decisions interpreting the statute of
limitations. This case gives a
synopsis of current case law.
WCAB
an admitted specific injury to his
elbow. He received workers
compensation benefits after surgery.
After surgery he complained of neck
pain and an evaluating physician
found no ongoing elbow disability,
but did find a cumulative trauma
industrial in nature to the neck.
applicant a claim form in April 1993
and a follow-up letter in June 1993
to file a claim for the neck. The
applicant claims he did not know that
he needed to file a separate claim for
the neck because of his sixth grade
education and not receiving an
attorney's advice
had been previously represented by
counsel for a 1989 compensation
claim. The workers compensation
judge found the employer was
estopped to raise the statute of
limitations because the applicant was
not advised of his rights under the
Labor Code. The Appeals Board
reversed saying the applicant knew or
should of known of his rights and the
employer should not be estopped.
must be filed within one year of the
date of injury. Labor Code section
5412 defines date of injury, which
includes the language mat the applicant
knew or should have known that his
injury was industrially caused with
reasonable diligence. This language is
important because it could be argued
that the applicant should have known
he had to file a claim within the
prescribed time.
notice requirements the employer is to
give the injured worker for the statute
of limitations to be applicable. The
appellate court cites the Reynolds case
stating that the statute is tolled until the
employee receives such notice.
However, at the time of the Reynolds
decision the statute was different and
terms of the notice requirements.
decide when the applicant knew or
should have known of his industrial
neck injury, April 1993 or November
1994. The appeals court agreed with
the WCAB that there was facts to
indicate that the applicant knew as of
April 1993 but indicated that was not
the end of the analysis. The appellate
court indicated that the notice of the
time limit to wasn't provided to him
and even though he filed two previous
claims this was not enough to
acquaint him with the time parameters
because in April 1993 he was
unrepresented. It is believed that is
the key to this case. If applicant had
been represented by an attorney at the
time the outcome of this case might
be different.
Firm: SAMUELSEN, GONZALEZ,
VALENZUELA, AND SORKOW
SAN PEDRO, CA 90731
Phone: 310 831-0872
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