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“Or in the exercise of reasonable diligence should have known…” and 5412

Now and then, your humble blogger is denied sleeping the sleep of the just by the thoughts that plague his over-worried and overworked mind.  Sometimes the thing keeping your humble blogger up is a simple thought, like “why do they call grapefruit grapefruit? There’s already a fruit that’s a grape and it’s called grape.”   Other times, though, it is a question more germane to your humble blogger’s life calling, such as “what is that giant blank space in the middle of Labor Code section 5412?”

Go ahead and flip to any copy of any Labor Code, dear readers, even this one online.  In the middle of Labor Code section 5412 is a giant blank space that the Legislators left for no apparent reason.  It reads as follows: “[t]he date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, … … … … … … …, that such disability was caused by his present or prior employment.”

What’s that, you say, dear readers?  Your copy of the labor code includes the language “or in the exercise of reasonable diligence should have known”?   That’s odd, because there doesn’t seem to be a lot of case law supporting the theory that this section of 5412 exists.

Well, it’s hard to find cases where the WCAB applied that oft-overlooked clause of 5412, but a couple of cases that are citeable authority are actually out there.  (May thanks to Ms. L.L. for pointing these out).

In the case of Alford v. Industrial Acci. Com.a 1946 Supreme Court opinion, it was held that an injured worker’s own, subjective connection of his respiratory symptoms with his work activities, was enough to provide knowledge of industrial causation.

Mr. Alford had, for months, asked his employer to install a ventilator to carry off the excess dust he found himself breathing in at the plaster cast plant where he worked.  He was even coughing up plaster!  At one point, prior to any medical reports confirming industrial causation for his respiratory illness, he went to his employer complaining that continuing this work was detrimental to his health.

The Supreme Court held that his own subjective connection between breathing in the plaster particles and the resulting respiratory symptoms was enough notice to be barred by the statute of limitations.

Another case is that of Nielsen v. WCAB, a 1985 Court of Appeal opinion which held that “[w]ithout more, applicant’s emphatic testimony he thought from the very first day he was off work that his condition was caused by the work assembling and disassembling the bottle racks … would be sufficient to support the determination of  both the WCJ and the Board that he knew or reasonably should have known as of that date that his disability was caused by his employment.”

The Court of Appeal held that if a doctor had told applicant his injuries were not industrially caused, then the requirements of section 5412 would not have been met (probably), but that wasn’t the case in the Nielsen matter.  The Court of Appeal further rejected the writ denied case in International Paper Co., which held that “there can be no ‘legal knowledge’ or knowledge of industrial causation sufficient to start the statute of limitations running where the employee actually believes the disability was industrially caused, but has not obtained a medical opinion verifying that belief.”

In other words, if the injured worker reasonably believes that the injury is industrially caused, and there is no medical opinion to the contrary steering him or her astray, 5412 should be satisfied.  But, what if the injured worker doesn’t subjectively believe it?  Well, perhaps the same logic could apply: what would a reasonable person with the same education and experience of the injured worker have done?

From your humble blogger’s even more humble experience, there appears to be some judicial resistance to the theory that the injured worker knew or should have known of the industrial causation without a medical report.  But, at the very least, it’s worth a try, backed up with a solid brief, of course.

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