ADJ10930184 — California WCAB decision

What the panel ordered

Prior WCAB decision rescinded; matter returned to trial level for further proceedings and record development.

Applicant sought reconsideration of a prior WCAB decision that had found his specific injury claim barred by the statute of limitations; the Board granted reconsideration and now rescinds its prior decision, remanding for further proceedings.

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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.

AOE/COERemandedlumbar spine · back

The record does not provide substantial evidence that applicant sustained both a separate specific and a cumulative trauma injury; further record development is required.

From the decision · page 15Thus, the current record does not support the findings of the WCJ that applicant sustained both a separate and a cumulative trauma injury to his lumbar back. It is therefore our decision after reconsideration to rescind the WCJ's July 6, 2018 F&A in its entirety to enable the parties to further develop the record regarding the "number and nature of injuries" sustained by applicant. (See Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 404 ["it is well established that the WCJ or the Board may not leave undeveloped matters which its acquired specialized knowledge should identify as requiring further evidence"], citing Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 318; Lundberg v. Workmen's Comp. App. Bd. (1968) 69 Cal. 2d 436, 440.)

The facts that decided it

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

Applicant credibly testified he did not know his injury was work-related until 2017 and was not told by any doctor until then.

Favours Applicant prevailed

This testimony was not rebutted by defendant and was key to the Board's finding that the statute of limitations did not bar the claim.

From the decision · page 13In this case, applicant credibly testified that he was not sure his injury was work-related, and also, that no doctor told him his injury was work-related until after he reported his cumulative trauma back injury in 2017. The first doctor to tell applicant that his injury was work-related was either Dr. Weil or defendant's physician, Dr. Tourtlotte. Applicant first saw Dr. Tourtlotte on January 30, 2017 after reporting his cumulative injury. He first saw Dr. Weil on June 8, 2017, at which time he told Dr. Weil that it did not occur to him to file a claim, and that he was unfamiliar with the Workers' Compensation system. Applicant reported that he sought treatment with his treating doctor because he "was in `so much pain that he just needed the injury treated...'" (Joint Exh. 1, pp. 1-2.) Although the issue of the statute of limitations was expressly raised at trial, defendant failed to produce evidence or impeach applicant's credible testimony in order to rebut when applicant received actual knowledge that he might be entitled to workers' compensation benefits.

Defendant never provided applicant with a claim form or notice of rights after the 2007 injury, despite receiving work restriction notices from Kaiser.

Favours Applicant prevailed

Failure to provide notice or claim form prevented the statute of limitations from running against applicant.

From the decision · page 11There is no dispute in this case that defendant never provided applicant with a claim form, and never apprised him of his workers' compensation rights following the claimed October 3, 2007 specific injury. Defendant's contention is that applicant never reported his back injury as work- related, and therefore, that applicant never served legal notice of a work injury pursuant to section 5400 and 5402. As a consequence, defendant contends that the duty to provide applicant with a

The rules the panel named

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

Lab. Code, § 5405; Lab. Code, §§ 5409, 5705; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Martin) (1985) 39 Cal.3d 57; Colonial Ins. Co. v. Industrial Acc. Com. (Nickles) (1945) 27 Cal.2d 437

The burden of proof to establish a bar to applicant's claim based on the statute of limitations rests with defendant. Defendant must show when the statute began to run, starting from any and all three points designated in Labor Code section 5405.

Applied to determine whether defendant met its burden to prove the statute of limitations barred applicant's claim.

From the decision · page 9Applicant's primary contention is that defendant failed to meet its burden of proving that applicants' claim for an October 3, 2007 specific injury to his low back is barred by the statute of limitations (Lab. Code, § 5405). We agree that the burden of proof to establish a bar to applicant's claim based on the statute of limitations rests with defendant. (Lab. Code, § 5409, 5705; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Martin) (1985) 39 Cal.3d 57, 67, fn. 8 [50 Cal.Comp.Cases 411].) Defendant's burden is to show when the statute of limitations began to run, "starting from any and all three points designated [in Labor Code section 5405]." (Colonial Ins. Co. v. Industrial Acc. Com. (Nickles) (1945) 27 Cal.2d 437, 441 [10 Cal.Comp.Cases 321].) The three points designated in section 5405 are date of injury (Lab.

Permanente Medical Group v. Workers' Comp. Appeals Bd. (Williams) (1985) 171 Cal.App.3d 1171

Where a claimant asserts exemptions or exceptions to the statute of limitations, the burden is on the claimant to produce evidence sufficient to prove such avoidance.

Applied to determine applicant's burden to establish equitable tolling or avoidance of the statute of limitations.

From the decision · page 11Finally, "as a general rule, where a claimant asserts exemptions, exceptions, or other matters which will avoid the statute of limitations, the burden is on the claimant to produce evidence sufficient to prove such avoidance." (Permanente Medical Group v. Workers' Comp. Appeals Bd. (Williams) (1985) 171 Cal.App.3d 1171, 1184 [50 Cal.Comp.Cases 491].) Thus, in order to establish an equitable tolling under Reynolds and Martin, applicant had the initial, or threshold burden of proof to establish that defendant had knowledge of applicant's injury sufficient to trigger its duty of notification. If applicant succeeds, the burden of proof shifts back to defendant to establish that applicant had actual knowledge of his potential right to workers' compensation benefits more than one year prior to the filing of the application.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's credible testimony that he did not know his injury was work-related until 2017 and that no doctor told him so until then.

From the decision · page 13In this case, applicant credibly testified that he was not sure his injury was work-related, and also, that no doctor told him his injury was work-related until after he reported his cumulative trauma back injury in 2017. The first doctor to tell applicant that his injury was work-related was either Dr. Weil or defendant's physician, Dr. Tourtlotte. Applicant first saw Dr. Tourtlotte on January 30, 2017 after reporting his cumulative injury. He first saw Dr. Weil on June 8, 2017, at which time he told Dr. Weil that it did not occur to him to file a claim, and that he was unfamiliar with the Workers' Compensation system. Applicant reported that he sought treatment with his treating doctor because he "was in `so much pain that he just needed the injury treated...'" (Joint Exh. 1, pp. 1-2.) Although the issue of the statute of limitations was expressly raised at trial, defendant failed to produce evidence or impeach applicant's credible testimony in order to rebut when applicant received actual knowledge that he might be entitled to workers' compensation benefits.

Documentary evidencefavours Applicant prevailed

Defendant never provided applicant with a claim form or notice of workers' compensation rights after the 2007 injury.

From the decision · page 11There is no dispute in this case that defendant never provided applicant with a claim form, and never apprised him of his workers' compensation rights following the claimed October 3, 2007 specific injury. Defendant's contention is that applicant never reported his back injury as work- related, and therefore, that applicant never served legal notice of a work injury pursuant to section 5400 and 5402. As a consequence, defendant contends that the duty to provide applicant with a

Medical recordsfavours Applicant prevailed

Defendant received work restriction notices from Kaiser starting in December 2007 and accommodated applicant's lumbar support belt for years.

From the decision · page 12In this case, and although there remains a dispute in this matter regarding whether police officers for the Port of Stockton are subject to the "duty-belt" presumption under section 3213.2, there can be no dispute that back injuries resulting from peace officers' use of a duty belt on the job are so prevalent that the legislature enacted a rebuttable presumption of compensability for designated peace officers who sustain such injuries. Applicant saw his primary care physician at Kaiser, who eventually returned him to work in December 2007 with the restriction that he wear a lumbar support belt. It is undisputed that defendant received the work restriction notices from Kaiser starting in December 2007, and that defendant was able to accommodate the use of a lumbar support belt for years. (See App. Exh. 1/Def. Exh. A, Kaiser records.)

ADJ10930184 · May 13, 2022

What the panel ordered

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The facts that decided it

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