Lemon, Dennis

Applicant Dennis Lemon filed a cumulative trauma claim (ADJ1058134) for the period February 2000 to September 2002 against USF&G/Zenith, which the WCJ barred under the section 5405 statute of limitations, finding applicant failed to prove timely filing. On reconsideration, the WCAB held the WCJ misapplied the burden of proof because the statute of limitations is an affirmative defense for which the defendant bears the burden under section 5705. The Board found the WCJ never established a section 5412 date of injury and, more importantly, that under Reynolds the employer (and its insurer standing in its shoes) was estopped from asserting the statute of limitations because neither the bankrupt employer nor the claims administrator provided the statutorily required notices of the right to file a claim. The Board granted reconsideration, rescinded the F&O, substituted a finding that defendant failed to meet its burden, and returned the matter to the trial level for further proceedings. Commissioner Razo dissented, finding applicant filed six years after the CT period and four years after AME notice of causation.