ADJ13190030 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; final decision after reconsideration deferred pending further review of merits and entire record.

Applicant seeks reconsideration of the November 29, 2023 Findings of Fact, Award, Order where the WCJ found the claim barred by the statute of limitations; the WCJ also found injury arising out of employment to the right eye on June 3, 2017.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Statute of limitationsRemandedright eye

The WCJ found the claim barred by the statute of limitations, but the WCAB panel granted reconsideration to further review the merits and the entire record in light of applicable law.

From the decision · page 1Applicant seeks reconsideration of the November 29, 2023 Findings of Fact, Awar, Order wherein the workers' compensation administrative law judge (WCJ) found that applicant, while employed as a custodian on June 3, 2017, sustained injury arising out of and occurring in the course of employment (AOE/COE) to the right eye. The WCJ further found that the claim is barred by the statute of limitations.

The facts that decided it

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 5502(e)(3)

An issue not raised at the first opportunity is waived.

Defendant accepted injury in July 2020 Answer and engaged in QME process; failure to timely raise statute of limitations defense results in waiver.

From the decision · page 2I. We highlight the following legal principles that may be relevant to our review of this matter: In this case, it appears defendant accepted injury to the eye in its July 21, 2020 Answer and engaged in the panel qualified medical examination process. An issue that is not raised at the first opportunity at which it may properly be raised is waived. (Lab. Code, § 5502(e)(3), see also Gould v. Workers' Comp. Appeals Bd. (1992) 4 Cal.App.4th 1059 [57 Cal.Comp.Cases 157], Griffith v. Workers' Comp. Appeals Bd. (1989) 209 Cal.App.3d 1260 [54 Cal.Comp.Cases 145].) Decisions of the Appeals Board "must be based on admitted evidence in the record." (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc).) An adequate and complete record is necessary to understand the basis for the WCJ's decision. (Lab. Code, § 5313.) "It is the responsibility of the parties and the WCJ to ensure that the record is complete when a case is submitted for decision on the record. At a minimum, the record must contain, in properly organized form, the issues submitted for decision, the admissions and stipulations of the parties, and admitted evidence." (Hamilton, supra, 66 Cal.Comp.Cases at p.

Labor Code section 5901

No cause of action accrues until the Appeals Board sets aside the final order or grants reconsideration.

Petition for Reconsideration granted, so no final decision on merits yet; final decision deferred pending further review.

From the decision · page 4Labor Code section 5901 states in relevant part that: No cause of action arising out of any final order, decision or award made and filed by the appeals board or a workers' compensation judge shall accrue in any court to any person until and unless the appeals board on its own motion sets aside the final order, decision, or award and removes the proceeding to itself or if the person files a petition for reconsideration, and the reconsideration is granted or denied.... Thus, this is not a final decision on the merits of the Petition for Reconsideration, and we will order that issuance of the final decision after reconsideration is deferred. Once a final decision is issued by the Appeals Board, any aggrieved person may timely seek a writ of review pursuant to Labor Code sections 5950 et seq.

ADJ13190030 · February 5, 2024

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