Have you seen the Terry v. Department of Corrections decision (writ denied) originating at the Eureka board?

Gregory Grinberg

The Terry case is a sad but straightforward one. Terry sustained an admitted injury in May of 2011 to his spine. Unfortunately, he passed away in May of 2016, and his widow filed a death claim alleging that the admitted spine injury from 2011 contributed to his death.

The workers' compensation judge (and later the Workers' Compensation Appeals Board) found that the claim for death benefits was not compensable, relying on Labor Code section 5406 (“proceedings shall not be commenced more than one year after the date of death, nor more than 240 weeks from the date of injury.”)

In this case, the death was about 260 weeks from the date of injury.

Applicant cited the case of Arndt v. WCAB (1976) for the proposition that the 240 weeks should be calculated form the date of injury, the date when applicant knew her husband’s death was industrially caused.

The WCJ and WCAB rejected this theory, reasoning that the case at hand was a specific injury, so the compensable consequence, death, relates to the original date of injury, rather than the date on which the applicant became aware of the connection between the death and the original industrial injury from 2011.

This argument, trying to pin the date of injury for a specific injury to the date of knowledge of industrial causation (or the right to file a claim), is one we’ve seen before.

In the panel case of Ostini v. Alma Rosa Winery & Vineyard, applicant also argued that the statute of limitations should not bar her claim because she didn’t know the injury was industrial until a year after it happened. In that case, the panel reversed the WCJ in finding that the “date of knowledge” of industrial causation was irrelevant to a specific injury claim.

Death cases are always sad, but it is important that this result was reached to avoid making the defendant a victim of injustice.

Gregory Grinberg is 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.