ADJ14990392 — California WCAB decision

What the panel ordered

WCJ decision affirmed; claim not barred by statute of limitations; permanent disability of 25% for asthma due to cumulative injury

Petition for Reconsideration granted to study statute of limitations issue; WCJ Partial Findings, Award and Order of October 24, 2022, affirmed

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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.

Statute of limitationsApplicant prevailedlungs · asthma

Defendant failed to meet burden to prove claim barred by statute of limitations because it did not show when applicant first sustained compensable disability; applicant did not know injury was work related until about August 3, 2021; application was timely filed on August 4, 2021.

From the decision · page 1In order to further study the factual and legal issues in this matter, on January 13, 2023, we granted defendant Petition for Reconsideration of a workers' compensation administrative law judge's (WCJ) Partial Findings, Award and Order of October 24, 2022, wherein it was found that while employed as a fire captain during a cumulative period ending on March 28, 2016, applicant sustained industrial injury in the form of asthma causing permanent disability of 25%. The WCJ found that applicant's claim was not barred by the statute of limitations.

The rules the panel named

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

Labor Code sections 5409, 5405

The statute of limitations is an affirmative defense; burden on defendant to prove claim barred by one year from date of injury, last indemnity, or last medical treatment (Lab. Code, §§ 5409, 5405).

Defendant failed to prove when statute began to run; applicant did not receive indemnity or medical treatment relevant to limitations period; date of injury is controlling.

From the decision · page 1The running of the statute of limitations is an affirmative defense, and the burden of proving it is on the party opposing the claim. (Lab. Code, § 5409; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Martin) (1985) 39 Cal.3d 57, 67, fn. 8 [50 Cal.Comp.Cases 411].) The burden is on defendant 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. Code, § 5405, subd. (a)); the last payment of disability indemnity (Lab. Code, § 5405, subd. (b)); and the last date on which medical treatment benefits were furnished (Lab. Code, § 5405, subd. (c).) In this case, it appears that the applicant was not

Labor Code section 5412

Date of injury in cumulative injury cases is when employee first suffered disability and knew or should have known it was work related (Lab. Code, § 5412).

Applicant did not know and should not have known injury was work related until August 3, 2021; application filed timely thereafter.

From the decision · page 2The date of injury in cumulative injury cases is "that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment." (Lab. Code, § 5412 [emphasis added].)

ADJ14990392 · January 17, 2023

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