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…