What the panel ordered
Petition for Reconsideration granted; June 25, 2024 Findings and Order rescinded; matter returned to trial level for further proceedings.
Applicant sought reconsideration of the June 25, 2024 Findings and Order, which found her petition to reopen based on new and further disability was untimely; the WCAB reviewed the record and granted reconsideration.
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.
The record was insufficient to determine the date of injury or whether the petition to reopen was timely; the defense failed to meet its burden to prove untimeliness, so the matter was remanded for further record development.
From the decision · page 6With respect to the finding that applicant's claim is barred by the five-year statute of limitations under section 5410, we note that the defense of statute of limitations is an affirmative one. Defendant bears the burden of proving same. (Lab. Code, § 5409; Kaiser Found. Hosps. Permanente Medical Group v. Workers' Comp. Appeals Bd. (1985) 39 Cal.3d 57, 67, fn. 8 [50 Cal.Comp.Cases 411] ["The running of the statute of limitations is an affirmative defense (§ 5409), and the burden of proving it has run, therefore, is on the party opposing the claim."].) On this existing record, it appears that the defendant has failed to prove that the filing of the petition to reopen is untimely.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The record lacked a finding of the date of injury and contained only the petition to reopen as evidence.
Favours neutral
Without a finding of the date of injury, the timeliness of the petition to reopen could not be determined, requiring remand for further record development.
From the decision · page 5Unfortunately, not only does the record lack a copy of the original findings and award of October 15, 2021 that is discussed by the WCA's Report, it contains no finding of the date of injury, which is necessary as part of the overall determination in this matter. Based on the sparse record here, we cannot even determine which case applicant seeks to reopen. In fact, the four- minute record created here is devoid of any evidence other than the petition to reopen.
Defendant failed to submit evidence or testimony to prove the petition to reopen was untimely.
Favours Applicant prevailed
The burden of proof for the statute of limitations defense was on defendant, and they failed to meet it.
From the decision · page 7Yet, defendant submitted no evidence, and no testimony was offered as to whether the defendant "received" such petition in an untimely manner. It is not the applicant's burden to prove that the petition to reopen was received on time. Based upon the existing record, it appears the defendant has failed in their burden of proof as to the untimeliness of applicant's petition to reopen, but since we are rescinding the decision in its entirety and returning the matter for further supplementation of the record, we make no findings on this issue at this time.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code § 5409; Kaiser Found. Hosps. Permanente Medical Group v. Workers' Comp. Appeals Bd. (1985) 39 Cal.3d 57, 67, fn. 8 [50 Cal.Comp.Cases 411]
The defense of statute of limitations is an affirmative one; defendant bears the burden of proving the petition to reopen was untimely.
On this record, defendant failed to prove the petition to reopen was untimely, so the matter was remanded.
From the decision · page 6With respect to the finding that applicant's claim is barred by the five-year statute of limitations under section 5410, we note that the defense of statute of limitations is an affirmative one. Defendant bears the burden of proving same. (Lab. Code, § 5409; Kaiser Found. Hosps. Permanente Medical Group v. Workers' Comp. Appeals Bd. (1985) 39 Cal.3d 57, 67, fn. 8 [50 Cal.Comp.Cases 411] ["The running of the statute of limitations is an affirmative defense (§ 5409), and the burden of proving it has run, therefore, is on the party opposing the claim."].) On this existing record, it appears that the defendant has failed to prove that the filing of the petition to reopen is untimely.
What proof carried it
The evidence the panel weighed, by kind.
No evidence or testimony was submitted by defendant as to whether the petition to reopen was received in an untimely manner; only the petition to reopen was in the record.
From the decision · page 7Yet, defendant submitted no evidence, and no testimony was offered as to whether the defendant "received" such petition in an untimely manner. It is not the applicant's burden to prove that the petition to reopen was received on time. Based upon the existing record, it appears the defendant has failed in their burden of proof as to the untimeliness of applicant's petition to reopen, but since we are rescinding the decision in its entirety and returning the matter for further supplementation of the record, we make no findings on this issue at this time.
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About this page
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