California Labor Code § 5400

Determinative passage · p.9Petitioner is correct that a formal MSC was held only in one of the two cases. The court accepts as correct that defense counsel's awareness of Exhibits D and E in his own file first arose when he said it did, specifically mid-way through the first day of trial. Both exhibits, however, were relevant to the statute contentions in both cases. The obligation of a party to respond to reasonable requests for discovery is not a passive one. Petitioner offered (and offers) no plausible explanation as to why the letters were not earlier recognized and produced when first demanded by applicant. A failure to produce relevant documents, including those predictably destined to be exhibits on fulcrum issues, may result in their exclusion from evidence. In this case, the court determined Exhibits D and E must be excluded.

The court applied these statutes to determine that the failure to timely file and produce documents justified exclusion of exhibits as a sanction.

Determinative passage · p.8II. We further note one of the issues presented at trial was whether applicant timely reported the claim. A party must prove each issue in its case for which it bears the burden by a preponderance of the evidence; once a party has proven an element, the burden of proof shifts to the other party to produce evidence to rebut it. (Lab. Code § 3202.5). Under Labor Code section 3600(a)(10), a claim will be barred unless the applicant can demonstrate by a preponderance of the evidence that the employer had notice of the injury prior to notice of termination to the applicant. Labor Code section 3600(a)(10)(A) allows an applicant to prove notice prior to termination as defined by the provisions set forth in the Labor Code. Therefore, even if the applicant did not notify the employer under the procedure for notice set forth in section 5400, which requires that written notice of injury be given to the employer within thirty days of the injury, notice may be sufficient under section 5402(a) if the employer has knowledge of the injury.5 Under section 5402(a), this knowledge is defined as: (1) knowledge obtained by the employer6 from any source or (2) knowledge that was enough to "afford opportunity to the employer to make an investigation into the facts." (Lab.

Applied to the issue of timely reporting of injury claim.

Determinative passage · p.4The injured worker may not maintain a claim for workers' compensation unless written notice of the claimed injury is served on the employer within thirty days of the injury. (Labor Code § 5400.) Labor Code § 5402(a) provides that, "...[k]nowledge of an injury, obtained from any source, on the part of an employer, his or her managing agent, superintendent, foreman, or other person in authority, or knowledge of the assertion of a claim of injury sufficient to afford opportunity to the employer to make an investigation into the facts, is equivalent to service under Section 5400." However, a failure to give notice under Labor Code § 5400 will not bar recovery if the employer was not misled or prejudiced. (Labor Code § 5403.)

The WCJ applied these statutes and case law to determine that the applicant timely reported the injury and that the statute of limitations defense was precluded due to employer's failure to provide notices and the applicant's lack of knowledge of her rights.

Determinative passage · p.1In addition, we note that "`[t]he failure to give notice under [Labor]1 section 5400, or any defect or inaccuracy in a notice is not a bar to recovery under this division if it is found as a fact in the proceedings for the collection of the claim that the employer was not in fact misled or prejudiced by such failure.' (§ 5403.)" (Beckstead v. Workers' Comp. Appeals Bd. (1997) 60

Applied to reject statute of limitations defense due to lack of established prejudice.