ADJ13034108 — California WCAB decision

What the panel ordered

The WCAB panel denies the Petition for Reconsideration, affirming the dismissal of the claim as barred by the statute of limitations.

Applicant seeks reconsideration of the Findings & Order issued on December 15, 2020 by a WCJ, which found the claim barred by the statute of limitations and dismissed it.

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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 limitationsDefendant prevailedhand

The WCJ and WCAB found that the applicant's claim was barred by the statute of limitations because she failed to timely report the injury to her employer, and the use of employer-provided health benefits did not toll the statute of limitations under Labor Code section 5405(c) as interpreted in Mihesuah and Nielsen.

From the decision · page 1Applicant seeks reconsideration of the "Findings & Order" (F&O) issued on December 15, 2020 by a workers' compensation administrative law judge (WCJ). The WCJ found, in pertinent part, that applicant's claim for a December 19, 2017 injury is barred by the statute of limitations, and that her use of employer-provided health benefits did not toll the statute of limitations. The WCJ thereby ordered that applicant's claim be dismissed.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Mihesuah v. Workmen's Comp. Appeals Bd. (1972) 29 Cal.App.3d 337

The statute of limitations under Labor Code section 5405(c) is tolled only if the employer has knowledge of the claim or injury related to the treatment provided under the employer's health plan.

The court in Mihesuah held that employer-provided medical treatment tolls the statute of limitations only if the employer knows the treatment is for a compensable injury.

From the decision · page 3In Mihesuah, an employer disclaimed compensation responsibility for an employee's disabling truck accident. Unlike the instant case, however, the employer failed to advise the injured employee of its disclaimer, but rather, for over two years, continued to furnish medical treatment under its own medical plan and paid the employee substantial benefits from its own pension and disability fund. When these benefits were suddenly withdrawn the employee promptly filed a claim. In reversing the Board's determination that the claim was barred, the Mihesuah court concluded that the employer's contributions to the employee group medical care plan necessarily constituted section 4600 "benefits," thus tolling the statute of limitations for so long as treatment for a compensable injury was afforded under the plan. (Id., at pp. 334-335.)

Nielsen v. Workers' Comp. Appeals Bd. (1985) 164 Cal.App.3d 918

If an employer or its compensation carrier furnishes treatment or advances sums for purposes bearing a clear relationship to an industrial injury, such benefits toll the statute of limitations.

The court in Nielsen clarified that employer knowledge of the injury or claim is necessary for tolling under section 5405(c).

From the decision · page 3The Court in Nielsen v. Workers' Comp. Appeals Bd. (1985) 164 Cal.App.3d 918 [50 Cal.Comp.Cases 104] (Nielsen), concluded that, "the Mihesuah decision is simply another in the line of decisions holding that `if an employer or its compensation carrier, knowing of a potential claim, furnishes treatment or advances sums for purposes bearing a clear relationship to an industrial injury, such benefits will be deemed to have been given under the Act thus tolling the statute.'" (Id., at p. 933, citing Webb, supra, 19 Cal.3d at p. 333, emphasis added; see Gonzalez v. Workers' Comp. Appeals Bd. (1986) 186 Cal.App.3d 514, 523 [51 Cal.Comp.Cases 485].) In support, the Nielsen Court cited to cases dating back to the 1930's and 1940's:

ADJ13034108 · March 30, 2021

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