Reynolds Notice

 

Employer estopped if claim form not given;

Reynolds v. WCAB 12 Cal.3d 726, 117 CR 79, 39 CCC 768, 22 CWCR 84

or had knowledge of potential claim.

LC§5402(a), Co. of San Bernardino (Sprague) v. WCAB 60 CCC 221; Co. of Mendocino v. WCAB 67 1619 (wd)

But after claim form is served limitation is tolled until claim is denied or becomes presumptively compensable.

LC§5401(c), R§10142

Statute of Limitations (SOL) tolled if the employee is not given a written, adequate notice of potential eligibility and notice under R§9882 Notice to Injured Employee or it is defective.  The notice must give an explanation of the procedures for claiming compensation, time limits for filing a claim, and methods to resolve disputes, including the employee’s right to consult an Information and Assistance Officer or an attorney.

R§9812(i), 9882(b); Reynolds v. WCAB 39 CCC 768, Viking Freight Sys v. WCAB 62 CCC 123, SCIF v. WCAB 61 CCC 1228; Johnson v. WCAB 25 CWCR 176; McAfee v. WCAB 25 CWCR 335 (n); Galloway v. WCAB 63 CCC 532, 26 CWCR 129; Hampton v. WCAB 66 CCC 1209 (np); American Home Assurance Co. v. WCAB (Morones) 67 CCC 822 (wd)

In a case involving a burn injury at a dry cleaning employer filed six years after the date of injury, the CA found the claim timely because the injured worker was given no notice re: claim filing.  Consulting with an attorney who said the injured worker had no case was found to be irrelevant.  The CA relied upon Reynolds (1974) 39 CCC 768 and Galloway (1998) 63 CCC 532.  There was no evidence that the injured worker knew that he might be entitled to worker’s compensation benefits.

Davenport v. WCAB (2005) 33 CWCR 270 (CA 3rd-non-pub)

 

Estoppel: If the claim is denied the employee must be informed of the one-year statute of limitations to file the application for adjudication.

San Joaquin Community Hospital v. WCAB 67 CCC 1653

Even if Reynolds notice is not given the statute runs if employee had knowledge that the injury is work related or had an attorney for other workers’ compensation cases.

LC§5405; Cooke v. WCAB 68 CCC 1703 (wd); Morris v. WCAB 69 CCC 819 (wd)

If TD paid or treatment provided limitation period becomes 5 years. (petition to reopen)

LC§5410, Doherty v. WCAB 61 CCC 900; Kohagen v. WCAB (1997) 62 CCC 1492, 25 CWCR 334 (n) (even if treatment paid more than 1 year after DOI and carrier could have denied.)

Where the employer’s voluntary acts such as the furnishing of benefits do not mislead an injured worker who is fully aware of his workers’ compensation rights, the SOL is not tolled by the failure to provide the required notices.

Kaiser Foundation Hosp v. WCAB 42 CCC 302

The SOL is an affirmative defense and the burden of showing the necessary notices have been given is on the employer. Employer should put notices and proof of service in evidence.

LC§5409; 5705; Balcom v. WCAB 50 CCC 2; Colonial Ins. Co. v. IAC (Nickles) 10 CCC 321; 27 Cal.2d 437

SOL DN bar claim filed 18 years after date of injury b/c def could not rebut testimony that applicant did not receive notice of rights per Reynolds.

City of   Lompoc v. WCAB (Medina) (2007) 72 CCC 241 (CA 1st wd)

Following Reynolds (1974) 39 CCC 768, SOL does not bar claim filed 6 years after date of injury b/c lack of notice of rights tolled SOL and insufficient proof app knew of his rights.

CIGA v. WCAB (Carls) (2008) 36 CWCR 136   (CA 2d pub)