Resurrection of a Death Claim
The Hon. William M. Carero Oxnard, California
It’s May 5, 2017. Your client’s daughter arrives to tell you that her father (the decedent) had died two weeks earlier, on April 24th. His workers’ compensation case you filed on June 12, 2012, never produced a settlement or an award. The worker’s daughter and three of his grandchildren depended on the worker for financial support.
The decedent’s claim of cumulative trauma (CT) ending on May 7, 2012, involved multiple internal, psychiatric, and orthopedic injuries from repetitive stress. Before suggesting to his daughter that the death might have been due to work, you divide 1,826 days by 7 to realize that 259 weeks have elapsed from the end of the cumulative trauma to the date of death. That might be a problem for the statute of limitations for a death claim.
Will the daughter be able to seek only accrued indemnity benefits in the inter vivos case? Or is there any other way, in order to pursue the death claim, to count the days? Hopefully, you think it’s worth a try since there is a lot at stake. To figure out the daughter’s rights, you need to know the nuances of the law on how the date of injury could be determined for purposes of the statute of limitations in death claims. This article addresses that topic.