There are times when, as a California Workers’ Compensation defense attorney, one can’t help but sigh in frustration.  Now, I don’t sigh in frustration when I need to put in extra hours on a case, when an issue is challenging, or when opposing counsel decides to go by Dick instead of Richard.  These are just parts of the job and, after all, “this is the business we’ve chosen“.    What makes your overworked and underfed blogger sigh?

Imagine reading through a file, and realizing that the procedures up to this point were handled flawlessly by a dedicated and knowledgeable adjuster, the law is clearly on the side of the employer, and the defenses are all mustering to protect the defendant from liability.  Then you hear the voices…

First there is the voice of applicant’s attorney “blah.. blah… blah… injustice… blah… blah.. unfair… blah… blah… my fee!”  Then there is the voice of the Workers’ Compensation Judge: “Well, Mr. Grinberg, don’t you think it’s unfair to deny a poor widow her husband’s death benefits over some mere technicality?”

In the case of Kathleen Brezensky (widow) and Chester Brezensky (Dec’d) v. Workers’ Compensation Appeals Board, that “mere technicality” was the statute of limitations under Labor Code section 5406(c).

Applicant sustained an industrial injury in 2002, and died in 2009.  An application was filed in 2010, and defendant raised the statute of limitations defense.  The WCJ concluded that the case could proceed and the statute of limitations defense failed because applicant did not know, until after the death of her husband, that the industrial injury of 2002 was the (theorized) cause of his eventual death.

Defendant petitioned for reconsideration, and the Workers’ Compensation Appeals Board rescinded the WCJ’s order and issued a “take nothing” order for the applicant-widow.  Relying of a California Supreme Court case, the WCAB found that there can be no claim for death benefits if the death occurs more than 240 weeks after the alleged death-causing injury, regardless of applicant’s awareness of what caused the death.

In other words, the 240 week limit applies even without any knowledge on the part of the applicant.

One of the benefits of operating in a system where anything can happen, is that… well… anything can happen, including the proper application of the law, without passion or prejudice, even in the cases of sympathetic applicants.  Fortunately, the defendant in this case chose to go the distance and petition for reconsideration.

The Court of Appeal subsequently denied applicant’s petition for reconsideration.

Your humble blogger has, at times, been called many less-than-flattering names for his refusal to side with poor widows and orphaned children in such cases.  All my sympathies go to those poor people injured, unable to work, or grieving for a lost family member.  But when one’s heart overflows with sympathy, we send flowers and a card – we don’t rob a blameless victim, like the employer.