Happy Wednesday, dear readers!  Some of you, no doubt, have future lawyers (or, at least, future law students) in your lives, and you’ve probably spent the last week and a half patiently calming their poor nerves as they await the results of the dreaded LSAT examination.  Practicing attorneys will probably smile as they think fondly back to the inexplicable delight that is taking the bar exam and waiting until just before Thanksgiving to give friends and family members the news.  In either case, keep calm and carry on.

Your humble blogger is no stranger to taking positions disliked by many in the workers’ compensation community, and today’s post should be no different, as the target of my post is (unintentionally, but effectively) a widow’s claim.

In the case of Thompson v. Huhtamaki Americas, Inc., a 2015 writ denied case, applicant (the late Mr. Thompson) filed an application alleging a cumulative trauma as a result of toxic exposure.  Sadly, applicant passed away in June of 2012, without resolution of his workers’ compensation claim.  Shortly thereafter, applicant’s counsel filed a petition to substitute applicant’s widow in his case.  In January of 2014, applicant’s widow also filed an application seeking death benefits.

Defendant raised the statute of limitations, arguing that Labor Code section 5406.5 holds that “[i]n the case of the death of an asbestos worker … from asbestosis, the period within which proceeding may commence for the collection of the benefits provided by Article 4 (commencing with Section 4700) of Chapter 2 of Part 2 is one year from the date of death.”

Relying on the case of Earley v. Workers’ Comp. Appeals Bd. (2003), a writ denied case, the WCAB majority reversed the workers’ compensation Judge’s finding in favor of applicant on the statute of limitations issue.  As held in Earley, when a worker establishes a date of injury inter vivos, “the date the widow discovered that the decedent’s death was industrial did not create a new date of injury.”

Earley, in turn, noted the California Supreme Court case of Massey v. WCAB (1993), wherein California’s Justices ruled that any death benefits claim must be both within 1 year of the death and 240 weeks of the underlying injury, or be barred by statute.

One commissioner dissented, reasoning that he would construe applicant’s substitution petition as an application.

Now, as a cold, heartless, defense attorney, your humble blogger can’t really disapprove of a decision which favors the defense.  However, as a human being, it’s hard not to be moved by the plight of a widow.

One takeaway from this we should have in mind is that it may be worthwhile to pursue the statute of limitations defense after all.  One common phrase everyone loves to say, whether it is a defense attorney muttering it with sympathy or an applicant’s attorney passionately chanting it as he or she pounds on the Hearing Room table, is: “the statute of limitations is a disfavored defense!”

It’s true, it is – not by defendants, of course, but by many of the other pieces on the Chess Board that is our workers’ compensation world.  That being said, the defense’s willingness to litigate the issue and take it up on reconsideration resulted in a total bar to the claim.  Defendants should consider pursuing this defense along with others if the facts lend themselves to the narrative.

In the meantime, dear readers, I will resign myself to hearing “the LSAT scores aren’t out yet!” a few times a day.