Effect on Statute of Limitations
From Navigating COVID-19
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Another adverse consequence of an employer deciding not to provide a claim form is that the statute of limitations for filing the claim probably would be tolled. That is, if a claim form is not given to an employee, he or she probably will be able to file a claim in the future, regardless of statutes of limitations. That's because it is very difficult under workers' compensation law for an employee with a work-related disease to be held to know that the disease is work related, or to know his or her rights if it is. As such, the employee has no obligation to file the claim until this awareness can be imputed. So an employer might decide not to provide a claim form for fear that it will be filled out and returned. But that employer might well be vulnerable to a claim being filed indefinitely.
Pursuant to Labor Code § 5405, unless indemnity or medical treatment benefits are provided, workers' compensation proceedings must be commenced within one year from the date of injury. Employees, however, could argue that they are not subject to the statute of limitations either because: (1) they didn't know of their workers' compensation rights (see "Sullivan on Comp" Section 6.17 Estoppel Based on Failure to Provide Notice); or (2) they didn't know their condition was related to the employment (see "Sullivan on Comp" Section 6.14 One Year from Date of Injury).
In Reynolds v. Workmen's Comp. Appeals Bd., the Supreme Court held that an employer's failure to provide an employee with notice of workers' compensation rights estopped it from raising the statute of limitations as a defense. In that case, an employee had a heart attack at work and was off work for a year. Nearly three years after his heart attack, a relative told him that he might have a workers' compensation claim, and after consulting an attorney, he filed a claim.
The Supreme Court held that the employee's claim was not barred by the statute of limitations. It explained that the purpose of the rules requiring an employer to provide notice were "to protect and preserve the rights of an injured employee who may be ignorant of the procedures or, indeed, the very existence of the workmen's compensation law. Since the employer is generally in a better position to be aware of the employee's rights, it is proper that he should be charged with the responsibility of notifying the employee, under circumstances such as those existing here, that there is a possibility he may have a claim for workmen's compensation benefits."
Subsequently, in Kaiser Found. Hosps. Permanente Medical Group v. Workers' Comp. Appeals Bd. (Martin), the Supreme Court clarified that the remedy for breach of an employer's duty to notify is a tolling of the statute of limitations if the employee, without that tolling, is prejudiced by that breach. It stated, "An employee would be prejudiced without the tolling if he has no knowledge that his injury might be covered by workers' compensation before he receives notice from the employer."
But just as the knowledge standard is high for an employer's duty to provide a claim form, so too is proving the employee's knowledge of workers' compensation rights. The Court of Appeal has held that an employer must prove that an employee has "actual knowledge" of his or her right in order to end the tolling of the statute of limitations. It even held that the retention of an attorney alone was not sufficient to establish that an employee had knowledge, because that would amount only to constructive knowledge. It further explained that "ignorance is presumed until the employee is given the requisite notice or otherwise gains actual knowledge that he may be entitled to workers' compensation."
Note, however, that if the employer did not have knowledge of an injury sufficient to trigger its duty to provide a claim form, the statute of limitations still would apply. That's because an employer is not estopped from asserting the statute of limitations if there is no evidence that the employer had knowledge or notice of facts from which it could or should have recognized that the applicant was injured on the job or that his or her condition might have arisen out of the employment. But unlike specific injuries, it will be far easier for employees to avoid application of the statute of limitations because the coronavirus is a disease.
An employee with COVID-19 can avoid application of the statute of limitations by testifying that he or she was unaware that the disease was caused by the employment. LC 5405 allows a claim to be filed within one year of the date of injury, and that date for an occupational disease pursuant to § 5412 is the "date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment." Given the difficulty in determining precisely how COVID-19 was contracted, if an employer can assert that it was unaware that the employee's disease was related to the employment, the employee almost certainly can make the same claim.
Accordingly, if an employer does not provide an employee with a claim form following a diagnosis of COVID-19, it will be very difficult for the employer to assert that a claim is barred by the statute of limitations. The employer might be required to establish that the employee had both actual knowledge of workers' compensation rights more than one year before a claim was filed, and knowledge that his or her disability was caused by the employment for the purposes of § 5412. If an employee simply testifies that he or she did not know of the right to workers' compensation or that the COVID-19 diagnosis was related to the employment until shortly before filing a claim, it is highly likely that the claim will not be barred by the statute of limitations.
So, failure to provide an employee with a claim form doesn't necessarily protect an employer from a workers' compensation claim. It just gives the employee more time to file one. As in Reynolds, an employee potentially could file a workers' compensation claim years after the original hospitalization if he or she was not provided with a claim form.
Of course, the vast majority of working-age people who contract the coronavirus will recover fully. Such employees probably will not have much of an incentive to pursue a workers' compensation claim years after the fact. A significant percentage, however, will require medical care and even hospitalization. In the worst cases, COVID-19 results in permanent impairment, or death. Without providing stricken employees or their dependents with a claim form, the statute of limitations could be tolled indefinitely.
- The Basic Rule — Increased Risk and the General Public
- Provision of Benefits and Investigation Without a Claim Form
- (1974) 12 Cal. 3d 726.
- Reynolds v. Workmen's Comp. Appeals Bd. (1974) 12 Cal. 3d 726, 727-728.
- Reynolds v. Workmen's Comp. Appeals Bd. (1974) 12 Cal. 3d 726, 729.
- (1985) 39 Cal. 3d 57.
- Kaiser Found. Hosps. v. Workers' Comp. Appeals Bd. (Martin) (1985) 39 Cal. 3d 57, 64.
- California Ins. Guarantee Assn. v. Workers' Comp. Appeals Bd. (Carls) (2008) 163 Cal. App. 4th 853.
- California Ins. Guarantee Assn. v. Workers' Comp. Appeals Bd. (Carls) (2008) 163 Cal. App. 4th 853, 860.
- Nielsen v. Workers' Comp. Appeals Bd. (1985) 164 Cal. App. 3d 918, 935.
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