ADJ12994950 · February 12, 2026

Defendant failed to provide required notices under Rule 9812 and misled applicant, causing delay in filing; thus, defendant is estopped from raising statute of limitations defense.

From the decision · page 1Applicant sought reconsideration of the Findings and Order (F&O) issued by a workers' compensation administrative law judge (WCJ) on March 11, 2021, wherein it was found that applicant sustained an injury arising out of and in the course of her employment to the right knee and left shoulder on November 30, 2011, and that her claim is barred by the statute of limitations pursuant to Labor Code2 section 5405.

Defendant did not provide required notices under Rules 9810 and 9812, and notices were absent from claims file.

Favours Applicant prevailed

Adverse inference drawn that notices were never provided, supporting estoppel against statute of limitations defense.

Defendant misled applicant by accepting claim and providing medical treatment but failing to comply with notice requirements, causing delay in filing claim.

Favours Applicant prevailed

Supports estoppel preventing defendant from raising statute of limitations defense.

From the decision · page 1Applicant contends that defendant failed to meet its burden of proof and is estopped to assert the statute of limitations because it never complied with the notice requirements of section 5401 pursuant to Kaiser Found. Hosps. Permanente Medical Group v. Workers' Comp. Appeals Bd. (Martin) (1985) 39 Cal.3d 57, 63 [50 Cal.Comp.Cases 411] and Reynolds v. Workmen's Comp. Appeals Bd. (Reynolds) (1974) 12 Cal.3d 762 [39 Cal.Comp.Cases 768]; and, further, defendant misled applicant by initially accepting applicant's claim and providing medical treatment but then

Declared applicant permanent and stationary from the November 30, 2011 injury with 0% whole person impairment; described injury as contusion to right knee and mild injury to left knee; did not expect surgery.

From the decision · page 3On January 29, 2014, orthopedic surgeon Brian Solberg, M.D., who started treating applicant on September 11, 2013, declared her permanent and stationary from the November 30, 2011 specific injury with 0% whole person impairment. (Joint Exh. A, report of panel qualified medical evaluator (PQME) Brian D. Rothi, M.D., October 7, 2020, p. 5.) Dr. Solberg described the injury as a contusion to her right knee and a "`very mild'" injury to her left knee. (Ibid.) Dr. Solberg did not expect applicant to require any surgery resulting from her industrial injury. (Ibid.)

Opined that the November 30, 2011 injury aggravated pre-existing arthritis in right knee; left knee symptoms are compensable consequence; apportionment similar for both knees.

From the decision · page 8Having reviewed these new medical records, it is my opinion that the claimant's initial injury of November 30, 2011 aggravated a pre-existing condition of developing arthritis in the right knee; and the subsequent development on the left knee symptoms and findings are a compensable consequence to her right knee injury, therefore, apportionment is basically the same for the right and left knees.

Concluded industrial injury occurred; some degenerative changes not work related; treatment necessary on industrial basis; medical treatment was for industrial injury.

From the decision · page 9confirm the conclusions of the PQME. In the August 19, 2020 report, Dr. Haronian reviewed medical records dating from December 1, 2011 through February 11, 2020. (App. Exh. 1, Report of Edwin Haronian, M.D., August 19, 2020, pp. 1-49.) Dr. Haronian concluded that a review of applicant's medical records results in "a clear indication that an industrial injury did occur...that the patient may have had some degenerative changes, which are not work related in the State of California..." and that "[t]reatment is necessary on an industrial basis." (App. Exh. 1, Report of Edwin Haronian, M.D., August 19, 2020, pp. 49-50.) Dr. Haronian concludes that the medical treatment applicant received for her November 30, 2011 specific injury and her cumulative trauma injury was treatment for industrial injury:

Performed MRI revealing destroyed knees; recommended bilateral total knee replacements; performed left and right knee replacement surgeries with post-operative complications.

From the decision · page 5Her employer's workers' compensation carrier made it difficult to get regular treatment and therefore she started treating through her private physician, Jonathan Saluta, M.D. (Joint Exh. B, PQME Report, September 17, 2020, p. 3.) Dr. Saluta performed an MRI which had not been taken before, which the doctor stated revealed "destroyed knees" and that she required knee joint replacement surgery. (Ibid.) Applicant underwent left knee replacement surgery on January 14, 2019, followed by physical therapy and improvement. (Ibid.) Applicant had her right knee replacement surgery on July 10, 2019, with a post-operative infection requiring as second surgery requiring six weeks of antibiotics which ended in November 2019. (Ibid.) Applicant underwent another knee surgy on February 10, 2020 due to remaining restricted mobility in the right knee, but she still has restricted range of motion and pain in that knee. (Id., at p. 4.) She still has some pain in her left knee as well and has to walk with a quad cane to maintain her balance. (Ibid.) Applicant reported that overhead use of her left arm caused her pain her left shoulder but does not prevent her from activities. (Id. at p. 5.) The PQME's conclusions were as follows:

Reluctant to recommend surgery due to obesity and risk of infection from leg ulcers.

From the decision · page 8Dr. Rothi reviewed the surgical records including those records from Jonathan Saluta, M.D., orthopedic surgeon. (Joint Exh. A, October 7, 2020, p. 8.) Dr. Rothi noted that Dr. Saluta reported applicant's "sudden onset of pain" beginning two years prior to August 23, 2019, and recommended an MRI. (Ibid.) Thereafter, Dr. Saluta recommended bi-lateral total knee replacements. (Ibid.) Dr. Rothi noted that another physician, Kathleen Savage, M.D., remained reluctant to recommend surgery based on her obesity and because she believed applicant wold be "set-up for infection because of multiple ulcers presumably on her legs." (Id. at pp. 8-9.)

Labor Code sections 5405, 5903, 5952(d); Hamilton v. Workers' Comp. Appeals Bd.; Lamb v. Workers' Comp. Appeals Bd.; Garza v. Workers' Comp. Appeals Bd.; LeVesque v. Workers' Comp. Appeals Bd.

Burden of proof for statute of limitations defense rests with defendant; decision must be based on admitted evidence and supported by substantial evidence.

Defendant failed to meet burden to establish date statute of limitations began to run; WCJ erred in barring claim based on incomplete findings.

From the decision · page 12(Lab. Code, § 5405.) The statute of limitations is an affirmative defense, and therefore, the burden of proof rests

Defendant failed to provide required notices under Rules 9810 and 9812; adverse inference drawn from absence of notices in record.