What the panel ordered
Petition for reconsideration granted. The 2005 injury claim (ADJ13290788) is not barred by the statute of limitations or laches; the 2007 injury claim (ADJ13290786) is barred by the statute of limitations.
Defendant sought reconsideration of the WCJ's Joint Findings and Award of January 24, 2022, which found applicant's claims for injuries in 2005 and 2007 were not barred by the statute of limitations or laches.
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.
Applicant reported the injury, was provided a DWC-1 form, and filed it. Defendant did not provide the required subsequent notice under Administrative Rule 9812. The statute of limitations was tolled, and laches did not apply.
From the decision · page 51. Applicant reported a January 5, 2005 injury to the employer. Applicant was provided a DWC-1 form and subsequently filed the DWC-1 form. There is no evidence that applicant was provided with notice of his workers' compensation rights then required by Administrative Rule 9812.
Applicant's testimony that he reported the injury was not credible. Employer had no notice and thus no obligation to provide a claim form or notice. The statute of limitations was not tolled and the claim is barred.
From the decision · page 53. Applicant's testimony that he reported a January 1, 2007 injury to the employer is not credible. During the March 9, 2021 trial, applicant testified that he did not report the January 1, 2007 injury. During the November 9, 2021 trial, applicant initially testified that he reported the January 1, 2007 injury but subsequently admitted that he was confused about whether he reported any injury in 2007.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant reported the January 5, 2005 injury, was provided a DWC-1 form, and filed it. Defendant did not provide the required subsequent notice under Administrative Rule 9812.
Favours Applicant prevailed
Failure to provide required notice tolled the statute of limitations for the 2005 injury claim.
From the decision · page 51. Applicant reported a January 5, 2005 injury to the employer. Applicant was provided a DWC-1 form and subsequently filed the DWC-1 form. There is no evidence that applicant was provided with notice of his workers' compensation rights then required by Administrative Rule 9812.
Applicant's testimony regarding reporting the January 1, 2007 injury was inconsistent and not credible. Employer had no notice of the injury.
Favours Defendant prevailed
Without employer notice, no duty to provide claim form or notice arose, so the statute of limitations was not tolled for the 2007 injury claim.
From the decision · page 53. Applicant's testimony that he reported a January 1, 2007 injury to the employer is not credible. During the March 9, 2021 trial, applicant testified that he did not report the January 1, 2007 injury. During the November 9, 2021 trial, applicant initially testified that he reported the January 1, 2007 injury but subsequently admitted that he was confused about whether he reported any injury in 2007.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, § 5409; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Martin) (1985) 39 Cal.3d 57, 67, fn. 8 [50 Cal.Comp.Cases 411]
The running of the statute of limitations is an affirmative defense, and the burden of proving it is on the party opposing the claim.
Defendant must show when the statute of limitations began to run.
From the decision · page 1The running of the statute of limitations is an affirmative defense, and the burden of proving it is on the party opposing the claim. (Lab. Code, § 5409; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Martin) (1985) 39 Cal.3d 57, 67, fn. 8 [50 Cal.Comp.Cases 411].) The burden is on defendant to show when the statute of limitations began to run, "starting from any and all three points designated [in Labor Code section 5405]." (Colonial Ins. Co. v. Industrial Acc. Com. (Nickles) (1945) 27 Cal.2d 437, 441 [10 Cal.Comp.Cases 321].) The three points designated in
Lab. Code, § 5401(a); Martin, supra, 39 Cal.3d at p. 60.
The statute is tolled by an employer's failure to notify an injured employee of a potential right to benefits, as required by Labor Code section 5401(a).
Applicant must show employer had sufficient notice to trigger duty to provide claim form and notice.
From the decision · page 2"[A]s a general rule, where a claimant asserts exemptions, exceptions, or other matters which will avoid the statute of limitations, the burden is on the claimant to produce evidence sufficient to prove such avoidance." (Permanente Medical Group v. Workers' Comp. Appeals Bd. (Williams) (1985) 171 Cal.App.3d 1171, 1184 [50 Cal.Comp.Cases 491].) One such exemption or exception is that the statute is tolled by an employer's failure to notify an injured employee of a potential right to benefits, as required by Labor Code section 5401(a). (Martin, supra, 39 Cal.3d at p. 60.)
Administrative Rule 9812(g)(3) (former)
If the claims administrator alleges that the injury has caused no permanent disability, the claims administrator shall advise the employee that no permanent disability indemnity is payable. This notice shall be sent together with the last payment of temporary disability or within 14 days after the claims administrator determines that the injury has caused no permanent disability.
Defendant failed to provide this notice for the 2005 injury, tolling the statute of limitations.
From the decision · page 3If the claims administrator alleges that the injury has caused no permanent disability, the claims administrator shall advise the employee that no permanent disability indemnity is payable. This notice shall be sent together with the last payment of temporary disability or within 14 days after the claims administrator determines that the injury has caused no permanent disability. The notice shall include the employee's remedies and:
What proof carried it
The evidence the panel weighed, by kind.
Defendant failed to provide evidence that applicant was given required notice under Administrative Rule 9812 for the 2005 injury.
From the decision · page 51. Applicant reported a January 5, 2005 injury to the employer. Applicant was provided a DWC-1 form and subsequently filed the DWC-1 form. There is no evidence that applicant was provided with notice of his workers' compensation rights then required by Administrative Rule 9812.
Applicant's testimony regarding reporting the 2007 injury was inconsistent and not credible, affecting the finding that the employer had no notice of the injury.
From the decision · page 53. Applicant's testimony that he reported a January 1, 2007 injury to the employer is not credible. During the March 9, 2021 trial, applicant testified that he did not report the January 1, 2007 injury. During the November 9, 2021 trial, applicant initially testified that he reported the January 1, 2007 injury but subsequently admitted that he was confused about whether he reported any injury in 2007.
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