Statute of Limitations With Teeth
In California Workers’ Compensation defense practice, the Statute of Limitations defense is always in the back of the practitioner’s mind.
Labor Code § 5405 limits “[t]he period within which proceedings may be commenced” to one year from (a) the date of injury; (b) payment of benefits; or (c) provision of medical treatment.
A recent Writ Denied case (Barragan v. WCAB) defines the meaning of commencement of proceedings and puts some fresh teeth into the jaws of that old SoL dog.
Applicant claimed an injury to his back and neck occurred in October of 2006. Defendant provided some medical treatment, but denied the claim in January of 2007.
Defendant took applicant’s deposition in March of 2008.
Applicant claims to have filed an Application for Adjudication of Claim on July 3, 2007, but no record of this was in the Board file, served on defendant, nor added as an exhibit at the Mandatory Settlement Conference. Nor was this 2007 application marked for identification at trial.
The Court of Appeals declined to review the WCAB decision that a deposition does not institute proceedings. Only an Application for Adjudication of Claim can satisfy the requirements of Labor Code § 5405.
In other words, an applicant must file an Application for Adjudication of Claim within one year of the latest of parts (a), (b) or (c) above.
A deposition does not commence proceedings, nor a request for documents, nor a letter to applicant’s attorney, nor a get-well-soon card signed by every one of the applicant’s co-workers.
I like this case for yet another reason – the applicant did not put on all the evidence he could have, namely the allegedly date-stamped application that would have defeated the Statute of Limitations defense.
But the Workers’ Compensation Appeals Board did not send the case back to the Workers’ Compensation Judge to “develop the record” and allow applicant another swing at the ball.
The MSC came and went, discovery opened and closed, and that, as they say, was that.
In other words, the Statute of Limitations defense appears to have some teeth yet. And to illustrate this point further, here is a short video on the Statute of Limitations defense.
OK, the case is favorable to defendants on the failure of the IW to prove that an Application was timely filed and one of the issues was whether a deposition of the applicant amounted to “commencement of proceedings.” So, how did the deposition go forward without the filing of an Application which confers WCAB jurisdiction for discovery purposes? Discovery without WCAB jurisdiction is sanctionable. Just asking.
Thomas is right, of course – I believe the case he is referring to is a 2003 consolidated case (Donna Yee-Sanchez v. Permanente Medical Group and Natalie Piatt v. Eureka Union School District).
There, the WCAB held that discovery, including a deposition, is grounds for sanctions if conducted before the filing of an application.
I don’t know what happened here – applicant was represented, so perhaps applicant’s attorney was not aware of the rule and advised his client to attend the deposition. It is possible for both parties to go through the motions without noticing the missing step along the way.
What are your thoughts, Thomas?