Your humble blogger brings you the disappointing news of another defeat for the statute of limitations defense.

Gregory Grinberg

In the recent writ-denied case of County of San Bernardino v. WCAB/Tammy Nelson-Watkins, applicant alleged a cumulative trauma psyche claim. Defendant denied the claim on multiple grounds, but one of which is that the claim was barred by statute of limitations.

Applicant sought treatment for depression and anxiety from June of 2013 to December of 2014, relating to her treating physicians that various aspects of work were causing her stress and anxiety. She was taken off work for her diagnosis of depression several times during this period. However, the application was not filed until Nov. 10, 2015.

Applicant was examined by a psyche qualified medical evaluators in May 2016, who found that she did have a psychiatric injury that was predominantly caused by actual events of employment.

At trial, the workers' compensation judge found that the applicant’s date of injury was the date of the psyche QME report, because that was her first knowledge of industrial causation. 

The panel majority concurred with the trial judge, reasoning that even though applicant herself told her doctors she associated work events and activities with her condition, and her treating physicians told her to find another career and that continued work would be detrimental to her psychiatric health, the applicant still did not have knowledge of industrial causation until her psychiatrist told her so.

Unfortunately, the Court of Appeal allowed the decision to stand and denied review.

See, this is a wonderful example of why friends and family members sometimes doubt that workers’ compensation “law” actually exists. Try explaining to someone that an injured worker can allege an injury without a date. “Yeah, I got hurt by work real bad, but I won’t have a date of injury until one of the QMEs confirms the personal belief I’ve had for years that work caused my injury.”

This case presents a scenario where a worker had told psychiatrists for more than a year that work was causing her symptoms; she was told not to return to work because work is making her symptoms worse; she was hospitalized and eventually taken off work, and none of this is enough to conclude that she “knew or should have known” that her condition was caused by work?

Look at the contrary argument: What business does an applicant have filing a CT psyche claim until he or she has retained and paid for an expert who has prepared a report concluding industrial causation? After all, the applicant can’t be charged with knowledge of causation. Isn’t this a frivolous claim to prosecute? Of course, in this case, we’re allowing an applicant to have her proverbial cake and (proverbially) eat it, too.

The underlying current in all this is, of course, that the Workers' Compensation Appeals Board has considerable hostility toward the statute of limitations defense, especially in CT cases. In this particular case, by the time a claim was filed, applicant has not been at work for one and a half years. 

During that time, undoubtedly, witnesses disappeared or became disgruntled; evidence was lost; and the right of medical control and monitoring was denied to a defendant.

Hopefully, whether by act of the Legislature or one of the higher courts, some fresh teeth will be put into Labor Code section 5412. 

In case any of you powerful state senators or California Supreme Court justices are wondering what your humble blogger would like for the Hanukkah, how you know. In the meantime, your humble blogger’s natural fighting instinct says these issues should still be litigated and fought tooth-and-nail.

But, realistically, if the acts of this case were sufficient to defeat the statute of limitations defense, it’s hard to imagine a scenario where the WCAB will not give an applicant a pass, absent sitting on a QME report for over a year.

The only tiny sliver of a silver lining is that there is sufficient binding authority for the contrary argument that defendants can continue to litigate this issue in good faith and hope for some better guidance from the Court of Appeal.

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.