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Grinberg: Death Benefits Not Barred by SOL; Stips Don't Resolve 'Date of Injury'

  • State: California

Are you feeling a little too cheerful? Do you need something to bring your happiness down a notch or two? How about the grim and dark subject of death to keep those joyful inclinations in check?

Gregory Grinberg

Gregory Grinberg

Prepare to conjure images of the grim reaper, but bearing a briefcase instead of a scythe and a suit instead of a black cloak.

The case in mind is a writ-denied case, Kriha v. City of Los Angeles, and the issue at the heart of the matter was the statute of limitations for the widow of a deceased police officer. 

The deceased sustained a cumulative trauma ending on May 6, 2008. He died on Sept. 16, 2014. The date of injury for the CT ending in May 2008, however, was found to be April 29, 2011, based on the “date of knowledge” element of Labor Code Section 5412. 

However, an application for death benefits was not filed until Dec. 15, 2014 —three years, seven months) from the date of injury — though only a few months after the date of his death.

The workers' compensation judge held that the death benefits were not barred by the statute of limitations because proceedings were initiated less than 240 weeks from the date of injury, and less than one year from the date of death, as per Labor Code Section 5406. The judge awarded death benefits as per the code. 

So what’s the deal? Why is defendant seeking reconsideration and, after that, a writ of review?

The argument for the defendant lies in the date of injury. To wit, the date of injury, as per the City of Los Angeles, should be the end of the CT period — May 6, 2008. In that case, the death benefits claim would be barred, being more than 240 weeks from the date of injury.

The date of injury for cumulative trauma is set by statute, to wit, Labor Code Section 5412, which defines a CT DOI as the date the injured worker suffered disability and knew or should have known of the industrial causation of the injury.

Defendant asserted that the accrual of temporary disability benefits as of June 30, 2008, along with a claim form alleging the mechanism of injury filed in June 2008, should shift the date of injury to outside the statute of limitations period. But the rub lies in the fact that neither the judge nor the Workers' Compensation Appeals Board commissioners could find any such claim form filed.

From the way the panel opinion is drafted, it does not look as though the claim form was filed or offered into the record. 

And here’s the other kicker: The original case was stipped out. Searching the Electronic Adjudication Management System as I draft this, the injury date is listed as Oct. 26, 1964-May 6, 2008. In fact, if my discerning readers would care to look at the form provided by the Division of Workers' Compensation for stipulations with request for award, page 1 and page 5 provide for a date of injury, and in the case of cumulative trauma, the fields are for start date and end date.

I do not have the stipulations signed in the Kriha case, of course, but would be willing to bet dollars to doughnuts that the stipulations resolving the case in chief reflect a date of injury in 2008.

So, what does that mean for the rest of us? We all have our share of cumulative trauma cases that we have stipped out. Does that mean that all of those were  resolved without a date of injury? Should we be specifically listing, as an issue resolved, the date of injury in our cases?

I don’t take any pleasure in the thought of a police officer’s widow being deprived of death benefits, and it is emotionally gratifying, if not logically, to see that result avoided in this case. However, it is concerning to me that what should be a given — that the date of injury listed in the field provided for “date of injury” on stipulations with request for award forms — might not be effective.  

What are your thoughts? Am I just being paranoid, or does such reasoning have the potential to disturb cases previously resolved via stipulated award?

Gregory Grinberg is a workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.

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