ADJ10767201 · September 1, 2023

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.)

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.)

Provided medical reports documenting treatment for neck injury and related symptoms including migraines and pain down left arm.

From the decision · page 2Applicant received physical therapy and then chiropractic treatment in late 2012. (6/20/19 SOE, p. 2; see also Ex. 1, Dr. Robert Scott report of 9/11/12; Ex. 2, San Diego Sports Medicine report of 8/15/12; Ex. 3. Dr. Robert Scott report of 7/31/12; Ex. 4, San Diego Sports Medicine report of 4/4/12; Ex. 5, Elaine Borseth Chiropractic report of 4/20/12.) Applicant obtained neck surgery through his private insurance to treat the injury and had some out of pocket costs due to co-pays and other treatment not covered by his insurance. (5/7/19 MOH/SOE, p. 6.) He also suffered from migraines after strenuous exercise. (6/20/19 SOE, p. 2.)

Labor Code section 5401(a)

An employer must provide a claim form and notice of potential eligibility for benefits within one working day of receiving notice or knowledge of injury resulting in lost time or medical treatment beyond first aid.

Defendant had knowledge of injury but failed to provide claim form, leading to tolling of statute of limitations.

From the decision · page 3An employer shall provide a claim form and a notice of potential eligibility for benefits to an injured employee within one working day of receiving notice or knowledge of injury, which injury results in lost time beyond the employee's work shift at the time of injury or which results in medical treatment beyond first aid. (Lab. Code, § 5401(a).) An employer can receive "notice or knowledge" via service by the injured worker or someone on the worker's behalf. (Lab. Code, § 5400.) Service includes "[k]nowledge of an injury, obtained from any source, on the part of an employer, the employer's 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." (Lab. Code, § 5402(a).)

Applicant credibly testified he informed supervisors of neck injury and need to see a doctor prior to April 2012, supporting tolling of statute of limitations.

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