ADJ11008409 · December 9, 2025

The Appeals Board found that the proper date of injury under section 5412 is October 13, 2020, when both parties had knowledge of the cumulative injury, and that defendant failed to meet its duty to notify applicant, tolling the statute of limitations and preventing the claim from being barred.

From the decision · page 8Based on our review, we agree with the WCJ that the record contains substantial medical evidence that applicant sustained a cumulative injury AOE/COE to his right foot/ankle, left foot/ankle, lumbar spine, right hip and left hip. However, October 13, 2020, when both parties had knowledge that there was substantial medical evidence of cumulative injury, is the proper date of injury pursuant to section 5412, and whether the statute of limitations had elapsed pursuant to section 5405(a) is based on that date of injury. Defendant is mistaken where it contends that only applicant had knowledge on that date. Applicant proved defendant had knowledge of his injury based on the reporting of Dr. McGahan addressed to both parties as early as October 13, 2020 or as late as May 26, 2021, when defendant deposed Dr. McGahan, either event being sufficient to trigger defendant's duty of notification, thereby tolling the statute of limitations. (See Exhibits 3 and 9.) There is no evidence in the record that defendant met its duty of notification to applicant. Thus, we also agree with the WCJ that defendant did not meet its burden, and applicant's injury claim is not barred by the statute of limitations defense.

Defendant had actual knowledge of the cumulative trauma injury claim as early as October 13, 2020, based on Dr. McGahan's report and deposition testimony.

Favours Applicant prevailed

This knowledge triggered defendant's duty to notify applicant and provide a claim form, which defendant failed to do, tolling the statute of limitations and preventing the claim from being barred.

From the decision · page 6In this matter, Defendant had actual knowledge of the cumulative trauma claim at least as early as October 2020, when the Agreed Medical Examiner, Dr. Patrick McGahan, reported that applicant sustained cumulative trauma to the feet/ankles, hips, and lumbar spine. Defendant's counsel also questioned Dr. McGahan at deposition extensively in 2021 regarding the cumulative trauma claim.

Found applicant sustained cumulative trauma industrial injury to lumbar spine, bilateral hips, and feet/ankles, recommending date of injury as December 7, 2018, but later amended to October 13, 2020.

Dr. McGahan's reports and deposition established knowledge of cumulative injury triggering defendant's duty to notify, relevant to statute of limitations issue.

From the decision · page 3On October 13, 2020, Dr. McGahan, AME on ADJ11008409, issued an initial evaluative report that found applicant also had a cumulative injury as follows:

Labor Code section 5412

The date of injury for cumulative injuries is the date the employee first suffered disability and knew or should have known it was caused by employment (Labor Code section 5412).

Used to determine the proper date of injury and statute of limitations commencement.

From the decision · page 7The 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.

Labor Code section 5401(a)

An employer must provide a claim form within one day of notice or knowledge of injury (Labor Code section 5401(a)).

Failure to provide claim form tolls statute of limitations.

From the decision · page 5The statute of limitations may be tolled when a defendant breaches its duty to notify an injured worker of his or her workers' compensation rights. Specifically, an employer is required to provide a claim form to an employee within one day of notice or knowledge of an alleged work injury. (See Labor Code, Section 5401(a).)

Labor Code section 5405

The statute of limitations begins to run from the date of injury, last payment of disability indemnity, or last date of medical treatment (Labor Code section 5405).

Determines when statute of limitations begins to run.

From the decision · page 5The defendant has the burden of proof establishing a bar to an applicant's claim of injury, based on the statute of limitations. Defendant's burden is to show when the statute of limitations began to run, starting from any of the three points designated in Labor Code, Section 5405. The three starting points designated in Labor Code, Section 5405 are as follows:

Defendant had actual knowledge of cumulative trauma claim as early as October 2020 based on Dr. McGahan's report and deposition testimony, but failed to provide claim form or notice to applicant, tolling statute of limitations.

From the decision · page 6In this matter, Defendant had actual knowledge of the cumulative trauma claim at least as early as October 2020, when the Agreed Medical Examiner, Dr. Patrick McGahan, reported that applicant sustained cumulative trauma to the feet/ankles, hips, and lumbar spine. Defendant's counsel also questioned Dr. McGahan at deposition extensively in 2021 regarding the cumulative trauma claim.