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Ng Kwok was employed as a restaurant manager and waiter by Nu Square Corporation, doing business as Har Lam Kee Restaurant. The owner of the restaurant was King Tak Cheung. Mr. Cheung is the older brother of Kwok’s wife, Yuk Lin Cheung.

On the morning of January 10, 2005, rain was coming into the restaurant dining area. Kwok went out to the backyard area with a ladder to inspect the leak. A few minutes later, Kwok was found lying on the ground unconscious with the ladder next to him. Kwok sustained a brain hemorrhage and was and continues to be paralyzed from the shoulders down. Since the accident, Kwok receives 24-hour medical care.

Ms. Cheung notified Mr. Cheung of Kwok’s accident by way of a phone call the day after it occurred. Mr. Cheung was then in Hong Kong for treatment of an illness.

Ms. Cheung, Kwok’s wife, filed a workers’ compensation claim for Kwok in July 2012, more than seven years after the accident. This came about because Ms. Cheung heard a radio program about workers’ compensation cases and began inquiring with attorneys.

The restaurant was insured for workers’ compensation by Farmers. Kwok’s claim first came to the attention of Farmers in July 2012. Farmers tried to verify coverage but it was difficult to verify the dates of coverage because it was a number of years since the date of injury. Coverage was ultimately confirmed through the Workers’ Compensation Insurance Rating Bureau.

Farmers investigated the claim to determine the owner of the business and the owner of the building. However, only limited information was obtained through the business owner and the owner of the building. The cause of the fall was unknown because no one actually witnessed the fall.

A copy of the application and a DWC-1 Employee’s Claim Form was served on Farmers on July 27, 2012. Farmers also confirmed that it signed a Notice Regarding Denial of Workers’ Compensation Benefits on behalf of Farmers dated March 21, 2013, and that Kwok’s claim was not denied within the 90-day period mandated in section 5402. Accordingly, Farmers agreed that section 5402 triggered the rebuttable presumption that the claim was compensable. However, Farmers did not treat Kwok’s claim as compensable.

The WCJ concluded that Kwok sustained a compensable injury and concluded that the statute of limitations did not bar Kwok’s claim. The WCJ did not address the issue of laches which was raised as an issue in the pre-trial conference statement. Farmers’ contention with respect to laches was that the “carrier was greatly prejudiced by the lengthy delay in filing an Application for Adjudication.”

A petition for reconsideration was denied. The Court of Appeal sustained the WCAB in the published case of Truck Insurance Exchange v WCAB.

Within one working day of receiving notice or knowledge of injury, the employer is required to provide to the employee a claim form and a notice of potential eligibility for workers’ compensation benefits. The WCJ concluded that in this case this “was apparently never done.” If an employer breaches this statutory duty, the limitations period is tolled for the period of time that the employee remains unaware of his rights. (Kaiser Foundation Hospitals v. Workers’ Comp. Appeals Bd. (1985) 39 Cal.3d 57, 60.)

Notice to or knowledge of a workplace injury on the part of the employer is deemed to be notice to or knowledge of the insurer. Since Farmers is deemed to have known of the injury the day after it occurred, Farmers cannot show delay in receiving notice of the claim, which is an essential element of laches