Statute of Limitations for Death Claim Resulting From Cumulative Trauma Injury

The statute of limitations for pursuing death benefits is established in LC 5406. Except for LC 5406.5 and LC 5406.6 (which cover deaths from asbestos and HIV-related disease), proceedings for the collection of death benefits, per LC 5406(a), may be commenced one year from:

1. the date of death when it occurs within one year from date of injury;

2. the date of last furnishing of any compensation benefits, when death occurs more than one year from the date of injury; or

3. the date of death, when death occurs more than one year after the date of injury and compensation benefits have been furnished.

LC 5406(b) adds, "Proceedings shall not be commenced more than one year after the date of death, nor more than 240 weeks from the date of injury." That language has been interpreted to mean that no proceedings for death benefits may be commenced more than one year after the date of death, and that no such proceedings may be commenced more than 240 weeks from the date of injury. (Ruiz v. IAC (1955) 20 CCC 265, 266.)

When an employee sustains a specific injury, the date of injury generally is not disputed. The date of a specific injury is established in LC 5411 as the "date during the employment on which occurred the alleged incident or exposure, for the consequences of which compensation is claimed."

But when an employee sustains a cumulative trauma (CT) injury, the date of injury is not so clear. Per LC 5412, the date of injury in cases of occupational disease or cumulative injuries "is that 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."

In death cases, the issue is even more complicated because it has been held pursuant to LC 5406 that the date of injury is based on a dependent's knowledge, not the decedent-employee's knowledge. In Berkebile v. WCAB (1983) 48 CCC 438, the Court of Appeal held that a widow's application for death benefits filed in 1980 was not barred by the statute of limitations, even though the decedent-employee hadn't worked for the employer since 1942. The court explained that "a determination as to the decedent's knowledge of the industrial origin of his disability is not dispositive of the statute of limitations issue. The date of the applicant's knowledge of the industrial nature of the decedent's condition is the pertinent 'date of injury' for purposes of the death claim."

Following Berkebile, however, in Massey v. WCAB (1993) 58 CCC 367, the California Supreme Court held that "no claim can ever accrue to an adult dependent for benefits from an industrially caused death that occurs more than 240 weeks after the date of injury." In that case, an employee sustained a CT injury resulting in a heart attack in 1979, and he died of heart surgery in 1987. In a footnote, the Supreme Court noted that under Berkebile, the date of injury may depend on the claimant's knowledge of the industrial nature of the injury causing death. Massey did not discuss when the dependents acquired knowledge of industrial causation, but held that when a worker dies more than 240 weeks from the date of injury, a minor could not bring a claim for death benefits even if it was filed fewer than 240 weeks after the minor turned 18 and less than one year after the employee's death.

So the WCAB has struggled with how to apply the statute of limitations in death claims arising from cumulative trauma injuries. In some cases, the WCAB held that when the date of injury for an employee's claim was established inter vivos, the date a dependent acquired knowledge that the employee's claim was industrial did not establish a new date of injury. (See Earley v. WCAB (2003) 68 CCC 1707 (writ denied); Thompson v. WCAB (2015) 80 CCC 207 (writ denied). In other cases, however, the WCAB held that the date of injury under LC 5406 should be based on the dependent's knowledge. (See General Telephone v. WCAB (McCasland) (1997) 62 CCC 513 (writ denied); State of California/Department of Corrections v. WCAB (Underwood) (2006) 72 CCC 162 (writ denied).)

Recently, in Gonzales v. City of Montebello, 2022 Cal. Wrk. Comp. P.D. LEXIS 38, the WCAB issued what is probably its current position, and it favors dependents. In that case, the decedent sustained a cumulative trauma injury ending in 1996, and he received an award of benefits. The employee died from a heart attack in 2015 related to his industrial injury, and the dependent filed an application for death benefits within one year of the date of death and the last benefit payment. The WCAB rescinded a decision that the claim was barred by the statute of limitations.

The WCAB explained that it's well settled that a death claim is different and distinct from an injured worker's disability claim. It explained that although LC 5406(b) states that death proceedings "shall not be commenced more than one year after the date of death, nor more than 240 weeks from the date of injury," pursuant to Berkebile, the dependent's knowledge of the industrial nature of the decedent's condition was the pertinent date of injury for the purposes of a death claim. It stated that the contrary panel decisions are not binding precedent and that Berkebile provides the proper analysis of the issue. Moreover, it explained that most recent panel decisions addressing the issue applied the analysis offered in Berkebile. The WCAB returned the matter to the trial level for further proceedings.

So, Gonzalez probably establishes the WCAB's current position on the issue; that is, the date of injury for the purposes of the statute of limitations under LC 5406 will be based on the dependent's knowledge, regardless of whether the date of injury was established in an inter vivos claim. But the courts still must resolve some issues. Specifically, must an employer establish that the dependent knew the death was industrial, or is it enough to establish that the dependent knew the employee's condition resulting in death was industrial?

Berkebile stated, "The date of the applicant's knowledge of the industrial nature of the decedent's condition is the pertinent 'date of injury' for purposes of the death claim." So even under Berkebile, the date of injury is based on the dependent's knowledge of the industrial nature of the decedent's condition. Moreover, in Gonzales, it was undisputed that the dependent filed the claim within one year of the employee's death. If the WCAB wanted to find that the claim was not barred because it was filed within a year of death, it easily could have done so. Instead, it remanded for the WCJ to determine the date of injury. So it seems the date of injury for a death claim is not triggered by the date the dependent knew the death was related to an industrial condition, but by the date the dependent knew of the industrial nature of the decedent's condition that caused the death.

Although Gonzales will make it easier for dependents to seek death benefits many years after an employee stopped working for an employer, there's no guarantee that such claims will be successful. Employers, however, must affirmatively establish the date dependents obtained knowledge of the industrial nature of the decedent's condition in order to bar a claim.

For further discussion of this topic, see Section 6.48 Statute of Limitations for Death Benefit.