Your humble blogger, once in a while, is blessed with a genius comeback – one that stings with sharpness and wit, while awes with its relevance and coolness.  Unfortunately, these comeback come to your humble blogger late at night when he can’t sleep and is reliving the conversation he had earlier that day again… and again… and again…

The thing to do in such a situation is sigh and move on with your life.  What you don’t do is go out and confront the people you previously conversed with hoping to get set up for that zinger (unless your name is George):

I bring you, then, the case of Janet Parker v. Costco Wholesale Corporation, where the defense sought to raise the defense of statute of limitations on appeal.  There, defendant failed to list statute of limitations as an issue in its answer, at the Mandatory Settlement Conference, or at trial (although at trial would have been too late).

What likely happened was that, facing an adverse decision following trial, defense counsel sought grounds for an appeal and realized there was an argument to be made.  So, why not? Get the kitchen sink and throw it in, what could possibly go wrong?

Well, a lot can go wrong.  First off, the Workers’ Compensation Judge noted in his Report and Recommendation on Reconsideration that Labor Code section 5409 specifically provides that the statute of limitations is an affirmative defense and it can be waived (read that as SHALL BE WAIVED) unless it is raised.

Furthermore, raising such an argument does one thing and one thing only – it undermines the credibility of the rest of the petition.  Every single order issued by a workers’ compensation Judge makes at least one person unhappy, and a good portion of those unhappy people darken the doorstep of the WCAB with their grievances.  So, right out of the gate, the petitioner is facing an uphill battle – don’t make the climb any steeper by raising an affirmative defense on appeal.

Finally, if that wasn’t enough, don’t think you can spin the other side’s wheels with a baseless petition: in this case, applicant sought sanctions under Labor Code section 5813 for a petition it called “frivolous and without any reasonable basis.”  The WCAB declined to award sanctions only because “the attorney and law firm responsible for the Petition for Reconsideration are no longer involved in this matter.”  (Your humble blogger, as is his habit, declines to name any names.)

I don’t like the idea of agreeing with applicants’ attorneys, or criticizing his fellow warrior-poets of the defense bar, but remember, dear readers, we’re supposed to be the good guys and the voices of reason – your arguments should stay within the bounds of logic and good faith, and your kitchen sink should stay in the kitchen (and never the twain shall meet).