Based upon a stipulated Award of May 27, 2015 it was found that while employed on December 19, 2013 as a tower technician by Pearce Services Inc., Andres Hernandez sustained industrial injury to the left knee causing temporary disability from June 23, 2014 to July 6, 2014, permanent disability of 14%, and the need for further medical treatment.

On August 13, 2015, defendant sent applicant a notice that permanent disability payments were ending because the full amount of the stipulated Award had been paid. The notice sent contained all the information required by Administrative Rule 9812(d). (Cal. Code Regs., tit. 8, § 9812, subd. (d).)

Applicant apparently continued to be provided medical care for his injury on an industrial basis and underwent surgery on October 30, 2018. Defendant reinitiated temporary disability benefits commencing November 3, 2018. On November 14, 2018, defendant sent a notice of resumed temporary disability benefit payments pursuant to Administrative Rule 9812(b) (Cal. Code Regs., tit. 8, § 9812, subd. (b)). Defendant then determined that applicant was entitled to temporary disability benefits at a higher rate pursuant to Labor Code section 4661.5 and sent the appropriate notice on November 28, 2018 pursuant to Administrative Rule 9812(c) (Cal. Code Regs., tit. 8, § 9812, subd. (c).)

On December 17, 2018, defendant sent applicant a notice that temporary disability benefits were ending pursuant to Labor Code section 4656(c)(2) which states that, save exceptions not applicable to the current case, temporary disability indemnity is payable only within five years of the date of injury. Defendant sent applicant a notice that complied with Administrative Rule 9812(d) (Cal. Code Regs., tit. 8, § 9812, subd. (d).)

Additionally, along with the notice that temporary disability was ending, defendant sent a notice pursuant to Administrative Rule 9812(e) (Cal. Code Regs., tit. 8, § 9812, subd. (e)) that applicant’s condition was not yet permanent and stationary and that: “[I]t is too soon to tell if you will have any permanent disability from your injury. I will be checking with your doctor until your condition is permanent and stationary. At that time, your doctor will determine whether you have any permanent disability and if there will be a need for future medical care. I expect to have my information by 3/16/19. I will notify you of the status of permanent disability at that time.”

On February 19, 2019, Hernandez filed a Petition to Reopen alleging that he underwent surgery of his left knee in October of 2018 and that his condition had significantly worsened since the issuance of the stipulated Award. On December 23, 2019 the WCJ found that Hernandez’s Petition to Reopen was barred by the five-year statute of limitations contained in Labor Code section 5410.

After filing a Petition for Reconsideration, the WCAB affirmed the WCJ’s decision in the case of Hernandez v Pearce Services Inc. -ADJ9972218 (May 2025).

Applicant argues that that the statute of limitations should be tolled because he was “misled” by defendant’s claims examiner into not timely filing a petition to reopen. In other contexts, the mere furnishing of benefits without an unequivocal denial in and of itself tolls the statute of limitations.

For instance in McDaniel v. Workers’ Comp. Appeals Bd. (1990) 218 Cal.App.3d 1011 [55 Cal.Comp.Cases 72], the Court of Appeal held that when a defendant provides medical treatment benefits knowing of a potential claim for workers’ compensation benefits, the provision of treatment tolls the one-year limitation period of Labor Code section 5405(c) and triggers the five year period of Labor Code section 5410, running from the date of injury. Only after an explicit unequivocal denial of liability does the statute revert to one year from the denial.

The WCAB noted however that “while McDaniel and similar cases find that the mere furnishing of benefits tolls the one-year statute of limitations found in Labor Code section 5405 for the initial claim of benefits, these claims still remain subject to the five-year statute found in section 5410. While the liberal rules of pleading and construction of the workers’ compensation system militate in favor of tolling of the one-year statute, once five years from the date of injury has elapsed the initial interest favoring an injured worker’s right to present their case on the merits must also be balanced against the interest in finality.”

“As the Supreme Court explained in Nickelsberg v. Workers’ Comp. Appeals Bd. (1991) 54 Cal.3d 288, 299 [56 Cal.Comp.Cases 476], section 5410 does ‘not express a mere concern for barring stale claims. The statute[] express[es] legislative concern for certainty and finality in the determination of compensation benefit obligations.’ “

“Here, there was no legal obligation to inform applicant of the upcoming five-year statute, and, in any case, there was no evidence that the claims representative intentionally withheld this information. Defendant merely paid the legally required benefits and provided the legally required notices.”