ADJ10305680 · October 4, 2024

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.

Applicant last physically worked for the employer in 2016, which is the end date of cumulative trauma exposure.

Favours Defendant prevailed

This date starts the five-year statute of limitations period under Labor Code section 5410, making the 2023 petition to reopen untimely.

From the decision · page 8Applicant is incorrect as to the application of Labor Code sec 5410 in this matter. At the latest, Applicant's cumulative trauma runs through her last date of industrial exposure pursuant to Labor Code section 5500.5 (which was in April, 2016) or through to the date that she had concurrence of knowledge and disability pursuant to Labor Code section 5412 (which is evidenced by her February 13, 2016 Declaration of Readiness to Proceed wherein Applicant asserts entitlement to medical treatment and temporary disability with reasoning contained therein). (EAMS ID# 59423861). Based thereon, the 5 year statute of limitations set forth by 5410 is calculated from 2016 as both Labor Code 5500.5 and Labor Code 5412 would result in an end date of the CT in 2016. 2023 is more than 5 years after 2016.

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

Applicant did not object to the Summary of Evidence and did not specify inaccuracies in it.

From the decision · page 9Applicant asserts that the Summary of Evidence is inaccurate. Applicant did not Object to the Summary of Evidence when served. Applicant did not specify within her Petition for Reconsideration what inaccuracies are contained within the Summary of Evidence. Applicant merely offers an unsupported allegation. Applicant asserts that the Court failed to consider Applicant's pro per status. Applicant is correct in this assertion: the law is not applied any differently dependent upon whether an Applicant is represented or not. The Labor Code is the Labor Code and is applied in the same manner notwithstanding whether via counsel or in pro per. If Applicant believes that she received "faulty legal representation" she has legal recourse outside the WCAB and same is not relevant to the questions before the Court. Applicant was not represented at the WCAB at the time she requested voluntary dismissal of her case in 2020. Applicant has not been represented at the WCAB thereafter including at the time of filing the Petition to Reopen in 2023 nor at the time of Trial in 2024.