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Knowing the statute of limitations can protect your workers compensation benefits

I have had the good fortune to represent a lot of really nice people over the years – thoughtful, hardworking individuals that find themselves in a bad patch in life. Charlie Brown is one of those folks and a favorite client of mine. Years ago, he had a horrible arm injury that put him out of the work force. He was a glass glazer; that was all he had done all his adult life and his right arm was completely blown up. He has given me permission to tell his cautionary tale so you or someone you know doesn’t make the same mistakes.

His injury was clearly industrial in nature. But he did all the wrong things to preserve his claim. He failed to file a DWC-1 form (first report of industrial injury) with his employer. Years went by and the carrier predictably denied his claim. The medical evidence was so old and vague that the conservative med-legal doctor felt the condition was nonindustrial.

There were statute of limitations issues (failing to file a claim timely) with the Workers’ Compensation Appeals Board (WCAB). He waited dangerously long to develop a Social Security Disability claim. Someone needed to find a solution for Charlie or he was going to be out in the street. Paralegal Christina Miller and I specialize in cases like this. If you know what you’re doing, you can use the evidence cultivated in a workers’ compensation claim to win a much larger benefit for your client with the Social Security Administration. These cases are the 800 lb. gorilla in a disability action that sometimes get overlooked and left undeveloped.

Predictably, we got hammered on Charlie’s workers’ compensation case. We knew that going in; it was not a surprise. But now we had a good banker’s box of powerful, probative medical evidence to play with, more than enough to prove up a much larger benefit on a federal level. For Charlie, it was a real bacon saver.

Beware of the statute. It would have been much better if he had a more viable workers’ compensation claim to fall back on. Here is what you need to understand when you have been injured on the job. You must a DWC-1 with your employer immediately or at least within thirty days after your injury. Many employers are completely spastic about claims, as it makes their insurance policies cost more. Some really discourage filing comp. claims. Don’t be intimidated. This happened to Charlie. By the time he got to us we officially had a cold case on our hands. The DWC-1 does a lot of magic things; it puts everyone on notice that you were injured on the job and really helps with avoiding confusion down the road.

In addition to filing a DWC-1, you must timely file an application with the WCAB. Not filing a DWC-1 will not prevent you from bringing a claim with the WCAB. However, you will have to rely on constructive notice to your employer of your injury, cross your fingers and boldly go forth with your application. Generally, this must be done within one year: 1) of the date of your injury, 2) the date your employer denied your case, or 3) if benefits have been provided by your employer (medical treatment, temporary disability, permanent disability etc.), within one year of the date of last provision of these benefits or, within five years of the date of your injury if you can demonstrate new and further disability. The statute of limitations is a disfavored defense; judges don’t like it, and many exceptions apply. Any applicant’s attorney worth her salt can usually find a way around the statute problem, but filing promptly avoids that uncertainty. Also, please consider that there can be other cases that can be present in a compensation claim, such as the negligence of a third party causing your on-the-job injury, discrimination cases and serious and willful claims against your employer. There is a raft of other remedies out there sometimes and they all have statutes of limitations. If you blow them, you are in serious trouble.

It was quite a moment at Charlie’s hearing when the Administrative Law judge said, “Mr. Brown, you are the poster child for the social safety net this country has” and awarded him an on-the-record, favorable decision. Charlie had been without money for over a year. In the hallway, he gave me a big old bear hug, and I felt little droplets raining down on my shoulder. I knew how important this was to him--shucks, I got a little misty eyed, too. It was one of those rare and fleeting moments in a lawyer’s life when you understand you made the right career choice. As to Charlie, he has a modest income coming in and has qualified for Medicare benefits under the Social Security system. We got him a little settlement on his comp. claim, but that is the way it goes sometimes.

As always, Paralegal Miller had taken the evidence we had developed through his workers’ compensation claim, organized it, uploaded it to ODAR and prepared a superb case-winning brief. All Charlie and I needed to do was to show up and start talking. It was a great day! 

Thomas Ledgerwood
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Proprietor Ledgerwood Law Group