ADJ10305680 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration filed by Applicant challenging WCJ's Findings and Order denying Petition to Reopen as untimely.

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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 limitationsDefendant prevailedcumulative trauma

Applicant's petition to reopen was filed more than five years after the last date of industrial exposure in 2016, making it untimely under Labor Code section 5410.

From the decision · page 2Applying these principles to the current matter, applicant did not file her petition to reopen within five years of the date of injury. The issue we face on appeal is only whether applicant timely filed her petition to reopen and not if she claimed a new industrial injury. Therefore, we will not disturb the WCJ's decision that applicant's petition to reopen was untimely.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

The rules the panel named

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

Labor Code sections 5405(a) and 5410

The statute of limitations for filing a workers' compensation claim is one year from the date of injury, with a five-year period for new and further disability claims under Labor Code section 5410.

Applicant's petition to reopen was untimely as it was filed more than five years after the last date of industrial exposure in 2016.

From the decision · page 2The relevant statute of limitations for filing a workers' compensation claim is one year from the date of injury. (Lab. Code, § 5405(a).) Pursuant to section 5410, an injured worker who has previously received workers' compensation benefits either voluntarily paid by the employer or pursuant to an award is entitled to claim benefits for "new and further disability" within five years of the date of injury. (Sarabi v. Workers' Comp. Appeals Bd. (2007) 151 Cal.App.4th 920, 925 [72 Cal.Comp.Cases 778].) If a petition to reopen is filed within the five-year period, the Board has jurisdiction to decide the matter beyond the five-year period. (Id.)

Labor Code section 5412

The date of injury for occupational diseases or cumulative injuries is the date the employee first suffered disability and knew or should have known it was caused by employment.

The last date of industrial exposure and knowledge of disability was in 2016, starting the statute of limitations period.

From the decision · page 1I. We note that the "date of injury in cases of occupational diseases or cumulative injuries 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.)2 Whether an employee knew or should have known his disability was industrially caused is a question of fact. (City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal.App.3d 467, 471 [50 Cal.Comp.Cases 53] (Johnson); Nielsen v. Workers' Comp. Appeals Bd. (1985) 164 Cal.App.3d 918, 927 [50 Cal.Comp.Cases 104]; Chambers v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 556, 559 [33 Cal.Comp.Cases 722].) "The number and nature of the injuries suffered are questions of fact for the WCJ or the

ADJ10305680 · October 4, 2024

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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The rules the panel named

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