ADJ10027874 · June 29, 2023

The Board found the date of injury under section 5412 to be July 1, 2015, based on the applicant's knowledge and disability concurrence at the time of claim filing, making the claim timely.

From the decision · page 9FINDINGS OF FACT 4. Applicant's date of injury pursuant to Labor Code section 5412 was July 1, 2015.

The QME, Dr. Parviz Galdjie, opined that the applicant's work activities aggravated her right knee condition, constituting an industrial injury AOE/COE, supported by substantial evidence and legal precedent.

From the decision · page 6Here, the QME is clear in his assessment that there was industrial contribution to applicant's knee injury. (Ex. Z, Transcript of the deposition of Parviz Galdjie, M.D., December 8, 2020, at 29:1.) Given the finding of the QME that applicant's employment contributed to the industrial injury, we concur with the WCJ's determination that applicant sustained injury AOE/COE, and will affirm the F&A, accordingly. (South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (2015) 61 Cal.4th 291 [80 Cal.Comp.Cases 489].)

The Board rejected the defense that the injury was caused by normal bodily movements, citing the QME's opinion that work activities aggravated the knee injury and established compensability under California law.

From the decision · page 5Defendant further contends that a finding of injury AOE/COE may not be predicated on normal bodily movements. Defendant avers, "when the injury is the result of `normal bodily movement,' the injury may have `occurred during the course of employment, but did not arise out of it.'" (Petition, at 10:13, citing Bickley v. Industrial Accident Commission (1942) 7 Cal.Comp.Cases 92, 93 [1942 Cal. Wrk. Comp. LEXIS 240].) Noting applicant's long-standing history of right knee injury, defendant observes that the QME "testified that there was nothing in the work activities performed by the Applicant at work that was any different than those performed outside of work in terms of the stress placed on the knee. [Dr. Galdjie] [n]oted the absence of any reports of knee complaints prior to the alleged specific injury of July 2013, as well as a lack of issues with the left knee, which presumably was exposed to the same stressors as the right knee." (Id. at p. 10:22.)

QME opined work activities aggravated the right knee injury

Favours Applicant prevailed

Supported finding of injury arising out of and in the course of employment (AOE/COE)

From the decision · page 6Here, the QME is clear in his assessment that there was industrial contribution to applicant's knee injury. (Ex. Z, Transcript of the deposition of Parviz Galdjie, M.D., December 8, 2020, at 29:1.) Given the finding of the QME that applicant's employment contributed to the industrial injury, we concur with the WCJ's determination that applicant sustained injury AOE/COE, and will affirm the F&A, accordingly. (South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (2015) 61 Cal.4th 291 [80 Cal.Comp.Cases 489].)

Applicant met with attorney and filed claim in 2015

Favours Applicant prevailed

Established knowledge of industrial cause and fixed date of injury under section 5412

From the decision · page 8However, following our review of the record, we observe that applicant met with her attorney in 2015 and caused the instant cumulative trauma claim to be filed. There is no dispute among the parties that the applicant had disability prior to the filing of the claim. That the applicant met with her attorney, and caused the instant cumulative trauma application to be filed, is sufficient under the facts of this case to impute knowledge of the possible relationship between industrial exposure and disability to the applicant.

Dr. Galdjie opined that the applicant's right knee condition was aggravated by work activities such as walking, squatting, and kneeling, constituting an industrial injury AOE/COE. He apportioned 70% of the injury to prior injuries, aging, and natural progression but acknowledged work activities contributed to the current pathology.

The QME's opinion was relied upon as substantial evidence supporting compensability of the injury arising out of and in the course of employment.

From the decision · page 2The parties selected Parviz Galdjie, M.D., as the orthopedic QME. Dr. Galdjie issued an

Labor Code section 4060

Labor Code section 4060 medical evaluation procedure for compensability disputes

QME selected to determine compensability of injury

From the decision · page 4Defendant contends the finding of injury AOE/COE is not supported in the record, noting that there "are no reports of a primary treating physician or any other treating physician that establish a work-related injury on a cumulative trauma basis." (Petition, at 9:26.) However, we observe that Dr. Galdjie was selected as the QME pursuant to the dispute resolution protocols of section 4060, which applies to disputes over the compensability of an injury, and provides that in represented cases, "a medical evaluation to determine compensability shall be obtained only by the procedure provided in Section 4062.2." (Lab. Code, § 4060.) The QME is thus tasked with determining the compensability of the claim, and the lack of a corresponding report finding injury authored by a treating physician is not a prerequisite to a finding of compensability.

Lumbermen's Mut. Casualty Co. v. Indus. Acci. Comm. (1946) 29 Cal.2d 492

Normal bodily movement doctrine does not require unusual strain for compensability

Compensability established despite normal bodily movements due to aggravation of pre-existing condition by work activities

From the decision · page 6Where an employee suffers a heart attack brought on by strain and over-exertion incident to his employment the injury or death is compensable, even though the idiopathic condition previously existed, and no traumatic injury is necessary. [Citations omitted.] That it is not required that the exertion or strain be necessarily unusual or other than that occurring in the normal course of the employment is evident. In Liberty Mut. Ins. Co. v. Industrial Acc. Com. (1946) 73 Cal.App.2d 555 [11 Cal.Comp.Cases 66] at page 563, the court making a comprehensive review of the authorities in regard to the aggravation of a previous condition caused by the employment states: "The cases do not, and in the nature of things cannot, stand for the proposition that the exertion must be unusual before it is compensable.... In such a case whether the strain is a "usual" or an "unusual" one is only one of the facts involved. If there was strain, even though the strain was a strain usual to that type of employment, the injury or death is compensable if there is competent substantial evidence to show the causal connection between that strain and the collapse."

Labor Code section 5412

Date of injury in cumulative trauma cases fixed by knowledge and disability concurrence

Date of injury fixed as July 1, 2015 based on claim filing and knowledge

From the decision · page 9FINDINGS OF FACT 4. Applicant's date of injury pursuant to Labor Code section 5412 was July 1, 2015.

QME's opinion that work activities aggravated the knee injury

From the decision · page 6Here, the QME is clear in his assessment that there was industrial contribution to applicant's knee injury. (Ex. Z, Transcript of the deposition of Parviz Galdjie, M.D., December 8, 2020, at 29:1.) Given the finding of the QME that applicant's employment contributed to the industrial injury, we concur with the WCJ's determination that applicant sustained injury AOE/COE, and will affirm the F&A, accordingly. (South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (2015) 61 Cal.4th 291 [80 Cal.Comp.Cases 489].)

Applicant met with attorney in 2015 and filed claim, establishing knowledge of industrial cause

From the decision · page 8However, following our review of the record, we observe that applicant met with her attorney in 2015 and caused the instant cumulative trauma claim to be filed. There is no dispute among the parties that the applicant had disability prior to the filing of the claim. That the applicant met with her attorney, and caused the instant cumulative trauma application to be filed, is sufficient under the facts of this case to impute knowledge of the possible relationship between industrial exposure and disability to the applicant.