WCDefenseCA

As some of my beloved readers may know, your humble blogger is an escapee from the Soviet Union.  Being such makes one a relative expert in Propaganda.  Thus, I can tell you two things that you can take to the proverbial bank on this subject:

1. A real propaganda is when a British person takes a good look at something (syntax: “Be a good chap and take a proper gander at my tea collection.  Cheerio!”);
2. In California workers’ compensation law, what is good for the goose is not necessarily good for the gander.

Admittedly, that set-up for a dad joke was pretty long, not unlike the neck of a goose since we’re on the subject, but I hope you’ll bear with me while we get to the point your humble blogger is trying to make.  In a recent panel decision, the WCAB relied on the fact that applicant had the guidance of an attorney to determine that he waited too long to pursue SIBTF benefits.

The case is that of Roberts v. Perkins and Will Group.  Applicant had a case from 2007 which resolved via stipulated award for 41% PD in 2012.  He had another stipulated award for a 2009 CT injury which resulted in a separate stipulated award of 53%, also in 2012.  He then waited until 2019 to file an application for Subsequent Injuries Benefit Trust Fund benefits. 

The parties proceeded to trial on whether applicant was permanently totally disabled and whether the statute of limitations barred his SIBTF claim.  Applicant was represented for his original two claims but testified at trial that he did not become aware of the existence of SIBTF until late 2018.  The trial judge found that “applicant did not file his claim against SIBTF within a reasonable time from when he knew or should have known that he had a probable claim, and that his claim was thus barred as untimely.”   On appeal, applicant argued that the WCJ erred in “taking applicant’s representation into account” in concluding applicant should have known about his eligibility for SIBTF benefits.

In affirming the WCJ’s finding, the WCAB panel reasoned that applicant had 5 years from the date of his second injury to file for SIBTF benefits, as the original injury was already more than 35% PD.  But, what’s more important to your humble blogger (as a defense attorney, I rarely if ever have to address SIBTF issues), is that the WCAB found no error in imputing knowledge of SIBTF claims to applicant because applicant was represented.

Well, if such logic is good for the goose, why not share that sauce with the rest of the flock?

When an applicant retains counsel, knowledge of that attorney SHOULD be imputed to the injured worker, but not just about SIBTF: about cumulative traumas as well.  Any applicant attorney who claims to not know that cumulative traumas exist or constitute potential claims should hang up his or her spurs, and turn in his or her State Bar card.  Of course, the AA Bar is intimately familiar with cumulative trauma claims.

If that’s the case, why does so much of the WCAB resist settlements for specific injuries that include resolution of potential but unclaimed cumulative traumas through that date?  Why doesn’t the date of injury for any subsequently filed CTs tie into when applicant became represented?

Knowledge of what a CT is should absolutely be imputed to applicants upon becoming represented, whether that representation is for a specific injury or a cumulative trauma.  And if there are applicant attorneys out there that really are keeping the existence of CT claims a secret from their clients, shouldn’t that be an issue between those attorneys and the State Bar?

Just for context, as you curse your humble blogger for his harsh demands for applicants and their attorneys, your humble blogger asks you – what is necessary for an applicant to claim a CT?  Does the applicant first have to get a report from a physician confirming that there is, in fact, an industrial CT?  Or is it enough for applicants to simply make the allegation?  If there is no requirement to first obtain a medical report of this sort, then why is there this fantasy that applicants could not possibly have known that there was a CT until there was such a medical report?

Your humble blogger would love to see the same reasoning as described in Roberts applied to cumulative traumas and the questions of date of injury and the statute of limitations defense.  If it were so done, perhaps we would see fewer cases of the applicant bar skirting the post-termination defense by alleging the very same injury that would otherwise be barred by alleging a CT instead.  Perhaps we would finally see world peace and all the ills that plague the human experience vanish before our eyes.  Too much, dear readers?

Alrighty dear readers, here we are back for another day of the glorious swamp of workers’ compensation.  August is almost gone, the kids are back in school, and your humble blogger is at it again, trying to see all benefits denied. 

When I was in law school, one of my very good friends was a failed poker shark.  He would wait eagerly for disbursement of financial aid checks so he could rush to the Capital Card Room Casino in Sacramento and “not gamble” the funds away.  He told me that when one draws an Ace and King as pocket cards, that’s sometimes referred to in the poker shark community as the “Anna Kournikova” because the hand looks great but rarely wins.

Anywho, how excited do we all get when we see the possibility for a statute of limitations defense?  Well, sadly enough, and often enough, the statute of limitations defense fails, as it did in the recent panel decision of Elks v. Sharp Healthcare.  In that case, applicant started developing bilateral wrist symptoms in 2000, and sought treatment for the same.  By 2000 she was already being informed of a diagnosis of carpal tunnel syndrome, and in 2009 her primary care physician told gave her splints and assigned her exercises to do at home.  During a 2014 appointment, her primary care physician advised her of the likely industrial nature of her symptoms.

In June of 2017, some three years after her primary care physician had told her that her symptoms were work related, Ms. Elks completed her employer’s accident reporting and treatment form, alleging industrial injury to her bilateral wrists and hands. 

Just to pause from the facts for a moment, dear readers, if an applicant waits three years to file a workers’ compensation claim, how excited are you for a statute of limitations defense?  Do you see the Ace-King combo peeking out of your pocket poker cards?

Anywho, defendant asserted a variety of defenses, including based on Labor Code section 5400 for failure to report the claim within 30 days, and Labor Code section 5405 for failure to file a claim within one year of injury.  But, as prophesized by my failed card shark classmate, neither one of these was a winner, no matter how good they looked.

The WCJ and WCAB disposed of the argument based on Labor Code section 5400 because, in the opinion of the WCAB, defendant failed to show it was “misled or prejudiced by such failure” to report the claim within 30 days of knowledge, as required by section 5403.  Well, what would have constituted prejudice?  Your humble blogger hasn’t found a lot of cases where failure to give notice has been found by the WCAB to prejudice the defendant.  Hypothetically speaking though, if there is medical evidence of a condition getting progressively worse, then an employer’s knowledge of potential work restrictions could avoid further aggravation of the condition.  Failure to report the injury deprives defendant of the ability to investigate and offer modified work, no?

Anywho, how did the WCAB get to rejecting the 1-year statute of limitations defense under Labor Code section 5405?  Well, the “date of injury” for a cumulative trauma is determined by Labor Code section 5412 – where disability and knowledge of industrial causation have both occurred.   So we had knowledge of industrial causation as early as 2014… but what about disability?  After all, if defendant can show disability that occurred at least a year before the claim was filed, the statute of limitations should bar the claim!

Well, disability, as per the Rodarte case means compensable disability – whether temporary or permanent.  In this case, applicant missed no time from work and had no permanent work restrictions or assigned permanent disability, which the WCAB used as a basis for rejecting the defense.

So, what’s the take away from this?  If you spot a potential statute of limitations defense, your efforts don’t stop at issuing a denial.  Discovery is necessary to identify permanent work restrictions, lost time from work, anything that might give rise to potentially compensable disability.  And, of course, there is the universal search for knowledge… well knowledge of industrial causation at least.

In other words dear readers, we on the defense side get no days off.  It’s the Sisyphus treatment for us.

Till next time…