ADJ19613976 · November 10, 2025

The Appeals Board found that the WCJ erred in barring the claim solely on the statute of limitations without evidence of notice to the applicant and without establishing the date of injury. The Board granted reconsideration and returned the matter for further proceedings to develop the record on these issues.

From the decision · page 1Applicant seeks reconsideration of the "Findings of Fact and Opinion on Decision" (Findings) issued on August 10, 2025, by the workers' compensation administrative law judge (WCJ). The WCJ found, in pertinent part, that applicants' claim of death benefits was barred by Labor Code1 section 5406(b) because applicant failed to file a claim for death benefits within one year from the date of decedent's death.

Applicant did not file the claim for death benefits within one year from the date of death as required by Labor Code section 5406(b).

Favours Defendant prevailed

This was the basis for the WCJ's original Findings barring the claim as untimely.

From the decision · page 1Applicant seeks reconsideration of the "Findings of Fact and Opinion on Decision" (Findings) issued on August 10, 2025, by the workers' compensation administrative law judge (WCJ). The WCJ found, in pertinent part, that applicants' claim of death benefits was barred by Labor Code1 section 5406(b) because applicant failed to file a claim for death benefits within one year from the date of decedent's death.

No evidence that defendant provided the required notice to applicant of the right to file for death benefits.

Favours Applicant prevailed

The Board found that the statute of limitations is tolled until such notice is provided, so lack of notice favors the applicant.

From the decision · page 7Turning to the merits of the case, the WCJ focused the decision upon the fact that applicant did not file the application within one year from the date of death. While section 5406(b) states that "[p]roceedings shall not be commenced more than one year after the date of death", the running of such time period is tolled until defendant provides applicant with the notice required. No such notice is in evidence. Upon return, and if defendant wishes to proceed upon this argument, defendant should produce the notice provided to applicant of her right to file for death benefits.

No medical evidence in the record establishing the date of injury for the death claim.

Favours Applicant prevailed

Without an established date of injury, the Board deferred determination and returned the matter for further proceedings.

From the decision · page 7Next, and to the extent that defendant argues the claim may be untimely based upon the date of injury, no such date has been established in the record. There is simply no medical evidence upon which a determination of section 5412 date of injury can be made. Even defendant's own denial letter stated: "there is no substantial medical, factual or legal evidence to support that the cause of death of the applicant was due to his work related injury." (Defendant's Exhibit A.) We defer any determination as to the date of injury to the trial level so that a record may be created and a date of injury established.

Labor Code sections 5409 and 5705; City of Fresno v. Workers' Comp. Appeals Bd. (1985) 163 Cal.App.3d 467

The burden of proof that a claim is barred by the statute of limitations rests with the defendant.

The Board applied this standard to find that defendant did not meet its burden to establish the statute of limitations bar.

From the decision · page 4II. 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).) Furthermore, decisions of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) An adequate and complete record is necessary to understand the basis for the WCJ's decision. (Lab. Code, § 5313; see also Cal. Code Regs., tit. 8, § 10761.) The running of the statute of limitations is an affirmative defense, and therefore, the burden of proof as to whether an application is barred by the statute of limitations rests with defendant. (§ 5409, 5705; see City of Fresno v. Workers' Comp. Appeals Bd. ("Johnson") (1985) 163 Cal.App.3d 467, 471 [50 Cal.Comp.Cases 53].) The applicable statute of limitations in death cases is section 5406, which states: (a) Except as provided in Section 5406.5, 5406.6, or 5406.7, the period within which may be commenced proceedings for the collection of the benefits provided by Article 4 (commencing with Section 4700) of Chapter 2 of Part 2 is one year from:

Massey v. Workers' Comp. Appeals Bd. (1993) 5 Cal.4th 674; Berkebile v. Workers' Comp. Appeals Bd. (1983) 144 Cal.App.3d 940

For death benefit claims, the date of injury may depend on the claimant's knowledge of the industrial nature of the injury causing death.

The Board noted that the date of injury for death claims depends on claimant's knowledge of the industrial nature of the injury, and no such date was established in the record.

From the decision · page 5Section 5406(b) states that no death claim shall be commenced more than 240 weeks from the "date of injury." (§ 5406(b).) "For purposes of death benefit claims, the date of injury may depend on the claimant's knowledge of the industrial nature of the injury causing death." (Massey v. Workers' Comp. Appeals Bd. (1993) 5 Cal.4th 674, 678, fn. 1 [58 Cal.Comp.Cases 367], emphasis in the original, citing Berkebile v. Workers' Comp. Appeals Bd. (1983) 144 Cal.App.3d 940 [48 Cal.Comp.Cases 438].) The Second District Court of Appeal held in Berkebile that:

No evidence that defendant provided notice to applicant of right to file for death benefits

From the decision · page 7Turning to the merits of the case, the WCJ focused the decision upon the fact that applicant did not file the application within one year from the date of death. While section 5406(b) states that "[p]roceedings shall not be commenced more than one year after the date of death", the running of such time period is tolled until defendant provides applicant with the notice required. No such notice is in evidence. Upon return, and if defendant wishes to proceed upon this argument, defendant should produce the notice provided to applicant of her right to file for death benefits.