The California Second District Court of Appeal recently rendered Fisher v. Channing, Case - B292689 (Cal. App. 2d 2019). The relationship is only tangential to workers' compensation, but the tale is educational on the topic of timeliness.
The case dates back over forty years to 1978. James Earl Carter was serving as the 39th President of the United States. That year, Mr. Fischer "sustained a serious work-related injury." Six years later, "in 1984" (during President Reagan's first term) the case was settled "for $67,000," from which Fisher was paid $4,000. He says he asked his attorney, Mr. Channing, "to hold the rest of it in trust." Mr. Channing disputed that allegation, contending that he disbursed to Fisher all of the proceeds to which he was entitled.
In 1991, During George H.W. Bush's term as President, Fisher was sent to prison. He requested that his attorney "transfer the balance of the workers’ compensation settlement proceeds to Fisher’s commissary account at the prison." He says that between "1991 and 1993 (he) wrote Channing 'a lot' of letters" about the funds. Attorney Channing "never responded." During that time, Fisher claimed he called Mr. Channing but found the number disconnected. He also tried to contact another lawyer who had represented him, in hopes that a second lawyer would help him recover the money from Fischer.
In April 2016, Mr. "Fisher was paroled from prison," and visited Mr. Channing's office only to find it vacated. In June 2017, about 33 years after the case was settled, he filed a lawsuit against Mr. Channing to recover the remaining funds alleging "conversion, professional negligence, and breach of fiduciary duty." Mr. Channing answered the complaint claiming the statute of limitations and "laches," as well as asserting that all the funds were disbursed in 1984.
The court dismissed Fisher's lawsuit concluding that the statute of limitations had in fact expired. The appellate court explained that each of the allegations ("conversion, professional negligence, and breach of fiduciary duty.") has a statute of limitations. It explained when the statute began to be measured, and in this instance therefore when each expired.
The court cited an admonition from a previous case, Genisman v. Carley (2018) 29 Cal.App.5th 45, 50: “Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.”
The court explained that Fisher's actions in the 1990s demonstrated he believed that Mr. Channing owed him money and that his actions demonstrated his intention to reclaim that money. Thus, "no later than 1993" Fisher knew or should have known that Mr. Channing was not inclined to respond or to pay him the money.
Thus, the court concluded that the statute of limitations barred Fisher's claims. As a result, the Court affirmed the dismissal of his lawsuit and ordered Fisher to pay Mr. Channing the costs related to the appeal of the dismissal.
In Florida workers' compensation, the statute of limitations is in some ways crystal clear, but in others subject to some confusion. The provisions are found in section 440.19, Fla. Stat.
"(1) Except to the extent provided elsewhere in this section, all employee petitions for benefits under this chapter shall be barred unless the employee, or the employee’s estate if the employee is deceased, has advised the employer of the injury or death pursuant to s. 440.185(1) and the petition is filed within 2 years after the date on which the employee knew or should have known that the injury or death arose out of work performed in the course and scope of employment."
Thus, the statute in Florida is one of "limitation." For more on the distinction between limitation and "repose," see Stare Decisis, Goodgame, Livingood, and Westphal. The limitation runs from the date on which the "employee knew or should have known" of the relationship between the work and the injury. However, the statute might be extended repeatedly under the Florida Statute, which also provides:
"(2) Payment of any indemnity benefit or the furnishing of remedial treatment, care, or attendance pursuant to either a notice of injury or a petition for benefits shall toll the limitations period set forth above for 1 year from the date of such payment. This tolling period does not apply to the issues of compensability, date of maximum medical improvement, or permanent impairment."
Thus, during the period of delivery of either lost earning benefits or remedial medical treatment the statute as to many issues is "tolled" or suspended. The statute of limitations would extend for a year after such care or payment.
There are other exceptions in the statute when a "person entitled to compensation" is "mentally incompetent or a minor," and has no guardian. Section 440.19(5), Fla. Stat. There is also an extension of the time for filing of the workers' compensation petition when a worker first seeks payment of damages in some other legal or admiralty proceeding, which is dismissed upon the claiming of workers' compensation exclusive remedy. Section 440.19(6), Fla. Stat.
Finally, there is a "waiver" provision in the Florida law. The statute of limitation is waived "unless the carrier advances the defense of a statute of limitations in its initial response to the petition for benefits." This is not the "initial response" to an assertion of entitlement to benefits, but to a "petition" specifically. This was recently clarified in Schiano v. City of Hollywood, No. 1D18-1791.
Statutes of Limitations are specific to the various states. A recent Louisiana decision in Knight v. Imperial Trading, 19-CA-41, illustrates this. The employee there alleged an accident on April 26, 2017, which she reported to an emergency room. Though she was instructed to follow up, she did not. Months later, she presented at a physician's office, a diagnosis was made, and care was prescribed. Then, on "May 30, 2018, more than one year after her alleged April 26, 2017, work-related accident" she filed a claim to seek benefits.
The trial judge there granted the employer's objection to the claim (asserting "prescription" meaning the time allowed to file had expired) and dismissed it. The Court explained that in Louisiana "claims for workers’ compensation benefits must be filed within (1) one year from the date of the accident." There is also an exception when "the injury does not result at the time of or immediately after the accident," in which case the "one year" begins to run when the "delayed development of disability" occurs, but that may not be more than three years after the accident. This illustrates how state laws can differ.
Another illustration was recently featured in a story on WorkCompCentral that described a claim for "U.S. workers' compensation benefits" under the 1941 Defense Base Act. There, "three members of a Danish cleanup crew" are seeking compensation for cancers. They were allegedly engaged in clearing the site where a B-52 bomber crashed near Thule, Greenland, in 1968. While the article quotes some opining that the claims are "a long shot," they are nonetheless being considered.
Some lessons are reasonably straightforward. First, the statute of limitations or "prescription" may be different from jurisdiction to jurisdiction. Second, while there is a tendency to think of workers' compensation as a state matter, there are federal programs that similarly provide benefits. Third, it is important that people pursue their rights. Seeking to prove something in 2016, that may have occurred in 1984 may prove very difficult as it did for Mr. Fischer. Similarly, proving the causation by activities in 1968 may prove challenging. When one cannot remember specifically who was president at that particular time, it may signal that memories have faded?
That it is challenging does not mean that something necessarily cannot be considered after decades, but it means that may well be a difficult proposition. After a time, memory fades. Locating and authenticating records, financial or medical, may be increasingly difficult as years pass. Those challenges may be more significant after the passage of decades. These cases are reminders that statutes of limitation may preclude the pursuit of claims, of the implications of delay.
