ADJ10767201 — California WCAB decision

What the panel ordered

Affirmed the July 15, 2019 Findings and Award that applicant sustained industrial injury and was entitled to further medical treatment

Petition for Reconsideration granted to review legal and factual issues; decision after reconsideration issued affirming prior Findings and Award

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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 prevailedneck · head

The statute of limitations was tolled because defendant breached its duty to notify applicant of workers' compensation rights, and applicant was prejudiced by the breach as he was unaware of his rights until later.

From the decision · page 3Defendant contends that applicant's claim was barred by the one year statute of limitations to apply for workers' compensation benefits pursuant to Labor Code section 5405. The three points designated in section 5405 as the start of the one year period are: date of injury; the last payment of disability indemnity; and the last date on which medical treatment benefits were furnished. (Lab. Code, § 5405(a)-(c).) The statute of limitations is an affirmative defense, and therefore, the burden of proof rests with defendant. (Lab. Code, § 5409, 5705.) According to defendant, applicant filed his claim form beyond the one year statute of limitations and therefore his claim is barred. (Petition, p. 4.)

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant credibly testified he informed supervisors of injury and need for medical treatment prior to April 2012.

Favours Applicant prevailed

Supports tolling because applicant was unaware of rights due to defendant's failure to notify.

From the decision · page 4The WCJ stated that applicant credibly testified that prior to going to the doctor in April 2012, he told his supervisors, Marlon McBride and Cesar Escuro, that he had injured his neck in training and needed to see a doctor. (Report, p. 2.) We will not disturb the WCJ's credibility

Defendant did not provide claim form or notify applicant of workers' compensation rights after injury in February 2012.

Favours Applicant prevailed

This breach tolled the statute of limitations, allowing applicant's claim to proceed despite late filing.

From the decision · page 4Here, it is undisputed that defendant did not provide applicant with a claim form and did not apprise him of his workers' compensation rights following the claimed specific injury in February 2012. Applicant did not complete the claim form until February 3, 2017, after his injury worsened. (5/7/19 MOH/SOE, p. 6; 6/20/19 SOE, pp. 2-3; Ex B., DWC-1 Claim Form of 2/3/17, p. 1.) However, defendant had knowledge of the injury sufficient to afford opportunity to the employer to make an investigation into the facts pursuant to section 5402(a) shortly after the injury occurred in February 2012. Prior to going to the doctor in April 2012, applicant told supervisor McBride that he had injured his neck in training and he had to see a doctor for the injury. (5/7/19 MOH/SOE, p. 6.) In April or May 2012, applicant also told supervisor Escuro that he had injured his neck in training and was receiving treatment from a doctor for the injury. (5/7/19 MOH/SOE, p. 6.) A few weeks after the injury, applicant told supervisor McBride that he needed time off to see the doctor due to his neck pain. (5/7/19 MOH/SOE, p. 5.)

ADJ10767201 · September 1, 2023

What the panel ordered

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The facts that decided it

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