California Labor Code § 5409

How panels applied this section

Newest released decisions whose legal-standard extraction named this section. Each quotes the passage and links to the official PDF. Unofficial guide — not legal advice.

• ADJ18371631 · 2026-03-13 · Santa Rosa District Office§ 5409

  Determinative passage · p.16III DISCUSSION a. APPLICANT'S CLAIM IS NOT BARRED BY THE STATUTE OF LIMITATIONS The statute of limitations is an affirmative defense. (Labor Code section 5409.) The employer has the burden to establish either that written notice was given to the employee or that the employee had actual notice of his workers' compensation rights. (Sidders v. WCAB (Moore) (1988) 53 CCC 445, 452; See also Labor Code sec. 138.3 and 5402.) If the employer cannot prove that it provided an employee with notice of workers' compensation rights and procedures, it may not rely on the affirmative defense of the statute of limitations to defeat an employee's claim. (R. W. Colgate, dba California Tile Co. v. WCAB (Sanchez) (2013) 78 CCC 266 (writ denied).) The employer bears the burden of proving actual knowledge. (Kaiser Foundation Hospitals, Permanente Medical Group v. WCAB (Martin) (1985) 50 CCC 411, 41[2].) Actual knowledge is knowledge given directly to, or received personally by, a party. (CIGA v. WCAB (Carls) (2008) 73 CCC 771, 779.) Constructive knowledge (awareness the employee should have possessed) is not sufficient. (Id.)

  The WCJ applied this to reject defendant's statute of limitations defense due to lack of proof of actual knowledge.

  Official decision · page 16 →
• ADJ20170253 · 2025-12-22 · Riverside District Office§ 5409

  Determinative passage · p.7III. The running of the statute of limitations is an affirmative defense, and the burden of proving it is on the party opposing the claim. (Lab. Code, § 5409; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Martin) (1985) 39 Cal.3d 57, 67, fn. 8 [50 Cal.Comp.Cases 411].) The burden is on defendant to show when the statute of limitations began to run, "starting from any and all three points designated [in Labor Code section 5405]." (Colonial Ins. Co. v. Industrial Acc. Com. (Nickles) (1945) 27 Cal.2d 437, 441 [10 Cal.Comp.Cases 321].) The three points designated in

  The Board deferred ruling on the statute of limitations defense pending further medical evaluation and record development.

  Official decision · page 7 →
• ADJ19613976 · 2025-11-10 · Los Angeles District Office§ 5409

  Determinative passage · p.4II. Decisions of the Appeals Board "must be based on admitted evidence in the record." (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc).) Furthermore, decisions of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) An adequate and complete record is necessary to understand the basis for the WCJ's decision. (Lab. Code, § 5313; see also Cal. Code Regs., tit. 8, § 10761.) The running of the statute of limitations is an affirmative defense, and therefore, the burden of proof as to whether an application is barred by the statute of limitations rests with defendant. (§ 5409, 5705; see City of Fresno v. Workers' Comp. Appeals Bd. ("Johnson") (1985) 163 Cal.App.3d 467, 471 [50 Cal.Comp.Cases 53].) The applicable statute of limitations in death cases is section 5406, which states: (a) Except as provided in Section 5406.5, 5406.6, or 5406.7, the period within which may be commenced proceedings for the collection of the benefits provided by Article 4 (commencing with Section 4700) of Chapter 2 of Part 2 is one year from:

  The Board applied this standard to find that defendant did not meet its burden to establish the statute of limitations bar.

  Official decision · page 4 →
• ADJ9198656 · 2025-07-07 · Santa Barbara District Office§ 5409

  Determinative passage · p.4To the extent that Zurich also now raises the running of the statute of limitations of section 5405 for the first time, we agree with the PWCJ's observation that the affirmative defense is not timely raised. (Lab. Code, § 5409 ["The running of the period of limitations prescribed by this chapter is an affirmative defense and operates to bar the remedy and not to extinguish the right of the employee. Such defense may be waived. Failure to present such defense prior to the submission of the cause for decision is a sufficient waiver."]; see also Memorial Hospital Assoc. v. Workers' Comp. Appeals Bd. (Caldwell) (1995) 60 Cal.Comp.Cases 779 (writ denied) [statute of limitations waived by failing to raise the defense at mandatory settlement conference]; Griffith v. Workers' Comp. Appeals Bd. (1989) 209 Cal.App.3d 1260, 1265 [54 Cal.Comp.Cases 145, 148]) [issue not raised at trial level is waived].) Even were this not the case, we observe that applicant continued to receive authorized medical treatment and indemnity through 2013 when she filed the instant applications. (See, e.g., Ex. 11, report of AME Chester Hasday, M.D., dated November 11, 2019, at pp. 4, 57.) As such, we find Zurich's arguments regarding the applicability of the statute of limitations to be unpersuasive. (See Lab. Code, § 5405(b)-(c).)

  Applied to reject Zurich's statute of limitations defense as untimely raised and waived.

  Official decision · page 4 →
• ADJ13428207 · 2024-11-18 · Los Angeles District Office§ 5409

  Determinative passage · p.6With respect to the finding that applicant's claim is barred by the five-year statute of limitations under section 5410, we note that the defense of statute of limitations is an affirmative one. Defendant bears the burden of proving same. (Lab. Code, § 5409; Kaiser Found. Hosps. Permanente Medical Group v. Workers' Comp. Appeals Bd. (1985) 39 Cal.3d 57, 67, fn. 8 [50 Cal.Comp.Cases 411] ["The running of the statute of limitations is an affirmative defense (§ 5409), and the burden of proving it has run, therefore, is on the party opposing the claim."].) On this existing record, it appears that the defendant has failed to prove that the filing of the petition to reopen is untimely.

  On this record, defendant failed to prove the petition to reopen was untimely, so the matter was remanded.

  Official decision · page 6 →
• ADJ11704922 · 2024-08-29 · San Francisco District Office§ 5409

  Determinative passage · p.62. Amending the Pleadings and the Statute of Limitations Next, defendant argues that applicant's amending the pleadings to conform with the proof violates the statute of limitations. We do not agree. The running of the statute of limitations is an affirmative defense, and therefore, the burden of proof as to whether an application for adjudication is barred by the statute of limitations rests with defendant, (§ 5409, 5705; see City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal. App. 3d 467, 471 [209 Cal. Rptr. 463, 50 Cal. Comp. Cases 53].) 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 sections 4650 et. seq., or (3) one year from the last provision of medical benefits. (Ibid.) Labor Code section 5709 states that "No informality in any proceeding or in the manner of taking testimony shall invalidate any order, decision, award, or rule made and filed as specified in this division..." (§ 5709.) Failure to comply with the rules as to details is not jurisdictional.

  Amendments to pleadings to conform to proof do not violate statute of limitations; burden of proof on limitations rests with defendant.

  Official decision · page 6 →
• ADJ8259453 · 2024-05-09 · Fresno District Office§ 5409

  Determinative passage · p.4Turning to the merits of the Findings, Award and Order in ADJ8261355, and based upon our review of the record and applicable law, we find merit in applicant's contention that the WCJ erred in placing the burden of proof on applicant to show that his claim of cumulative trauma injury is not barred by the Statute of Limitations. Rather, the burden of proof is on defendant to show the claim is barred by the Statute of Limitations. We conclude that defendant has failed its burden of proof. As our Decision After Reconsideration, we will rescind the Findings, Award and Order in ADJ8261355 and replace it with Findings consistent with the above conclusion.

  Defendant failed to meet burden to prove claim barred by Statute of Limitations.

  Official decision · page 4 →
• ADJ17110321 · 2023-12-18 · Sacramento District Office§ 5409

  Determinative passage · p.3Further, the relevant statute of limitations for filing a workers' compensation claim is one year from the date of injury. (Lab. Code, § 5405(a).) The running of the period of limitations is an affirmative defense; the burden of proving it has run, therefore, is on the party opposing the claim. (Lab. Code, § 5409; Kaiser Found. Hosps. Permanente Medical Group v. Workers' Comp. Appeals Bd. (1985) 39 Cal.3d 57, 67, fn. 8 [50 Cal.Comp.Cases 411].)

  Applied to assign burden of proof on statute of limitations defense.

  Official decision · page 3 →