ADJ14990392 · January 17, 2023

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.

Applicant did not receive disability indemnity or medical treatment relevant to statute of limitations.

Favours Applicant prevailed

This meant the statute of limitations start date depended on date of injury under Labor Code section 5405(a).

From the decision · page 2provided with disability indemnity or medical treatment. Thus, the relevant date for statute of limitations purposes is the date of injury.

Applicant did not know and should not have known his asthma was work related until about August 3, 2021.

Favours Applicant prevailed

This delayed the start of the statute of limitations period, making the claim timely.

From the decision · page 4(Exhibit A3.) The record does not state that the doctor told Applicant the Asthma was work related. However, from the actions of the doctor, continuing to care for Applicant through his private insurance, we can deduce that the doctor did not tell Applicant the condition was work related. The court found that this interaction with a medical professional constituted a reasonable diligent investigation to determine if Applicant's asthma was work related. Applicant did not have knowledge that his injury was work related until about August 3, 2021.

Did not find any periods of temporary disability; parties stipulated maximal medical improvement on September 15, 2021.

From the decision · page 3applicant first sustained disability as a result of his asthma condition. In fact, our own review of the record reveals that independent medical evaluator internist Albert E. Lipper, M.D. did not find any periods of temporary disability, and the parties stipulated that applicant did not achieve maximal medical improvement until September 15, 2021. (Minutes of Hearing and Summary of Evidence of September 20, 2022 trial at p. 2.) Without having to decide the issue, it thus appears that the August 4, 2021 filing of the Application for Adjudication of Claim actually preceded the Labor Code section 5412 date of injury.

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].)

Applicant did not know injury was work related until about August 3, 2021, despite asthma diagnosis in 2016 and medical care through private insurance.

From the decision · page 4(Exhibit A3.) The record does not state that the doctor told Applicant the Asthma was work related. However, from the actions of the doctor, continuing to care for Applicant through his private insurance, we can deduce that the doctor did not tell Applicant the condition was work related. The court found that this interaction with a medical professional constituted a reasonable diligent investigation to determine if Applicant's asthma was work related. Applicant did not have knowledge that his injury was work related until about August 3, 2021.