132a statute tolled during incarceration? (California)

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132a statute tolled during incarceration? (California)

Postby speropotus@yahoo.com on Thu Mar 26, 2009 8:43 am

I have a new client who was injured in November 2004. He submitted a claim form and was terminated two days later. I suspect there is a relationship between the firing and the claim. Client was incarcerated three weeks after the injury for 3 1/2 years from 12/04 through 4/08.

Issue: Is the time limit for filing a 132a claim tolled while the applicant is incarcerated?
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Re: 132a statute tolled during incarceration? (California)

Postby jakelast@aol.com on Thu Mar 26, 2009 11:44 pm

I am unaware of any provision for tolling any time to act based on incarceration.

Besides, such a contest frequently comes down to who is more believable and your client is operating at a severe handicap.

If he was jailed 3 weeks after the injury it is likely the legal action was pending at the time he was fired. He may have failed to mention to you the employer terminated him for whatever conduct caused him to go to jail.

This one is a loser both on the law and probably the facts.
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Re: 132a statute tolled during incarceration? (California)

Postby speropotus@yahoo.com on Fri Mar 27, 2009 6:56 am

Sounds like you represent the defense of the case, Jake. ;)

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Re: 132a statute tolled during incarceration? (California)

Postby vampireinthenight on Fri Mar 27, 2009 7:58 am

I do not know of any such tolling. Things can be filed from prison. Defendant will likely claim they are prejudiced by the delay.
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Re: 132a statute tolled during incarceration? (California)

Postby jakelast@aol.com on Sat Mar 28, 2009 8:55 am

Dpowell:

Of course I am a defense attorney but had done the other side. This case just sounds like there are too many issues for an AA to seriously consider on a legal or factual basis. I have to admit that as an AA I would have had a fairly high index of suspicion where a injured worker tells me he was terminated 2 days after reporting an injury and then 3 weeks later started a 3 1/2 year jail term.

Somehow sounds more than coincidental.

Besides the SOL is a dead bang looser for applicant in this one.
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Re: 132a statute tolled during incarceration? (California)

Postby steelmanlaw on Fri Apr 10, 2009 11:34 am

and besides, even if there were tolling, laches prejudicing the employer would probably dispose of the claim as was pointed out by another commentor. in our community, we have to seek a balance. as Jake pointed out, he understands the applicant perspective as well. sometimes we forget that the WC system was designed not only to administer to the needs of an injured worker, but also to the employer's need for financial stability. hence, "balance", the word of the day.
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