Opinion
Santa Ana District Office
OPINION AND DECISION AFTER RECONSIDERATION
DEIDRA E. LOWE, COMMISSIONER
We previously granted applicant’s Petition for Reconsideration (Petition) to further study the factual and legal issues in this case. This is our Opinion and Decision After Reconsideration.
Applicant seeks reconsideration of the Findings and Order (F&O), issued by the workers’ compensation administrative law judge (WCJ) on December 23, 2020, wherein the WCJ found in pertinent part that the Application for Adjudication of Claim (Application) was filed on January 9, 2019, more than five years after the date of injury, and that applicant’s claim is barred by the five-year limitations period defined in Labor Code section 5410.
All further statutory references are to the Labor Code unless otherwise noted.
Applicant contends that the application was timely filed and that applicant’s injury claim is not barred by the section 5410 five-year limitation period.
We received a Report and Recommendation on Petition for Reconsideration (Report) from the WCJ recommending the Petition be denied. We received an Answer from defendant.
We have considered the allegations in the Petition and the Answer, and the contents of the Report. Based on our review of the record, and for the reasons discussed below, we will affirm the Findings of Fact except that we will amend the Findings of Fact to find that the Application was timely filed within the previously tolled section 5405 one year limitations period. Therefore, we will rescind the Order and substitute a new Order, ordering that applicant’s injury claim is not barred by the statute of limitations and that the Appeals Board retains jurisdiction as to applicant’s injury claim; and we will return the matter to the WCJ for further proceedings consistent with this opinion.
BACKGROUND
Applicant claimed injury to his right leg and ankle while employed by defendant as a driver on December 30, 2013. He received a claim form that he signed and returned to the employer (Minutes of Hearing and Summary of Evidence (MOH/SOE), December 10, 2020, p.4.) Applicant received medical treatment from Kamran Aflatoon, D.O. / Concentra Medical Group, including a right tibia metal rod implant surgery. (See Joint Exh. D, Concentra Medical Group.) Defendant paid applicant temporary disability indemnity during the period from January 1, 2014, through October 20, 2014. (Joint Exh. G, Notice Regarding Temporary Disability Benefits.) On November 7, 2014, Dr. Aflatoon found applicant’s condition to be permanent and stationary and he discharged applicant to “regular activities.” (Joint Exh. D, p. 5 [EAMS p. 12].) Based on Dr. Aflatoon’s statement that applicant had no permanent disability, applicant was not paid permanent disability indemnity benefits. (Joint Exh. F, Notice Regarding Permanent Disability Benefits, November 13, 2014.)
Defendant filed a declaration of readiness to proceed stating that the parties “have reached an impasse.” The parties proceeded to trial on December 10, 2020. The issue submitted for decision was, “The defendant's assertion of the statute of limitations defense.” (MOH/SOE, p. 2.)
DISCUSSION
Pursuant to section 5405:
The period within which proceedings may be commenced for the collection of the benefits provided by Article 2 (commencing with Section 4600) or Article 3 (commencing with Section 4650), or both, of Chapter 2 of Part 2 is one year from any of the following:
(a)The date of injury.
(b) The expiration of any period covered by payment under Article 3 (commencing with Section 4650) of Chapter 2 of Part 2.
(c)The last date on which any benefits provided for in Article 2 (commencing with Section 4600) of Chapter 2 of Part 2 were furnished.
The California Supreme Court has held that where an employer fails to provide the employee the statutorily required notice regarding an injury claim, the statute of limitations is tolled until the employer demonstrated that the employee had “actual knowledge” of his or her rights regarding an injury claim. (Kaiser Foundation Hospitals v. Workers’ Comp. Appeals Bd. (1985) 39 Cal.3rd 57, 64–65, 67 including fn. 8 [850 Cal.Comp.Cases 411].) In the Report, the WCJ explained:
Although a claim form was provided, Defendant did not offer proof of the notices (in Spanish) that would have accompanied the claim form. ¶ Failure to advise an injured worker of his rights under the Labor Code, including time limits for filing a claim, tolls the statute of limitations until the worker becomes aware of such rights [Galloway v WCAB, 63 CCC 532 (1998)]. In Honeywell v. Workers' Comp. Appeals Bd. (Wagner), 70 CCC 97 at 104 (2005), the Supreme Court stated that the tolling of the limitation period lasts only until a worker learns of his potential rights. ¶ Therefore, where an employee gains knowledge of his workers' compensation rights, the statute of limitations should not be tolled even if, as is claimed here, an employer breaches its duty to provide required notices because when Applicant gains knowledge of his workers' compensation rights he is not prejudiced by the employer's breach. ¶ Mr. Amezcua appears to have learned of those rights in September 2018, if not earlier.
(Report, pp. 3 – 4.)
It is well established that the burden of proof rests upon the party holding the affirmative of the issue. (Lab. Code, § 5705; Lantz v. Workers’ Comp. Appeals Bd. (2014) 226 Cal.App.4th 298, 313 [79 Cal.Comp.Cases 488]; Hand Rehabilitation Center v. Workers’ Comp. Appeals Bd. (Obernier) (1995) 34 Cal.App.4th 1204 [60 Cal.Comp.Cases 289]; Bolanos v. Workers’ Comp. Appeals Bd. (2014 W/D) 79 Cal.Comp.Cases 1531.) The burden of proving the employee's knowledge of his or her rights is on the employer. (Kaiser, Kaiser Foundation Hospitals v. WCAB (1985) 39 Cal.3d 57 [850 Cal.Comp.Cases 411].) Having reviewed the trial record, we agree with the WCJ that applicant appears to have learned of his rights in September 2018, when he obtained legal representation. There is no evidence in the record to the contrary. Thus, the section 5405 one year limitations period was tolled until September 2018.
The specific date that applicant learned of his rights, within the month of September 2018, is not clear. For the purpose of clarifying the commencement of the limitations period we will assume the actual date was September 1, 2018.
There is clearly a dispute and disagreement as to when the Application was filed. Applicant contends that it was filed on September 13, 2018, and review of the Electronic Adjudication Management System (EAMS) ADJ file indicates it was actually filed/received on January 9, 2019. However, as discussed above the section 5405 one year limitations period was tolled until September 1, 2018, so either date (September 13, 2018, or January 9, 2019) is within the one year limitations period. Based thereon the Application was timely filed and applicant’s claim is not barred by the statute of limitations.
Accordingly, we affirm the Findings of Fact except that we amend the Findings of Fact to find that the Application was timely filed within the previously tolled Labor Code section 5405 one year limitations period. Based thereon, we rescind the Order and substitute a new Order, ordering that applicant’s injury claim is not barred by the statute of limitations and that the Appeals Board retains jurisdiction as to applicant’s injury claim; and we return the matter to the WCJ for further proceedings consistent with this opinion.
For the foregoing reasons,
IT IS ORDERED as the Decision After Reconsideration of the Workers’ Compensation
Appeals Board, that the December 23, 2020 Findings and Order, is AFFIRMED, except that the Findings Of Fact is AMENDED as follows:
FINDINGS OF FACT
* * *
5. The Application for Adjudication of Claim invoking the original jurisdiction of the Appeals Board was filed on January 9, 2019, a date within the previously tolled Labor Code section 5405 one year limitations period.
IT IS FURTHER ORDERED that the Order is RESCINDED and the following is substituted therefore:
ORDER
Applicant’s injury claim is not barred by the applicable limitations period and the Appeals Board retains jurisdiction as to the injury claim at issue herein.
IT IS FURTHER ORDERED that the matter is RETURNED to the WCJ for further proceedings consistent with this opinion.
WORKERS’ COMPENSATION APPEALS BOARD
I CONCUR, KATHERINE WILLIAMS DODD, COMMISSIONER, KATHERINE A. ZALEWSKI, CHAIR
SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.
JESUS AMEZCUA
LAW OFFICES OF JESSE MARINO, APC
PEARLMAN, BROWN & WAX