ADJ11558403 · February 1, 2021

The WCJ found the applicant sustained a specific injury on May 14, 2017, and that the claim was not barred by the statute of limitations because the statute was tolled until the applicant received a DWC-1 form on August 1, 2018, and the application was filed within one year thereafter.

From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings of Fact of November 9, 2020, wherein it was found that while employed as a seasonal tractor driver on May 14, 2017, applicant sustained industrial injury to his neck. In finding an industrial injury, the WCJ found that applicant's claim was not barred by the statute of limitations. Additionally, the WCJ found a specific injury despite the fact that applicant alleged a cumulative injury in his Application for Adjudication of Claim.

Applicant reported injury to supervisor, which the WCJ found credible over defendant's contrary testimony.

Favours Applicant prevailed

This finding established the defendant's duty to provide the DWC-1 form, tolling the statute of limitations.

From the decision · page 3In this case, the WCJ believed the applicant's testimony that he reported his injury to his supervisor, and disbelieved the defendant's witnesses' testimony to the contrary. A WCJ's credibility determinations are "entitled to great weight." (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) The defendant thus had the duty pursuant to Labor Code section 5401 to give applicant the DWC-1 form containing notice of his workers' compensation rights, and the statute of limitations was tolled until he was given the form or otherwise obtained actual knowledge of his rights. Defendant asserts that applicant obtained knowledge of his workers' compensation rights in August of 2018. Given that applicant signed a DWC-1 form on August 1, 2018, we agree that the tolling period ended on that date. However, applicant filed his Application for Adjudication just two months later on October 1, 2018, well within the one-year period from when the tolling ceased. As noted above, even though applicant's Application alleged a cumulative injury, his claim of specific injury related back to his timely October 1, 2018 filing.

Applicant signed the DWC-1 form on August 1, 2018, ending the tolling period for the statute of limitations.

Favours Applicant prevailed

This date started the one-year statute of limitations period within which the application was timely filed.

From the decision · page 3In this case, the WCJ believed the applicant's testimony that he reported his injury to his supervisor, and disbelieved the defendant's witnesses' testimony to the contrary. A WCJ's credibility determinations are "entitled to great weight." (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) The defendant thus had the duty pursuant to Labor Code section 5401 to give applicant the DWC-1 form containing notice of his workers' compensation rights, and the statute of limitations was tolled until he was given the form or otherwise obtained actual knowledge of his rights. Defendant asserts that applicant obtained knowledge of his workers' compensation rights in August of 2018. Given that applicant signed a DWC-1 form on August 1, 2018, we agree that the tolling period ended on that date. However, applicant filed his Application for Adjudication just two months later on October 1, 2018, well within the one-year period from when the tolling ceased. As noted above, even though applicant's Application alleged a cumulative injury, his claim of specific injury related back to his timely October 1, 2018 filing.

Determined whether the injury was specific or cumulative based on the unified set of facts and medical records; found operative facts were identical for both injury types.

From the decision · page 2As noted in Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227, 234-235 [58 Cal.Comp.Cases 323], "In any given situation, there can be more than one injury, either specific or cumulative or a combination of both, arising from the same event or from separate events. [Citations.] The number and nature of the injuries suffered are questions of fact for the WCJ or the WCAB. [Citations.]" Here, qualified medical evaluator orthopedist Keith A. Robertson, M.D. was given a history and set of medical records and asked to determine whether the unified set of facts constituted a specific or cumulative injury. The operative facts underlying the potential specific or cumulative injury were identical. Additionally, as noted by the WCJ, defendant was alerted early in the litigation, at applicant's deposition on April 23, 20191, that applicant was asserting a specific rather than cumulative injury. (April 23, 2019 report at p. 10.)2 Defendant was not surprised or prejudiced by the allegation and finding of a specific injury.

Labor Code section 5401

The statute of limitations is tolled by an employer's failure to notify an injured employee of a potential right to benefits as required by Labor Code section 5401(a).

The defendant had the duty to provide the applicant with a DWC-1 form notifying him of his workers' compensation rights, and the statute was tolled until the applicant received the form or had actual knowledge of his rights.

From the decision · page 3sufficient 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].) One such exemption or exception is that the statute is tolled by an employer's failure to notify an injured employee of a potential right to benefits, as required by Labor Code section 5401(a). (Martin, supra, 39 Cal.3d at p. 60.) Pursuant to Labor Code section 5401, within one day of receiving notice of the applicant's injury, defendant was required to send the applicant a DWC-1 form which apprises the injured worker of his or her potential eligibility for workers' compensation benefits under California law. (Labor Code, § 5401, subd. (a).) The Supreme Court has held that "the remedy for breach of an employer's duty to notify is a tolling of the statute of limitations if the employee, without that tolling, is prejudiced by the breach." (Martin, supra, 39 Cal.3d at p. 64.)

WCJ credited applicant's testimony that he reported injury to supervisor and disbelieved defendant's witnesses' contrary testimony.

From the decision · page 3In this case, the WCJ believed the applicant's testimony that he reported his injury to his supervisor, and disbelieved the defendant's witnesses' testimony to the contrary. A WCJ's credibility determinations are "entitled to great weight." (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) The defendant thus had the duty pursuant to Labor Code section 5401 to give applicant the DWC-1 form containing notice of his workers' compensation rights, and the statute of limitations was tolled until he was given the form or otherwise obtained actual knowledge of his rights. Defendant asserts that applicant obtained knowledge of his workers' compensation rights in August of 2018. Given that applicant signed a DWC-1 form on August 1, 2018, we agree that the tolling period ended on that date. However, applicant filed his Application for Adjudication just two months later on October 1, 2018, well within the one-year period from when the tolling ceased. As noted above, even though applicant's Application alleged a cumulative injury, his claim of specific injury related back to his timely October 1, 2018 filing.