ADJ17110321 · December 18, 2023

The record lacked sufficient medical evidence to determine the date of injury; further record development was ordered.

From the decision · page 4For the foregoing reasons, IT IS ORDERED that applicant's Petition for Reconsideration of the September 28, 2023 Findings of Fact, Award, and Order is GRANTED. IT IS FURTHER ORDERED, as the Decision After Reconsideration of the Workers' Compensation Appeals Board that the September 28, 2023, Findings of Fact, Award, and Order is AFFIRMED except that it is AMENDED as follows: 9. The issue of the date of injury under Labor Code section 5412 is deferred. 10. The issue of whether applicant's claim for a cumulative trauma injury to the low back through December 3, 2021 is barred by the statute of limitations is deferred.

The record lacked sufficient medical evidence to determine the date of injury and whether the statute of limitations barred the claim; further record development was ordered.

From the decision · page 4For the foregoing reasons, IT IS ORDERED that applicant's Petition for Reconsideration of the September 28, 2023 Findings of Fact, Award, and Order is GRANTED. IT IS FURTHER ORDERED, as the Decision After Reconsideration of the Workers' Compensation Appeals Board that the September 28, 2023, Findings of Fact, Award, and Order is AFFIRMED except that it is AMENDED as follows: 9. The issue of the date of injury under Labor Code section 5412 is deferred. 10. The issue of whether applicant's claim for a cumulative trauma injury to the low back through December 3, 2021 is barred by the statute of limitations is deferred.

There was insufficient medical evidence in the record to determine industrial injury or the date of injury for statute of limitations purposes.

Favours neutral

This lack of evidence required further record development and precluded a final determination on the statute of limitations defense.

From the decision · page 4Sections 5701 and 5906 authorize the WCJ and the Board to obtain additional evidence, including medical evidence. (McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138, 141-143 (Appeals Bd. en banc).) The Appeals Board may not leave matters undeveloped where it is clear that additional discovery is needed. (Kuykendall v. Workers' Comp. Appeals Bd., supra, 79 Cal.App.4th at p. 404.) The record must be developed in order to determine industrial injury pursuant to section 3600(a) and the date of injury pursuant to section 5412. Therefore, we will grant the Petition for Reconsideration; affirm the September 28, 2023 FA&O except that we will amend Findings 9 and 10, the award, and the order; and return this matter to the WCJ for further proceedings. Upon return to the WCJ, we recommend that the medical record be developed to cure the lack of medical evidence related to the issues of industrial injury and date of injury.

Labor Code § 5412

The date of injury in cases of occupational diseases or cumulative injuries is that 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 was caused by his present or prior employment.

Applied to determine when the statute of limitations began to run for applicant's cumulative trauma claim.

From the decision · page 3We note that the "date of injury in cases of occupational diseases or cumulative injuries is that 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 was caused by his present or prior employment." (Lab. Code, § 5412.) Whether an employee knew or should have known his disability was industrially caused is a question of fact. (City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal.App.3d 467, 471 [50 Cal.Comp.Cases 53] (Johnson); Nielsen v. Workers' Comp. Appeals Bd. (1985) 164 Cal.App.3d 918, 927 [50 Cal.Comp.Cases 104]; Chambers v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 556, 559 [33 Cal.Comp.Cases 722].)

Labor Code § 5409

The running of the period of limitations is an affirmative defense; the burden of proving it has run is on the party opposing the claim.

Applied to assign burden of proof on statute of limitations defense.

From the decision · page 3Further, the relevant statute of limitations for filing a workers' compensation claim is one year from the date of injury. (Lab. Code, § 5405(a).) The running of the period of limitations is an affirmative defense; the burden of proving it has run, therefore, is on the party opposing the claim. (Lab. Code, § 5409; Kaiser Found. Hosps. Permanente Medical Group v. Workers' Comp. Appeals Bd. (1985) 39 Cal.3d 57, 67, fn. 8 [50 Cal.Comp.Cases 411].)

Applicant testified he went off work on December 3, 2021, due to low back pain and believed it was work related, but no doctor told him it was or was not work related.

From the decision · page 2The case proceeded to trial on the issue of whether the injury arose out of employment and occurred during the course of employment (AOE/COE), and specifically whether the claim was barred by the statute of limitations. (9/26/23 Minutes of Hearing/Statement of Evidence (MOH/SOE, p. 2.) Applicant testified that he went off work on December 3, 2021, because of low back pain. (MOH/SOE, p. 4.) While the applicant believed that his low back pain was work related, no doctor told him that it was or was not work related. (MOH/SOE, p. 4.) Applicant filed the application so that he could get treatment. (MOH/SOE, p. 4.)