1 WORKERS' COMPENSATION APPEALS BOARD

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1 1 WORKERS' COMPENSATION APPEALS BOARD 2 STATE OF CALIFORNIA 3 4 JAMES AZBILL, Case No. ADJ (Redding District Office) 5 Applicant, OPINION AND ORDER GRANTING RECONSIDERATION 6 vs. AND DECISION AFTER RECONSIDERATION 7 FATORS MOTORCYCLES; STATE COMPENSATION INSURANCE FUND, 8 Defendants Defendant, Fators Motorcycles, by and through its insurer, State Compensation Insurance Fund, 12 seeks reconsideration of the Findings and Order, issued February 14, 2013, in which a workers' 13 compensation administrative law judge (WCJ) found applicant James Azbill's claim of cumulative 14 trauma over the period ending May 12, 2010, while employed as a lead mechanic by Fators Motorcycles 15 is not barred by the statute of limitations. The WCJ further found applicant is entitled to the presumption 16 of compensability under Labor Code section 5402(b), subject to submission of rebuttal evidence by 17 defendant. All other issues were deferred. 18 Defendant contends the WCJ erred in both determinations, arguing first that applicant is not 19 entitled to the presumption of compensability under Labor Code section 5402(b), as he never filed a 20 DWC-1 claim form to trigger the 90 day period for defendant to accept or deny the claim. Second, 21 defendant contends applicant's claim is barred by the one year statute of limitations, arguing that the 22 Application for Adjudication of Claim is untimely on its face, having been filed more than one year after 23 the claimed period of cumulative trauma injury. Defendant further asserts there is no evidence that 24 applicant lacked knowledge of the industrial nature of his injury. Applicant has filed an answer to 25 defendant's petition. 26 For the reasons set forth below, we will affirm the WCJ's finding that applicant's claim is not 27 barred by the statute of limitations, but will find applicant is not entitled to the presumption of

2 1 compensability under Labor Code section I. 3 Applicant claims to have sustained an industrial cumulative trauma injury to his left shoulder and 4 left carpal tunnel syndrome over the period ending May 12, 2010, while employed as a lead mechanic by 5 Fators Motorcycles. 6 A pre-trial conference was held on December 13, 2012, at which time the issues were set for trial. 7 The first issue was whether applicant is entitled to the presumption of compensability under Labor Code 8 section 5402(b), based upon the assertion that liability was "not denied within 90 days of claim being 9 filed." Second, defendant claimed that applicant's cumulative trauma injury is barred by the statute of 10 limitations. These issues were submitted for decision, without testimony, on the parties' trial briefs, on 11 the Application package and proof of service dated November 14, 2011, and defendant's request for 12 judicial notice of pleadings in three other cases. 13 The record contains applicant's Application for Adjudication of Claim on November 14, 2011, in 14 which he claimed he sustained a cumulative trauma injury to his left shoulder and wrist, with carpal 15 tunnel syndrome being a compensable consequence of his left shoulder injury. The record does not 16 contain a DWC-1 claim form. 17 The WCJ issued her Findings and Order and Opinion on Decision on February 14, 2013, based 18 upon the parties' trial briefs, the "uncontested facts contained therein," and the applicant's Application 19 for Adjudication of Claim. 20 As to the issue of the statute of limitations, the WCJ noted the issue would be determined by facts 21 establishing the date applicant first suffered disability from his cumulative trauma injury and the date he 22 knew or reasonably should have known it was related to his work. Based upon the uncontested 23 representation that applicant first sought advice from legal counsel with regard to his claim of cumulative 24 trauma on October 31, 2011, the WCJ found that to be the date of injury. The filing of the Application for 25 Adjudication of Claim was on November 14, In the absence of any evidence.to establish a different 26 date of injury based upon applicant's knowledge of the industrial source of his disability, the WCJ 27 concluded defendant failed to carry its the burden to establish the affirmative defense that applicant's AZBILL, James 2

3 1 claim was untimely. 2 As to the issue of applicant's entitlement to the presumption that his cumulative trauma injury is 3 compensable, the WCJ found the presumption applied because the Application for Adjudication of Claim 4 gave defendant notice of applicant's claim and defendant failed to respond to the Application and deny 5 the claim within 90 days. The WCJ noted that defendant chose to treat applicant's claim of cumulative 6 trauma as the same claim as his previously filed specific injury, but that they did so at their peril. The 7 WCJ found the filing of a claim form was not required since defendant received notice of applicant's 8 claim of cumulative trauma injury by way of the filing of the Application for Adjudication of Claim. 9 II. 10 With regard to defendant's assertion that applicant's claim is barred by the statute of limitations, 11 we concur with the WCJ's discussion of this issue on pages 2 and 3 of her Report and Recommendation 12 on Petition for Reconsideration, issued March 19, 2013, which we hereby adopt and incorporate as part 13 of our decision after reconsideration. Defendant clearly had notice at the pre-trial conference that this 14 issue was being considered, and defendant made no effort to establish its affirmative defense. 15 III. 16 However, we do not concur with the WCJ's finding that applicant's service of an Application for 17 Adjudication of Claim is the equivalent of the filing of the claim form mandated by Labor Code section (b), and shall grant reconsideration to amend the Findings and Order to find applicant is not entitled 19 to the presumption of compensability. 20 In order for the presumption of compensability to apply, an applicant must file a claim form 21 apprising the employer of his or her claim of injury. 22 Labor Code section 5402(b) provides that: 23 "If liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under 24 this division. The presumption of this subdivision is rebuttable only by evidence discovered subsequent to the 90-day period." 25 The filing of a claim form is a prerequisite for application of the presumption of compensability, 26 as the 90-day period for denial of liability runs from the date the employee files the form, not from the 27 AZBILL, James 3

4 1 date the employer receives notice or knowledge of the injury or claimed injury. (Honeywell v. Workers' 2 Comp. Appeals Bd. (Wagner) (2005) 35 Cal.4th 24 [70 Cal.Comp.Cases 97].) As noted in Wagner, "it is 3 up to the employee whether and when to initiate a claim for compensation by filing the prescribed form 4 with the employer." (70 CaLComp.Cases at 102, underlining added.) 5 It is the filing of a claim form that triggers the potential applicability of the presumption. Section requires a claim form be provided to an employee within one working day of an employer's notice 7 or knowledge of injury. The Division of Workers' Compensation drafted rules to implement this 8 statutory requirement and created the DWC-I Claim Form. (Administrative Director's Rules through [8 Cal. Code Regs., ].) That this claim form, and not an Application for 10 Adjudication of Claim, is the mandated method of providing notice of a claim of injury is evidenced by 11 the fact that the legislature also directed that the claim form contain specific warnings against fraudulent 12 attempts to obtain workers' compensation benefits. (Labor Code section ) Such warnings are not 13 required to be included on an Application for Adjudication of Claim. 14 Additionally, contrary to the express provision in Section 5401, there is no statutory requirement 15 that the employer provide applicant with a claim form after the filing of an Application for Adjudication 16 of Claim. The filing of an Application for Adjudication of Claim is the method for invoking the 17 jurisdiction of the Workers' Compensation Appeals Board for resolving all disputed issues. It would 18 serve no additional purpose to mandate the provision of a claim form upon receipt of an Application for 19 Adjudication of Claim. 20 Accordingly, we shall grant reconsideration to amend the Findings and Order to find applicant is 21 not entitled to the presumption of compensability under Labor Code section 5402(b), but shall otherwise 22 affirm the WCJ's determination. 23 For the foregoing reasons, 24 IT IS ORDERED that the March 8, 2013 Petition for Reconsideration be, and hereby is, 25 GRANTED, and as our Decision After Reconsideration, the Findings and Order, issued February 14, , is AMENDED as follows: 27 /// AZBILL, James 4

5 I 2. FINDINGS OF FACT 3 4. Applicant did not file a DWC-1 Claim Form and is not entitled to the presumption of 4 compensability under Labor Code section 5402(b) Defendant is not required to rebut the presumption. 6 ORDER 7 IT IS ORDERED that this matter be returned to the trial level for further proceedings on all 8 deferred issues. 9 WORKERS' COMPENSATION APPEALS BOARD " 12 I CONCUR, ONSO ý. MORESI lf lra EE LOE 1MA ERGUERRI SWE N Y DATED AND FILED AT SAN FRANCISCO, CALIFORNIA 22 JMY SERVICE MADE ON THE ABOVE DATE ON THE PERSONS 24 LISTED ADDRESSES BELOW SHOWN AT THEIR ON THE CURRENT OFFICIAL ADDRESS RECORD. 25 JAMES AZBILL 26 MATTHEW WATKINS STATE COMPENSATION INSURANCE FUND 27 I AZ; LL, James 5

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