ADJ16971609 · June 5, 2023

Defendant failed to prove applicant was given proper notice that medical treatment benefits would be limited or denied, so the statute of limitations was tolled until such notice was given.

From the decision · page 4DISCUSSION We turn first to defendant's contention that applicant was on notice of the statute of limitations by February 11, 2016, but "did not file the Application for Adjudication of Claim until November 21, 2022," rendering the application for adjudication herein untimely. Preliminarily we note that the record reveals that applicant filed an application for adjudication alleging that he sustained cumulative injury to his eye, including the optic nerve, on July 1, 2021. (Application for Adjudication, July 1, 2021, ADJ14846298.) Because the July 1, 2021 application was filed more than one year before the November 21, 2022 application on which the Petition relies, it is necessary to examine whether or not it may be operative for the purpose of determining the statute of limitations issue herein--and we will address that issue below. As to defendant's argument that applicant was on notice of the statute of limitations by February 11, 2016, we agree with the WCJ that defendant failed to prove its statute of limitations defense. (Report, pp.

Applicant filed a timely cumulative injury claim on July 1, 2021, within one year of expiration of tolling period.

Favours Applicant prevailed

This filing preserved the Board's jurisdiction and defeated the statute of limitations defense.

From the decision · page 2FACTUAL BACKGROUND On July 1, 2021, applicant filed an application for adjudication alleging that he sustained cumulative injury to his eye, including the optic nerve, during the period from May 21, 2020 through May 21, 2021 (ADJ14846298). (Application for Adjudication, July 1, 2021, ADJ14846298, pp. 1, 9.) On November 21, 2022, applicant filed an application for adjudication alleging that he sustained specific injury to his eye, including the optic nerve, on September 7, 2022. (ADJ16971609). (Application for Adjudication, November 21, 2022, ADJ16971609, pp. 1, 9.) On December 2, 2022, applicant filed an application for adjudication, re-alleging the claim asserted in the November 21, 2022 application but amending the date of injury of to September 6, 2015(ADJ16971609). (Application for Adjudication, December 2, 2022, ADJ16971609, pp. 1, 9.) On January 5, 2023, the parties filed a joint pre-trial conference statement in case numbers ADJ14846298 and ADJ16971609, stipulating that "Applicant herein dismisses ADJ14846298 based on finding of QME that there was no CT injury. (Pre-Trial Conference Statement, January 5, 2023, ADJ14846298, ADJ16971609, p. 2.) The WCJ accepted the stipulation, stating in the disposition notes that applicant agreed to dismiss the cumulative injury claim and that the issue pending was the statute of limitations issue in ADJ16971609. (Id., p.

Defendant failed to prove applicant received proper notice that medical treatment benefits would be limited or denied before filing the claim.

Favours Applicant prevailed

Without proper notice, the statute of limitations was tolled, allowing the claim to proceed.

From the decision · page 13Hence, defendant did not meet its burden of proof. Applicant was not properly noticed about the statute of limitations. Therefore, the statute of limitations is tolled.

With reasonable medical probability, operculated retinal hole and posterior subcapsular cataract of the right eye were due to traumatic injury on September 6, 2015, and subsequent assault on May 26, 2021 aggravated the cataract.

Medical evidence supported the injury date and condition relevant to the statute of limitations issue.

From the decision · page 21.) On February 23, 2023, the matter proceeded to joint hearing in case numbers ADJ14846298 and ADJ16971609 at which trial was held in case number ADJ16971609 on the issue of whether applicant's specific injury claim was barred by the applicable statute of limitations and case number ADJ14846298 was dismissed without prejudice. (Minutes of Hearing and Summary of Evidence Order to Dismiss ADJ14846298, February 23, 2023, pp. 2:3, 3:3.) At trial, the WCJ admitted the PQME report by David A. Sami, M.D., dated February 14, 2022, and the PQME supplemental report by David A.Sami, M.D., dated May 14, 2022, into evidence. (Id., p. 3:11-13.) In the February 14, 2022 report, Dr. Sami states: This is a 48 year old male, Police Officer for the City of Sacramento who suffered an assault by inmate on DOI 5/21/21. Applicant reports that he was forcefully punched in the face and orbit. Subsequent to this injury he developed symptomatic flashes and floaters. Subsequent evaluation indicated an operculated retinal defect which was treated by laser retinopexy on 5/28/21. I received a limited set of "excerpts" from the records of Kaiser Permanente. There were significant gaps in time in the records provided. The review of records indicates that applicant suffered

Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd (1985) 39 Cal.3d 57

The statute of limitations is tolled until the employee receives proper notice that benefits will be limited or denied.

Defendant failed to prove applicant received such notice, so tolling applied.

Labor Code section 5705

The statute of limitations is an affirmative defense and the defendant has the burden of proof.

Defendant did not meet burden to prove timely notice to applicant.

From the decision · page 12In Doney, for purposes of valid notice, Labor Code § 5405 and AD Rule 9812(d), were considered. The statute of limitations is an affirmative defense and defendant, as the party asserting the defense, has the burden of proof. (Labor Code § 5705.) The limitations period for which a claim must be filed is the later of (1) one year from the date of injury, (2) one year from the last provision of disability payments per Labor Code § 4650 et. seq., or (3) one year from the last provision of medical benefits. In reviewing notices and correspondence that defendant sent to applicant, just once, in Exhibit FF on September 17, 2015, was applicant provided information about the one-year statute of limitations to file a claim. However, Exhibit FF is about Labor Code § 4850 benefits, not medical benefits. On September 17, 2015, when Exhibit FF was sent to applicant, his medical treatment was ongoing- he had additional industrial treatment on September 19, 2015. Concerning notice about losing medical benefits, Exhibit FF fails because applicant's treatment was ongoing and he was not

Applicant testified credibly about ongoing eye symptoms and treatment history, supporting tolling of statute of limitations.

From the decision · page 3At trial, applicant testified that in 2021 he went to an optometrist two months after he