ADJ10826263 · August 7, 2023

The record lacked substantial evidence to determine the date of injury or the start of the limitations period, and whether the employer provided a claim form to toll the statute of limitations, so the WCAB remanded for further proceedings to develop the record.

From the decision · page 6Based on the provisions of section 5405, relevant to this matter, the one-year limitations period starts on the date of injury or the last date that any benefits were provided. Our review of the trial record indicates that applicant's testimony pertaining to the section 5412 date of injury is inconsistent. She testified that her doctors told her that her symptoms were caused by her work, and she testified that the doctors never said her condition was work related. (MOH/SOE, October 15, 2019, p. 4.) Also, applicant testified that she did not have any problems with her back or knees at the time she started her employment with defendant and she testified that she injured her back and right knee in a motor vehicle accident in 2006 or 2007 causing limitations, at the time she started her employment with defendant, of no bending, no crawling, no kneeling, no lifting over 25 pounds, no stairs, and no carrying heavy weights due to problems with her back and knees. (MOH/SOE, June 26, 2019, p. 3 and pp.

Applicant's testimony was inconsistent about the date of injury and work-relatedness of her condition.

Favours neutral

This inconsistency prevented determination of the actual date of injury and start of the limitations period.

From the decision · page 6Based on the provisions of section 5405, relevant to this matter, the one-year limitations period starts on the date of injury or the last date that any benefits were provided. Our review of the trial record indicates that applicant's testimony pertaining to the section 5412 date of injury is inconsistent. She testified that her doctors told her that her symptoms were caused by her work, and she testified that the doctors never said her condition was work related. (MOH/SOE, October 15, 2019, p. 4.) Also, applicant testified that she did not have any problems with her back or knees at the time she started her employment with defendant and she testified that she injured her back and right knee in a motor vehicle accident in 2006 or 2007 causing limitations, at the time she started her employment with defendant, of no bending, no crawling, no kneeling, no lifting over 25 pounds, no stairs, and no carrying heavy weights due to problems with her back and knees. (MOH/SOE, June 26, 2019, p. 3 and pp.

There was no evidence on the last date medical benefits were provided or if a claim form was given to toll the statute of limitations.

Favours neutral

Without this evidence, the limitations period start date could not be established.

From the decision · page 65 - 6.) Due to these inconsistencies, we are not able determine the actual date of injury as defined by section 5412; and in turn we cannot determine the beginning of the section 5405 one-year limitations period. Additionally, we note the parties stipulated that, "The employer has furnished some medical treatment," (MOH/SOE, April 30, 2019., p. 2), but there is no evidence stating the last date on which those medical benefits were provided. It is also important to note that the stipulation is inconsistent with applicant's testimony that, "She was never provided or offered medical treatment." (MOH/SOE, June 26, 2019, p. 5.) Again, there is no factual basis for determining the start date of the section 5405 limitations period.

Work cumulative trauma caused/aggravated hands/elbows condition; insufficient evidence for cervical, lumbar spine, shoulders, knees; prior motor vehicle accident and degenerative disease predated employment.

From the decision · page 2BACKGROUND Applicant claimed injury to her upper extremities, low back, and bilateral knees, while employed by defendant as an Administrative Specialist, during the period from February 1, 2011, through December 2, 2015. The Application for Adjudication of Claim was filed on April 12, 2017, and it was amended on May 8, 2017. Orthopedic qualified medical examiner (QME) Lincoln S. Yee, M.D., evaluated applicant on March 29, 2018. Dr. Yee examined applicant, took a history, and reviewed the extensive medical record (approximately 10,900 pages). (See Def. Exh. G, Lincoln S. Yee, M.D., March 29, 2018, p. 2; pp. 13 - 86.) Regarding the cause of applicant's orthopedic condition, Dr. Yee explained:

Labor Code section 5405

The one-year limitations period under Labor Code section 5405 starts on the date of injury or last date of benefits provided.

Applied to determine the statute of limitations start date.

From the decision · page 6Based on the provisions of section 5405, relevant to this matter, the one-year limitations period starts on the date of injury or the last date that any benefits were provided. Our review of the trial record indicates that applicant's testimony pertaining to the section 5412 date of injury is inconsistent. She testified that her doctors told her that her symptoms were caused by her work, and she testified that the doctors never said her condition was work related. (MOH/SOE, October 15, 2019, p. 4.) Also, applicant testified that she did not have any problems with her back or knees at the time she started her employment with defendant and she testified that she injured her back and right knee in a motor vehicle accident in 2006 or 2007 causing limitations, at the time she started her employment with defendant, of no bending, no crawling, no kneeling, no lifting over 25 pounds, no stairs, and no carrying heavy weights due to problems with her back and knees. (MOH/SOE, June 26, 2019, p. 3 and pp.

J. T. Thorp v. Workers' Comp. Appeals Bd. (Butler) (1984) 153 Cal.App.3d 327

Section 5412 prevents premature commencement of the statute of limitations before employee is reasonably aware of injury.

Explained the purpose of section 5412 in tolling statute of limitations.

From the decision · page 5"[T]he purpose of section 5412 was to prevent a premature commencement of the statute of limitations, so that it would not expire before the employee was reasonably aware of his or her injury." (J. T. Thorp v. Workers' Comp. Appeals Bd. (Butler) (1984) 153 Cal.App.3d 327, 340 - 341 [49 Cal. Comp. Cases 224].

Labor Code section 5401

Employer must provide claim form within one working day of notice or knowledge of injury resulting in lost time or medical treatment beyond first aid.

Relevant to tolling statute of limitations if claim form not provided.

From the decision · page 5Section 5401(a) states in part: (a) Within one working day of receiving notice or knowledge of injury under Section 5400 or 5402, which injury results in lost time beyond the employee's work shift at the time of injury or which results in medical treatment beyond first aid, the employer shall provide, personally or by first-class mail, a claim form and a notice of potential eligibility for benefits under this division to the injured employee, or in the case of death, to his or her dependents.... (Lab. Code, § 5401.)

Reynolds v. Workmen's Comp. Appeals Bd. (1974) 12 Cal. 3d 726

If employer does not provide required claim form, statute of limitations is tolled.

Applied to tolling of statute of limitations due to failure to provide claim form.

From the decision · page 6If an employer does not provide the required claim form, the applicable statute of limitations is tolled. (Reynolds v. Workmen's Comp. Appeals Bd., (1974) 12 Cal. 3d 726, 730 [39 Cal.Comp.Cases 768.)

Applicant's inconsistent testimony about date of injury and work-relatedness, and lack of evidence on last date of medical benefits or claim form provision.

From the decision · page 6Based on the provisions of section 5405, relevant to this matter, the one-year limitations period starts on the date of injury or the last date that any benefits were provided. Our review of the trial record indicates that applicant's testimony pertaining to the section 5412 date of injury is inconsistent. She testified that her doctors told her that her symptoms were caused by her work, and she testified that the doctors never said her condition was work related. (MOH/SOE, October 15, 2019, p. 4.) Also, applicant testified that she did not have any problems with her back or knees at the time she started her employment with defendant and she testified that she injured her back and right knee in a motor vehicle accident in 2006 or 2007 causing limitations, at the time she started her employment with defendant, of no bending, no crawling, no kneeling, no lifting over 25 pounds, no stairs, and no carrying heavy weights due to problems with her back and knees. (MOH/SOE, June 26, 2019, p. 3 and pp.