries that caused him to lose practice time and game time. His employer, the San Diego Chargers, had notice of applicant's injuries sufficient to investigate the facts and did not advise applicant of his right to workers' compensation at any time.] Insurance Company of the West v. Workers' Compensation Appeals Board (Wayne Lee Morris) 5 WCAB Rptr. 10,149
STATUTE OF LIMITATIONS– Labor Code §5405(a)– Whether an employee knew, or should have known, his disability was industrially caused is a question of fact. (See Chambers v. Workmen's Comp. Appeals Bd. (1968) 69 Ca.2d 556.) Medical advice to an applicant that his disability was caused by his employment is sufficient to trigger the statute of limitations. (See Hooker v. Workmen's Comp. Appeals Bd. (1974) 36 Cal.App.3d 698.) [In this case, the applicant was represented by attorneys who deliberately chose not to file a toxic exposure claim and in addition there was sufficient evidence that applicant understood what was necessary to file a claim.] Joseph Hawkins v. Workers' Compensation Appeals Board, Levitz Furniture. 5 WCAB Rptr. 10,148
STATUTE OF LIMITATIONS– Labor Code §5410– When disability benefits or medical treatment have been furnished by an employer, either voluntarily or pursuant to an award, an employee can invoke the jurisdiction of the Appeals Board by initiating proceedings for new and further disability within five years of the date of injury. (See Standard Rectifier Corp. v. Workmen's Comp. Appeals Bd. (Whiddon) (1966) 65 Cal.2d. 287.) The furnishing of nonprescription analgesic medication constitutes the furnishing of "medical treatment" for purposes of Labor Code §5410. (See Blakeley v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 320.) However, the analgesic medication must have been furnished by the employer or his representative with the knowledge and intent that the medication is to alleviate an industrial condition. James W. Gordon v. Workers' Compensation Appeals Board, Certainteed Roofing Products Group. 5 WCAB Rptr. 10,147
STATUTE OF LIMITATIONS– Doctrine Of Laches– Delay alone ordinarily does not constitute laches as a lapse of time is separately embodied in statutes of limitation. What makes the delay unreasonable in the case of laches is that it results in prejudice. (See Lam v. Bureau of Security & Investigative Services (1995) 34 Cal.App.4th 29.) Prejudice is never presumed but must be affirmatively demonstrated by the defendant to sustain the burden of proof and the production of evidence on the issue. (See Piscioneri v. City of Ontario (2002) 95 Cal.App.4th 1037.) Gayleen Brainard v. Workers' Compensation Appeals Board, Blaine Corporation dba Rancho Check Cashing. 5 WCAB Rptr. 10,107
STATUTE OF LIMITATIONS– Labor Code §5412– An applicant will not be barred from filing a claim for workers' compensation benefits, beyond the ordinary statutory period for filing, where the applicant was lulled into a sense of false security by the defendant's voluntary payment of compensation until the time to file a claim for benefits had passed. (See Kaiser Foundation Hospitals/Permanente Medical Group v. Workers' Comp. Appeals Bd. (Webb) (1977) 19 Cal.3d 329; Nielsen v. Workers' Comp. Appeals Bd. (1980) 164 Cal.App.3d 918.) Menifee Valley Medical Center v. Workers' Compensation Appeals Board (Rita Lewis) 5 WCAB Rptr. 10,101
STATUTE OF LIMITATIONS– Labor Code §5405– The time limit for commencing proceedings for the collection of compensation is one year from the date of injury. An employee will be deemed to have knowledge that his or her disability is industrially caused if he or she is so advised by a physician. As a general principle, in absence of medical advice, an injured worker will not be charged with knowledge that the disability is work-related unless the nature of the disability and applicant's training, intelligence and qualifications are such that the applicant should have recognized the relationship between the known adverse factors involved in his employment and his disability. (See City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal.App.3d 476.) Bertha Cortez v. Workers' Compensation Appeals Board, Valley Health Systems 5 WCAB Rptr. 10,071
STATUTE OF LIMITATIONS– Labor Code §5810– If an employer or its insurance carrier, knowing of a potential claim, furnishes medical treatment or advances benefits relating to an industrial injury, the one-year limitation is tolled by the voluntary furnishing of benefits and the five-year period from the date of injury set forth in Labor Code §5410 is in turn triggered. [In this case, the claim for further benefits was filed beyond the five-year period and there was no basis for applying the doctrine of equitable tolling of the statute of limitations.] Beverly Kelley v. Workers' Compensation Appeals Board, Cooper's Coast to Coast Hardware. 5 WCAB Rptr. 10,051
STATUTE OF LIMITATIONS– Labor Code §5407– May a Petition for Serious and Willful Misconduct be amended after the expiration of the one-year statute of limitations to add a new and different defendant? McGee Street Productions/Hallmark Entertainment v. Workers' Compensation Appeals Board (Kenneth Peterson, deceased, Gabriella Peterson) 5 WCAB Rptr. 10,035
WCAB PROCEDURE– Statute of Limitations– All hearings before the Appeals Board are governed by the applicable provisions of the Labor Code and the rules of practice and procedure adopted by the Appeals Board. The Appeals Board is not bound by the common law or statutory rules of evidence or procedure. The statute of limitations set forth in Code of Civil Procedure 340(1) has no application to workers' compensation proceedings, as the applicable statutes of limitations for workers' compensation are found in the Labor Code §§5400, et. seq. Crawford & Company v. Workers' Compensation Appeals Board (Charles Babcock) 4 WCAB Rptr. 10,332
STATUTE OF LIMITATIONS– Petition for Contribution– Labor Code §5500.5– The one-year statute of limitations for filing a Petition for Contribution is measured from the date of the WCJ's award. (See Rex Club v. Workers Comp. Appeals Bd. (1997) 53 Cal.App.4th 1465.)
STATUTE OF LIMITATIONS– Petition for Contribution– Labor Code §5500.5– The joinder of an additional employer on the motion of another employer, who had earlier filed a compromise and release does not constitute "instituting proceedings" for contribution. (See General Accident Insurance Company v. Workers' Comp. Appeals Bd. (Loterstein) (1996) 47 Cal.App.4th 1141.) The Travelers Indemnity Company v. Workers' Compensation Appeals Board, Republic Indemnity Company of America, Granite State Insurance (Olga Villatoro) 4 WCAB Rptr. 10,267
STATUTE OF LIMITATIONS– Petition for Contribution– Labor Code §5500.5– The Travelers Indemnity Company v. Workers' Compensation Appeals Board, Republic Indemnity Company of America, Granite State Insurance (Olga Villatoro) 4 WCAB Rptr. 10,267
STATUTE OF LIMITATIONS– Doctrine of equitable tolling provides that the limitations period for a cause of action is tolled while the plaintiff pursues a separate remedy for the same wrong in a court or administrative forum. (See Addison v. State of California (1978) 21 Cal.3d 313.) [In this case, the plaintiff sought workers' compensation benefits alleging that she suffered from stress caused by verbal abuse and harassment in the workplace. The civil action was time barred since the complaint alleged a breach of contract action and did not state a cause of action for harassment or damages for personal injury based on harassment.] Annabelle Silva v. New Directions. 4 WCAB Rptr. 10,260
STATUTE OF LIMITATIONS– Cumulative trauma injury– Labor Code §5495– A claim for cumulative trauma injury is barred unless it is filed within one year of the date of injury. The date of injury in cumulative injuries is that date upon which the worker first suffered disability and knew, or in the exercise of due diligence, should have known, that such disability was caused by the workers' present or prior employment. The statute of limitations does not begin to run until there is concurrence of two elements: (1) compensable disability, and (2) knowledge of industrial causation. (In this case the applicant was not chargeable with the requisite knowledge of causal connection between her diagnosed hepatitis C and employment as a registered nurse until her treating physician explained the latency period of cirrhosis arising from hepatitis C and specifically implicated her employment as a nurse. County of Los Angeles v. Workers' Compensation Appeals Board (Stephanie Gleason). 4 WCAB Rptr. 10,249
WCAB PROCEDURE– Statute of Limitations– Labor Code §5405– When the defendant fails to fully informappliant of his rights to workers' compensation benefits, and does not inform the applicant that futher action on his part is necessary to protect his right to continue to receive appropriate medical treatment benefits, the defendant is estopped to raise the defense of the statute of limitations. (See Viking Freight Systems v. Workers' Comp. Appeals Bd. (Coultee) (1997) 62 Cal.Comp.Cases 123 [wirt denied].) American Home Assurance Company v. Workers' Compensation Appeals Board (Aurora Morones) 4 WCAB Rptr. 10,188
STATUTE OF LIMITATIONS IN CIVIL ACTIONS– The filing of a workers compensation proceeding does not constitute notice of a claim under the California Tort Claims Act. Terry Dronet v. Ralph Colunga 4 WCAB Rptr. 10,084
STATUTE OF LIMITATIONS IN CIVIL ACTION– A workers' compensation claim will not ordinarily toll a personal injury action against a third party who might be liable for the injury. (See Collier v. City of Pasadena (1983) 142 Cal.App.3d 917.) Anthony Hines v. Thyssen Elevator Corporation. 4 WCAB Rptr. 10,067
STATUTE OF LIMITATIONS– Labor Code §5409-– The employer has the burden of proof showing that the employee had knowledge of an injury claim and sat on his rights triggering the statute of limitations. The burden is not sustained by merely showing that the employee had some symptoms or misdiagnosed the condition. (See Chambers v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 556.) [In this case the defendant did not produce any evidence that they complied with the benefit notice requirements and filed in it s burden of proof on the statute of limitations.] Crown Cork & Seal v. Workers' Compensation Appeals Board (John Fields) 4 WCAB Rptr. 10,060
STATUTE OF LIMITATIONS– Labor Code §5405– Where an employer with notice or knowledge of an industrial injury breaches its statutory and regulatory duty to apprise the injured employee of his or her possible workers' compensation rights, the breach tolls the statute of limitations until such time as the employee receives actual knowledge of these rights from another source. (See Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Martin) (1985) 39 Cal.3d 57; Reynolds v. Workers' Comp.Appeals Bd. (1974) 12 Cal.3d 726.) Stephen J. Smith v. Workers' Compensation Appeals Board (Javier de la Grnade-Quezada) 4 WCAB Rptr. 10,011
STATUTE OF LIMITATIONS– Labor Code §5405– Actual knowledge of workers' compensation rights may be established when an attorney consulted by the applicant in fact advises the applicant of his or her possible workers' compensation rights. (See Hurwitz v. Workers' Comp. Appeals Bd. (Esposito) (1979) 97 Cal.App.3d 854.) Constructive knowledge of his or her rights may not be imputed to an employee merely because he or she consulted an attorney. (See King v. Workers' Comp. Appeals Bd. (Pelton) (1990) 55 Cal.Comp.Cases 28 (writ denied).) Stephen J. Smith v. Workers' Compensation Appeals Board (Javier de la Grnade-Quezada) 4 WCAB Rptr. 10,011
STATUTE OF LIMITATIONS– Labor Code §5405– Although a medical opinion confirming industrial causation may not be necessary, the applicant's lay opinion of industrial causation might not be enough for the statute of limitations to begin to run on a cumulative injury. Gwendolyn Doris v. Workers' Compensation Appeals Board, Cedars-Sinai Medical Center. 4 WCAB Rptr. 10,003
STATUTE OF LIMITATIONS– Labor Code §5405– A employer estopped to plead the statute of limitations when the employer can not persuasively demonstrate that adequate and proper notice to the employee as required by Title 8, §§9816, 9832, 9844 and 15400.2. (See Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Webb) (1977) 19 Cal.3d 329.) Frank Hampton v. Workers' Compensation Appeals Board, (General Motors Corporation. 3 WCAB Rptr. 10,301
STATUTE OF LIMITATIIONS– Labor Code 5412– An employee is not charged with knowledge the disability was caused by his present or prior employment unless the nature of the disability and the employee's training, intelligence and qualifications indicate he should have recognized the relationship between the known adverse factors involved in his employment and disability. (See City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal.App.3d 467.) Frank Hampton v. Workers' Compensation Appeals Board, (General Motors Corporation. 3 WCAB Rptr. 10,301
STATUTE OF LIMITATIONS– Labor Code §5405– An employer having knowledge of an employee's injury ahs the burden of proving that notice of possible workers' compensation rights was given to the employee, or the employee had, in fact, actual notice of his or her rights, in order to establish a statute of limitations defense. (See Sidders v. Workers' Comp. Appeals Bd. (1988) 205 Cal.App. 3d 613.) National Steel & Shipbuilding Company v. Workers' Compensation Appeals Board (Chat Quan) 3 WCAB Rptr. 10,278
STATUTE OF LIMITATIONS– Labor Code §5405– When the injured worker is prejudiced by the employer's failure to notify him of his workers' compensation rights, the statute of limitations is tolled for a period of time that the employee remains unaware of his or her rights. (See Kaiser Hospital v. Workers' Comp. Appeals Bd. (Martin) (1985) 39 Cal. 3d 57.) National Steel & Shipbuilding Company v. Workers' Compensation Appeals Board (Chat Quan) 3 WCAB Rptr. 10,278
STATUTE OF LIMITATIONS– Labor Code §5405– In order to support a finding that an employee had knowledge of job-related injury sufficient to trigger the statute of limitations, must there be evidence of a medical opinion confirming the disability is industrial? Gwendolyn Doris v. Workers' Compensation Appeals Board, Cedars-Sinai Medical Center 3 WCAB Rptr. 10,149
STATUTE OF LIMITATIONS– Labor Code §5405– The injured worker's claim for workers' compensation benefits is not barred by the statute of limitations if the employer fails to comply with Administrative Director Rules which require the injured worker be given appropriate notice concerning eligibility for workers' compensation benefits. New York Yankees v. Workers' Compensation Appeals Board (john Montefusco) 3 WCAB Rptr. 10,057
STATUTE OF LIMITATIONS– Labor Code §5405– Labor Code §5405 provides that the applicant must commence proceedings within one year of the date of injury. Labor Code §5412 defines an injury for a continuous trauma as one year prior to the first disability combined with knowledge by the applicant that the disability was caused by the employment. Since applicant filed his claim within one year of his knowledge, the applicant's claim was timely under Labor Code §5405. Lumbermans Mutual Casualty Company v. Workers' Compensation Appeals Board (Charles Shouse) 3 WCAB Rptr. 10,140
STATUTE OF LIMITATIONS– Cumulative Injury– Labor Code §5412-The date of injury in a cumulative injury of occupational disease case is the date on which the employee (1) first suffered disability and (2) knew or should have known the disability was work-related. A medical opinion may form the basis for attributing knowledge of the industrial causation, but is not a requirement where the evidence establishes actual knowledge on the part of the injured worker. Honorio Esclante v. Workers' Compensation Appeals Board (Thorn/EMI Capitol) 3 WCAB Rptr. 10,045
STATUTE OF LIMITATIONS– Cumulative Injury– Labor Code §5412-The date of injury in a cumulative injury of occupational disease case is the date on which the employee (1) first suffered disability and (2) knew or should have known the disability was work-related. A medical opinion may form the basis for attributing knowledge of the industrial causation, but is not a requirement where the evidence establishes actual knowledge on the part of the injured worker. Honorio Esclante v. Workers' Compensation Appeals Board (Thorn/EMI Capitol) 3 WCAB Rptr. 10,045
STATUTE OF LIMITATIONS–Latent injury cases–Injuries suffered as the result of a specific incident or exposure but which have latent effects are a judicially recognized injury category separate from specific injury, occupational disease, and cumulative injury. (See Fruehauf Corp v. Workmen's Comp. Appeals Bd. (Stansbury) (1968) 68 Cal.2d 569.) In latent injury cases, the date of injury is the date that there is concurrence of disability and of knowledge of its industrial causation. (See Chevron U.S.A. v. Workers' Comp. Appeals Bd. (Steele) (1990) 219 Cal.App.3d 1265.) [In this case, the widower had no knowledge until a physician advised him that his wife had hepatitis C and that the condition was industrially caused. (See City of Fresno v. Workers' Comp. Appeals Bs. (Johnson) (1985) 163 Cal.App.3d 465.) Los Angeles County of Education v. Workers' Compensation Appeals Board (Rachel Guajardo (deceased), Jessie Guajardo (Widower)) 5 WCAB Rptr. 10,273
STATUTE OF LIMITATIONS–Estoppel to assert defense–An employer is estopped to assert the statute of limitations as a bar to an employee's claim for workers' compensation benefits when the employer has knowledge of a possible industrial injury and failed to advise the employee of the possibility that the employee may have a right to workers' compensation benefits. (See Reynolds v. Workers' Comp. Appeals Bd. (1974) 12 Cal.3d 726.) [In this case, the employee's supervisor was aware of the applicant's heart condition and the employer did not investigate or notify the employee of the possible relationship to the worker's job duties.] Santa Ana Unified School District v. Workers' Compensation Appeals Board (Ben Knowles) 5 WCAB Rptr. 10,279
