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Statute of Limitation for S and W LC 4553 (California)

PostPosted: Sun Jul 05, 2009 12:33 pm
by chumley81
If a case in chief is timely filed and still unresolved, is there a Statute of Limitation on the filing of a S and W against the employer? A civil case by the injured worker was not pursued and the 2 year Statute passed. A recent deposition raised issues of an S and W by removal of safety equipment. If the applicant through his attorney now chooses to file a S and W, is there a potential Statute defense as the injury occurred three years ago?

Re: Statute of Limitation for S and W LC 4553 (California)

PostPosted: Mon Jul 06, 2009 8:11 am
by steve appell
Hi Chumley
The answer is yes because the SOL for an S&W claim is 12 months.

Good Luck!

Re: Statute of Limitation for S and W LC 4553 (California)

PostPosted: Mon Jul 06, 2009 10:32 am
by rosellavera

You may be able to argue the principles of the Equitable Tolling Doctrine.

Equitable tolling requires that three essential elements be satisfied by the party seeking the tolling: “(1) timely notice to the defendant in filing the first claim; (2) lack of prejudice to defendant in gathering evidence to defend against the second claim; and, (3) good faith and reasonable conduct by the plaintiff in filing the second claim. (see Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 923

The requirement of timely notice basically means the first claim must have been filed within the statutory period; the filing of the first claim also must have alerted the defendant in the second claim of the need to begin investigating the facts that form the basis for the second claim. (Collier v. City of Pasadena, supra, at p. 924.) Normally, this means the defendant in the first claim is the same one being sued in the second. (Ibid.) The second prerequisite in essence translates into a requirement that the facts of the two claims be identical or at least so similar that the defendant’s investigation of the first claim will put him in a position to fairly defend the second. (Id. at p. 925.) So long as the defendant is timely placed on notice by the first claim so he can investigate in order to “appropriately defend” the second claim, “… is irrelevant whether those two claims are alternative or parallel, consistent or inconsistent, compatible or incompatible.” (Id. at p. 926.)


Re: Statute of Limitation for S and W LC 4553 (California)

PostPosted: Thu Jul 09, 2009 10:18 am
by steelmanlaw
Can't agree. § 5407 is a statute of limitation, set for policy reasons unrelated to equity. Only if the party to be charged (employer) conceals the basis for the S&W would it be conceivable to raise tolling; even then, it's 12 months from the date applicant was injured per § 5407 and burden should properly be on the injured worker to show why tolling is appropriate. More as to this, the basis for the S&W allegation is almost always obvious when the injury occurs, based on how it occurs. Applicant cannot usually claim concealment, as he was there when the injury occurred, and barring death or amnesia generally knows how and why the injury occurred and thus would have known of the "facts" upon which the S&W could be alleged instantaneously. While ignorance of the law is almost never used to vitiate a S/L, innocent ignorance of the facts can be used to toll where, as stated, there is concealment by employer resulting in applicant blowing the statute. I don't have a cite for this, but would bet on that outcome.

Also, in reference to the Collier case, the first problem is that it was not specifically a S&W S/L situation. Secondly, in argument and as cited in other cases, it rather indiscriminately mixes, and thus confuses, statute of limitations concepts with laches and due process violations. Prejudice to defendant is not a requirement to bar a claim under a S/L. Further, Collier is "inapposite" as it is not a WCAB or Labor Code based litigation.

However, getting back to the procedural facts at hand, there are under certain circumstances supporting tolling of a claim where a claim is filed in another venue or jurisdication, such as filing as plaintiff in superior court for damages for removal of a punch press guard. In that event, the tolling would be of the civil case until the WC proceeding is resolved one way or the other; though, inversely, I do not believe that such would toll the 12 month S/L to file the S&W claim before the Board until a civil proceeding is resolved.

Re: Statute of Limitation for S and W LC 4553 (California)

PostPosted: Thu Jul 09, 2009 10:19 am
by steelmanlaw
jurisdication = jurisdiction