During my first year as an attorney, my client was dismissed from a medical malpractice lawsuit because the trial judge determined the plaintiff-patient became aware of the alleged negligence a year and a day before the one-year statute of limitations ran. In workers’ compensation litigation, the statute of limitations has been more elusive. Case law driven loop holes and generous application of equitable tolling tend to swallow up the rule. A colleague told me that in workers’ compensation, the statute of limitations is really a “suggestion of limitations.”
But perhaps the suggestion of limitations is just a suggestion. In a recent split panel decision, Moua v. Port of Stockton (May 14, 2019), a divided panel granted reconsideration and held the employee take nothing based on a statute of limitations defense. It concluded that the employer, Port of Stockton, did not have knowledge of a police officer’s back injury so as to toll the statute of limitations from running.
Evidence at trial on the issue of employer-knowledge was lacking. The employer knew the employee took time off work for a low back injury and suggested the employee apply for EDD. Medical records at the time did not document whether the employee or his physician determined that the back condition was work-related. There was a doctor’s note from Kaiser that stated the employee would be off work for a month, that he had a herniated lumbar disc and would need surgery. The employee admitted he did not report an industrial injury at that time and was not sure himself if he had a work related injury.
Generally, the employee has one-year from the date of injury to file an application for adjudication of claim. (Lab. Code § 5405.) The statute of limitations is tolled if the employer had knowledge of the injury, but failed to provide the employee a claim form as required by Labor Code sections 5401-5402. (See Reynolds v. Workers’ Comp. Appeals Bd. (1974) 12 Cal. 3d 726.) The policy is that the employer should not be able to enforce the deadline against an employee when the employer failed to comply with its statutory obligation to provide the employee notice of his/her rights to file a workers’ compensation claim.
In Moua, no one appeared to dispute that the application was not filed within one-year. Indeed, the case was filed a decade after the employee’s October 3, 2007 injury. The employee testified he did not know his back problems were work-related at the time and he did not report an injury. There was no evidence of a communication from the employee, or doctor’s note that represented the back problem as work-related.
The trial judge reasoned the employer should have known of the injury because the employee wore a duty belt as a police officer, and the Port of Stockton should have been aware of the statutory duty belt presumption provided in Labor Code section 3213.2, even though the Port of Stockton is not an employer covered by the section.
On reconsideration, the majority panel disagreed that a statutory presumption of injury imparts knowledge to the employer under Labor Code section 5402. The majority panel also reasoned that constructive knowledge, i.e., a hindsight judgement on what the employer “should have known” is not the standard for when the employer is obligated to provide an employee a claim form under Labor Code section 5401. Adopting the Supreme Court’s reasoning in Honeywell v. Workers’ Compensation Appeals Bd. (Wagner) 35 Cal. 4th 24, the panel members explained that the employee has the initial burden of notifying an employer of an injury, unless the employer already knows of the injury from other sources. The employer’s duty to notify the employee of his/her workers’ compensation rights, “does not arise whenever the employer learns facts that would ‘lead a reasonable person to conclude with some certainty that an individual injury … has occurred or is being asserted’… the duty arises when the employer knows of an injury or claim, not when it should have known…. (Id. at p. 38.)
The panel in Moua dismissed the idea that the employee’s medical leave in 2007 should have put the employer on notice. Medical leave in and of itself does not provide an employer notice of an industrial injury. “It appears self-evident that not all medical conditions or need for medical leave have industrial causes. Nor that the fact that applicant needed treatment beyond first aide imputes knowledge by defendant of a potential work relationship for his back condition.”
Late-filing workers’ compensation claimants should be put to task if they are going to assert tolling of the statute of limitations. Applying a “constructive knowledge” standard is common in a variety of legal contexts. For good reason, it should not be extended to Labor Code section 5402. During a workers’ compensation trial, employer-witnesses are not being judged by a jury of their peers who can assess what the fictitious, ordinary “reasonable person” should have known under the circumstances, but by an experienced workers’ compensation professional who can probably contemplate a work-related injury under any set of facts due to years of experience as a workers’ compensation attorney and judge.