ADJ15198253 · April 18, 2025

The record lacks evidence that applicant knew or should have known the industrial cause of his disability, so the date of injury cannot be established, making the statute of limitations defense unproven.

From the decision · page 6III. Assuming arguendo that defendant provided proper grounds for removal, we note that statute of limitations is an affirmative defense upon which the defendant carries the burden of proof. (Lab. Code, § 5409.) This means defendant must provide evidence which establishes 1) the date of the cumulative injury per statutory and case law, and 2) that applicant filed the claim more than one year after this date. Section 5405(a) states in relevant part that: "[t]he 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." (Lab. Code, § 5405(a).) Section 3208.1(b) defines a cumulative injury as "repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment." (Lab. Code, § 3208.1(b).) Section 3208.1(b) further provides that "[t]he date of a cumulative injury shall be the date determined under Section 5412." (Ibid.) Section 5412 states, in relevant part, that the date of injury for cumulative injury and occupational disease cases is the "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