ADJ19531062 · June 8, 2026

Defendant failed to comply with the required notice language under AD Rule 9812(e)(3)(A)(2), resulting in tolling of the statute of limitations and estoppel from raising the defense.

From the decision · page 6as defendant failed to check off the box next to the language, we agree with the WCJ that defendant failed to meet its burden of proof as to the application of the statute of limitations. By checking off the boxes of some language but not others, applicant was not properly and clearly made aware of how to obtain an evaluation by a qualified medical evaluator (QME) as required by AD Rule 9812 and as a result, the statute of limitations was tolled.

Defendant failed to check off the required language box in the Notice Regarding Permanent Disability Benefits Denial.

Favours Applicant prevailed

This failure caused the applicant not to be properly informed about how to request a QME evaluation, tolling the statute of limitations and estopping defendant from raising the defense.

From the decision · page 6as defendant failed to check off the box next to the language, we agree with the WCJ that defendant failed to meet its burden of proof as to the application of the statute of limitations. By checking off the boxes of some language but not others, applicant was not properly and clearly made aware of how to obtain an evaluation by a qualified medical evaluator (QME) as required by AD Rule 9812 and as a result, the statute of limitations was tolled.

Released applicant to return to work and discharged from medical care for right shoulder.

From the decision · page 2On September 12, 2019, the Defendant issued a benefit notice: Notice Regarding Permanent Disability Benefits Denial to the Applicant (JOINT EXHIBIT 1, EAMS DOC ID # 61567873). Per the Applicant's primary treating physician, Dr. Michael Cohen, the Applicant was released to return to work and was discharged from medical care with respect to his right shoulder. This benefit notice included language that the Applicant could seek an evaluation by a Qualified Medical Evaluator, and that he needed to notify the adjuster of such an objection within 30 days of the date of receiving the treating doctor's report.

Found 4% whole person impairment and need for future medical treatment for right shoulder injury.

From the decision · page 2No benefits were provided with respect to the Applicant's right shoulder after May 2, 2019. On July 11, 2024, the Applicant filed an Application for Adjudication of Claim for his April 24, 2019 right shoulder injury (JOINT EXHIBIT 3, EAMS DOC ID # 79962429). Workers' Compensation benefits were denied pursuant to the Statute of Limitations. The Applicant was evaluated by AME Dr. Patrick McGahan on May 6, 2024, who found 4% whole person impairment and a need for future medical treatment to cure the effects of the injury (JOINT EXHIBIT 4, EAMS DOC ID # 61567876).

Labor Code section 5705

Burden of proof rests on party asserting affirmative defense (Labor Code section 5705).

Defendant, asserting statute of limitations defense, has burden of proof.

From the decision · page 5It is well established that the burden of proof rests upon the party holding the affirmative

Cal. Code Regs., tit. 8, 9812(e)(3)(A)(2)

Notice requirements under Administrative Director Rule 9812(e)(3)(A)(2) for permanent disability benefits denial notices.

Defendant failed to comply with required notice language, leading to tolling of statute of limitations.

From the decision · page 4We observe that current AD Rule 9812 (Cal. Code. Regs., tit. 8, § 9812) was also in effect in 2019 when defendant served applicant, who was then unrepresented, with the Notice Regarding Permanent Disability Benefits Denial (Notice) on September 12, 2019. AD Rule 9812, subdivision (e)(3), requires that a defendant claiming that no permanent disability exists must provide applicant with the following notice:

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

Employers' failure to provide statutorily required notice estops them from raising statute of limitations defense (Reynolds v. Workmen's Comp. Appeals Bd. (1974) 12 Cal.3d 726).

Defendant estopped from raising statute of limitations defense due to failure to provide proper notice.

From the decision · page 6"Limitations provisions in the [workers'] compensation law must be liberally construed in favor of the employee unless otherwise compelled by the language of the statute, and such enactments should not be interpreted in a manner which will result in a loss of compensation." (Blanchard v. Workers' Comp. Appeals Bd. (1975) 53 Cal.App.3d 590, 595 [40 Cal. Comp. Cases 784] (internal citations omitted).) It is well settled that where the employer has a statutory or regulatory duty to provide notice to the injured worker of a right and fails to do so, the employer is estopped from raising the statute of limitations as a bar to the claim. (Reynolds v. Workmen's Comp. Appeals Bd. (1974) 12 Cal.3d 726.)

Defendant failed to check off the required language box in the Notice Regarding Permanent Disability Benefits Denial, causing applicant not to be properly informed about how to request a QME evaluation.

From the decision · page 6as defendant failed to check off the box next to the language, we agree with the WCJ that defendant failed to meet its burden of proof as to the application of the statute of limitations. By checking off the boxes of some language but not others, applicant was not properly and clearly made aware of how to obtain an evaluation by a qualified medical evaluator (QME) as required by AD Rule 9812 and as a result, the statute of limitations was tolled.