ADJ13397189 — California WCAB decision

What the panel ordered

The Board grants reconsideration, rescinds the WCJ's November 9, 2021 decision, and finds that applicant's claim is not barred by the statute of limitations.

Applicant seeks reconsideration of the November 9, 2021 Findings and Order wherein the workers' compensation administrative law judge found that applicant's workers' compensation claim was barred by the statute of limitations.

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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 limitationsApplicant prevailedback

The Board found that the employer did not provide the applicant with notice of the time limits for filing a claim, and the employer's conduct did not put the applicant on notice that additional steps were required, thus tolling the statute of limitations and allowing the claim to be timely filed.

From the decision · page 1Applicant seeks reconsideration of the November 9, 2021 Findings and Order wherein the workers' compensation administrative law judge found that applicant's workers' compensation claim was 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 5405

The statute of limitations for workers' compensation claims is one year from the date of injury or last benefit provided, per Labor Code section 5405.

The Board applied this standard to determine the timeliness of the claim.

From the decision · page 3"The period within which proceedings may be commenced for the collection of the benefits...is one year from any of the following: "(a) The date of injury. (b) The expiration of any period covered by payment under Article 3 (commencing with Section 4650)... (c) The last date on which any benefits provided for in Article 2 (commencing with Section 4600)...were furnished." (Lab. Code, § 5405.) "If statutes of limitation are subject to conflicting interpretations, one beneficial and the other detrimental to the employee, section 3202 requires that they be construed favorably to the employee. (Colonial Ins. Co. v. Ind. Acc. Com. (1945) 27 Cal.2d 437 [164 P.2d 490].)" (City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal.App.3d 467, 471 [50 Cal.Comp.Cases 53].) The statute of limitations is an affirmative defense, and therefore, the burden of proof rests with defendant. (Lab. Code, § 5409, 5705.)

Labor Code section 5401(a)

Employers must provide claim forms and notice of potential eligibility within one day of receiving notice or knowledge of injury, per Labor Code section 5401(a).

The Board considered whether the employer fulfilled this duty to notify the applicant.

From the decision · page 3"Within one day of receiving notice or knowledge of injury under section 5400 or 5402, which injury results in lost time beyond the employee's work shift at the time of injury or which results in medical treatment beyond first aid, the employer shall provide, personally or by first- class mail, a claim form and a notice of potential eligibility for benefits..." (Lab. Code, § 5401(a), emphasis added.) An employer can receive "notice or knowledge" via service by the injured worker or someone on his/her behalf. (Lab. Code, § 5400.) "Service" includes, "[k]nowledge of an injury, obtained from any source, on the part of an employer...or knowledge of the assertion of a claim of injury sufficient to afford opportunity to the employer to make an investigation into the facts..." (Lab. Code, § 5402(a).) Thus, the duty of notification arises when the employer has "`...actual or constructive knowledge of any work-related injury...'" (CIGA v. Workers' Comp.

Reynolds v. Workmen's Comp. Appeals Bd. (1974) 12 Cal.3d 762

If an employer fails to notify an injured employee of workers' compensation rights, the statute of limitations is tolled until the employee receives actual knowledge, per Reynolds and Martin cases.

The Board applied this tolling principle to the facts of the case.

From the decision · page 4If an employee provides timely notice to his employer of the injury, and the employer fails to provide the employee with the notices required by the Labor Code, the statute of limitations for his claim should be tolled. (See Reynolds v. Workmen's Comp. Appeals Bd. (Reynolds) (1974) 12 Cal.3d 762 [39 Cal.Comp.Cases 768] and Kaiser Found. Hosps. Permanente Medical Group v. Workers' Comp. Appeals Bd. (Martin) (1985) 39 Cal.3d 57 [50 Cal.Comp.Cases 411].) The Supreme Court found in Reynolds that "when an employer fails to perform its statutory duty to notify an injured employee of his workers' compensation rights, and the injured employee is unaware of those rights from the date of injury through the date of the employer's breach, then the statute of limitations will be tolled until the employee receives actual knowledge that he may be entitled to benefits under the workers' compensation system." (Martin, supra, 39 Cal.3d at p. 63 citing to Reynolds, supra.) Thus, "...the remedy for breach of an employer's duty to notify is a tolling of the statute of limitation if the employee, without that tolling, is prejudiced by that breach." (Martin, supra, 39 Cal.3d at 64.) "An employee would be prejudiced without the tolling if he has no knowledge that his injury might be covered by workers' compensation before he receives notice from the employer." (Ibid.)

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's testimony that the employer stopped responding to requests for treatment in 2015.

From the decision · page 2At a third trial session on August 13, 2021, the WCJ framed formal stipulations and issues, admitted exhibits, and received oral testimony. According to the Minutes of Hearing and Summary of Evidence, applicant testified that "[i]n 2015, he was scheduled to see a surgeon for his work comp. case. He did not go because Brian from the employer/insurance carrier said he would get an appointment closer to his home." (August 13, 2021, Minutes of Hearing and Summary of Evidence, (MOH/SOE), p.5.)

Documentary evidencefavours Applicant prevailed

Documentary evidence that the employer planned to close the file in April 2015 due to lack of contact with the applicant.

From the decision · page 2In reviewing the documentary evidence, it appears that the claims adjusters and employer discussed closing applicant's claim in April of 2015 because applicant was no longer in contact with them. (Exh 1, Exh. G, April 13, 2015, E-mail with handwritten notes from Cathy Bugg to Brian Mulligan, Melissa La Russa, and Norman White.) A handwritten note indicates that a closing letter was sent and another note indicates that the file will be closed by the end of the month. (Ibid.)

Documentary evidencefavours Applicant prevailed

Defendant did not present evidence that it provided notice to the applicant of the requirement to file within one year of last benefits.

From the decision · page 5Defendant has not presented evidence that it provided the applicant with notice of the requirement that he file an application within one year of the last provision of benefits. Finally, defendant wrote to applicant and agreed to provide benefits after the application was filed. Defendant's conduct in this case would not put applicant on notice that applicant was required to take additional steps to secure benefits.

ADJ13397189 · January 18, 2022

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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The rules the panel named

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