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Do You Know As Much As Your Lawyer?

April 15th, 2013

In a recent case, Samuel Turco v. City of Oakland, a workers’ compensation Judge found the applicant to have sustained a cumulative trauma to his ol’ ticker heart and cardiovascular system through his term with the brave men (and women) of the Oakland Police Department.

His career ended in 1998, however, so defendant City of Oakland became inclined to raise the statute of limitations defense, seeing how the application was only filed in April of 2008 (using all of his fingers and keeping his toes as a reserve, your humble blogger estimates about 10 years have passed since applicant’s last date of employment with the City of Oakland).

The WCJ, however, found that applicant’s claim was not barred by the statute of limitations, because he did not have knowledge of compensable disability or industrial causation for more than one year prior to his filing a claim against the city of Oakland.

While working for the City of Turlock as a civilian crime analyst, applicant sustained a heart attack in 2002, and a friend told him that he might have a compensable claim.  Applicant sought legal counsel and eventually filed an application against the City of Turlock in 2007, and, as stated above, against the City of Oakland in 2008.

The WCAB held that, because applicant became represented and filed a claim in April of 2007 against the City of Turlock, the knowledge of industrial injury should be imputed to him through his attorney, with respect to any claim against the City of Oakland.  Because applicant delayed in filing an application for one year his claim became barred by the statute of limitations.

The Court of Appeal denied applicant’s petition for a writ of review.

The theory is an interesting one – the applicant is expected to know everything his attorney does.  But how far can we stretch it?

In the Turco case, the applicant was expected to know he could file a claim against the City of Oakland because he was represented and was in the process of filing a claim against the City of Turlock.  Could we apply the same concept to an applicant who had been represented in previous cases?

Jack files a cumulative trauma claim against Jane Corp for injury sustained from January 1, 2000 to January 1, 2001.  Jack is represented and, after the case stips out, he continues to work for Jane Corp.  In 2013 he files a claim for another cumulative trauma, this one from January 1, 2006 to January 1, 2007.  He claims that he didn’t know that the injury was compensable until just recently.  Can the fact that he is a repeat player in the comp system be used to bar his claim?

Often enough, we see repeat players in comp – ones who punctuate every turn in their job history with another claim, scoring free medical treatment for conditions of questionable causation and paid vacations of up to 104 weeks.  Some of them can, without much difficulty, handle cases on their own because of their experience (and some of them do).

In civil tort law, for example, people of higher skill or education are held to a higher standard of care – a good Samaritan walking by an injured person on the street will have to provide a greater level of care if he’s a surgeon or a retired Army Medic.  Your humble blogger submits to you that the same standard should apply for those who have become repeat players in the Comp system, and that the learning experience of past representations should negate claims of ignorance as to one’s rights vis-à-vis filing a claim.

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