ADJ10356751 · June 12, 2024

The Board amended the date of injury to April 7, 2016, based on the medical report and record evidence.

From the decision · page 20*** 6. The issue of permanent disability is deferred. 7. The issue of apportionment is deferred. 8. Applicant is in need of further medical treatment to cure or relieve from the effects of industrial injury. 9. The issue of attorney's fees is deferred. 10. The date of injury under Labor Code section 5412 is April 7, 2016.

The Board agreed with the WCJ's findings based on Dr. Brazina's opinion and the entire record that applicant sustained industrial injury to her neck, back and left shoulder, deferring injury to other body parts for further development.

From the decision · page 16We disagree with defendant's contention that Dr. Brazina's February 14, 2017 report limits the industrial injury to applicant's cervical and lumbar spine and left shoulder set forth by the "Diagnoses." As we have explained, Dr. Brazina's report indicates that applicant should be provided heel cups for her plantar fasciitis on an industrial basis even though it is reported under "Work Restrictions" and not "Diagnoses." Therefore, Dr. Brazina's report does not limit the industrial injury to applicant's cervical and lumbar spine and left shoulder. (Place, supra, 3 Cal.3d at p. 378; Garza, supra, 3 Cal.3d at pp. 317-319; Escobedo, supra, 70 Cal.Comp.Cases at pp. 620- 621.)

The Board agreed with the WCJ that applicant was temporarily disabled and entitled to temporary disability indemnity payments from April 7, 2016 to December 1, 2016, based on Dr. Kohanim's reports and the record evidence.

From the decision · page 18Dr. Kohanim's reports regarding applicant's temporary disability status are consistent with the overall record and substantial evidence that applicant was temporarily disabled while undergoing treatment and healing from the industrial injury from April 7, 2016 until permanent and stationary on December 1, 2016. (Garza, supra, 3 Cal.3d at pp. 317-319; Skelton, supra, 39 Cal.App.5th at pp. 1105-1107; Huston, supra, 95 Cal.App.3d at pp. 868, 870.) Accordingly, we agree with the WCJ's finding that applicant was temporarily disabled and entitled to the temporary disability indemnity payments awarded from April 7, 2016 through December 1, 2016.

Applicant sustained industrial injury to neck, back and left shoulder

Favours Applicant prevailed

This finding was based on Dr. Brazina's medical opinion and the entire record, leading to affirmance of injury to these body parts.

From the decision · page 16We disagree with defendant's contention that Dr. Brazina's February 14, 2017 report limits the industrial injury to applicant's cervical and lumbar spine and left shoulder set forth by the "Diagnoses." As we have explained, Dr. Brazina's report indicates that applicant should be provided heel cups for her plantar fasciitis on an industrial basis even though it is reported under "Work Restrictions" and not "Diagnoses." Therefore, Dr. Brazina's report does not limit the industrial injury to applicant's cervical and lumbar spine and left shoulder. (Place, supra, 3 Cal.3d at p. 378; Garza, supra, 3 Cal.3d at pp. 317-319; Escobedo, supra, 70 Cal.Comp.Cases at pp. 620- 621.)

Applicant's date of injury under Labor Code section 5412 is April 7, 2016

Favours Applicant prevailed

The Board amended the date of injury to April 7, 2016 based on medical reports and record evidence, affecting the timeliness and compensability of the claim.

From the decision · page 20*** 6. The issue of permanent disability is deferred. 7. The issue of apportionment is deferred. 8. Applicant is in need of further medical treatment to cure or relieve from the effects of industrial injury. 9. The issue of attorney's fees is deferred. 10. The date of injury under Labor Code section 5412 is April 7, 2016.

Applicant was temporarily disabled from April 7, 2016 to December 1, 2016

Favours Applicant prevailed

Based on Dr. Kohanim's reports and record evidence, the Board affirmed temporary disability entitlement for this period.

From the decision · page 18Dr. Kohanim's reports regarding applicant's temporary disability status are consistent with the overall record and substantial evidence that applicant was temporarily disabled while undergoing treatment and healing from the industrial injury from April 7, 2016 until permanent and stationary on December 1, 2016. (Garza, supra, 3 Cal.3d at pp. 317-319; Skelton, supra, 39 Cal.App.5th at pp. 1105-1107; Huston, supra, 95 Cal.App.3d at pp. 868, 870.) Accordingly, we agree with the WCJ's finding that applicant was temporarily disabled and entitled to the temporary disability indemnity payments awarded from April 7, 2016 through December 1, 2016.

Dr. Brazina opined that applicant sustained industrial injury to her neck, back and left shoulder, and recommended heel cups for plantar fasciitis on an industrial basis.

The Board relied on Dr. Brazina's opinion and the entire record to find industrial injury to the neck, back and left shoulder.

From the decision · page 16We disagree with defendant's contention that Dr. Brazina's February 14, 2017 report limits the industrial injury to applicant's cervical and lumbar spine and left shoulder set forth by the "Diagnoses." As we have explained, Dr. Brazina's report indicates that applicant should be provided heel cups for her plantar fasciitis on an industrial basis even though it is reported under "Work Restrictions" and not "Diagnoses." Therefore, Dr. Brazina's report does not limit the industrial injury to applicant's cervical and lumbar spine and left shoulder. (Place, supra, 3 Cal.3d at p. 378; Garza, supra, 3 Cal.3d at pp. 317-319; Escobedo, supra, 70 Cal.Comp.Cases at pp. 620- 621.)

Dr. Trainor diagnosed nonindustrial right heel strain and possible plantar fasciitis and referred applicant to private physician for further treatment.

The Board disagreed with Dr. Trainor's conclusion that the right heel and foot injury and treatment were nonindustrial due to lack of explanation.

From the decision · page 11plantar fasciitis and treatment are nonindustrial was not explained by Dr. Trainor in the industrial clinic reports as reported by the WCJ. (Escobedo v. Marshalls (Escobedo) (2005) 70 Cal.Comp.Cases 604, 620-621.) Therefore, we disagree with defendant's contention that applicant's medical records and Dr. Brazina's report establish that applicant's right heel and foot injury and treatment are nonindustrial.

Dr. Kohanim reported applicant was temporarily disabled and limited to modified work due to industrial injury, and supported temporary disability indemnity payments from April 7, 2016 to December 1, 2016.

The Board found Dr. Kohanim's reports consistent with the record and substantial evidence supporting temporary disability.

From the decision · page 18Dr. Kohanim's reports regarding applicant's temporary disability status are consistent with the overall record and substantial evidence that applicant was temporarily disabled while undergoing treatment and healing from the industrial injury from April 7, 2016 until permanent and stationary on December 1, 2016. (Garza, supra, 3 Cal.3d at pp. 317-319; Skelton, supra, 39 Cal.App.5th at pp. 1105-1107; Huston, supra, 95 Cal.App.3d at pp. 868, 870.) Accordingly, we agree with the WCJ's finding that applicant was temporarily disabled and entitled to the temporary disability indemnity payments awarded from April 7, 2016 through December 1, 2016.

Labor Code section 3600(a)(10)

Labor Code section 3600(a)(10) regarding claims filed after notice of termination or layoff

The Board applied this statute to determine exceptions to bar on claims filed after layoff, including notice of injury and medical records evidence.

From the decision · page 9Labor Code2 section 3600(a)(10) provides in part: Except for psychiatric injuries governed by subdivision (e) of Section 3208.3, where the claim for compensation is filed after notice of termination or layoff, including voluntary layoff, and the claim is for an injury occurring prior to the time of notice of termination or layoff, no compensation shall be paid unless the employee demonstrates by a preponderance of the evidence that one or more of the following conditions apply: (A) The employer has notice of the injury, as provided under Chapter 2 (commencing with Section 5400), prior to the notice of termination or layoff. (B) The employee's medical records, existing prior to the notice of termination or layoff, contain evidence of the injury... (D) The date of injury, as specified in Section 5412, is subsequent to the date of the notice of termination or layoff.

Labor Code section 5412

Date of injury for cumulative injury is when employee knew or should have known disability was caused by employment

The Board applied this standard to amend the date of injury to April 7, 2016 based on medical and testimonial evidence.

From the decision · page 20*** 6. The issue of permanent disability is deferred. 7. The issue of apportionment is deferred. 8. Applicant is in need of further medical treatment to cure or relieve from the effects of industrial injury. 9. The issue of attorney's fees is deferred. 10. The date of injury under Labor Code section 5412 is April 7, 2016.

Gonzales v. Workers' Comp. Appeals Bd. (1998) 68 Cal.App.4th 843

Eligibility for temporary disability requires earning capacity and ability to work

The Board applied this case to affirm temporary disability from April 7, 2016 to December 1, 2016 based on medical opinion and record evidence.

From the decision · page 18Dr. Kohanim's reports regarding applicant's temporary disability status are consistent with the overall record and substantial evidence that applicant was temporarily disabled while undergoing treatment and healing from the industrial injury from April 7, 2016 until permanent and stationary on December 1, 2016. (Garza, supra, 3 Cal.3d at pp. 317-319; Skelton, supra, 39 Cal.App.5th at pp. 1105-1107; Huston, supra, 95 Cal.App.3d at pp. 868, 870.) Accordingly, we agree with the WCJ's finding that applicant was temporarily disabled and entitled to the temporary disability indemnity payments awarded from April 7, 2016 through December 1, 2016.

Applicant's testimony about physical complaints and use of wrist braces at work

From the decision · page 15Defendant also contends that applicant knew that she had compensable disability caused by work before she was laid off because applicant testified that she knew that her physical complaints were related to her job duties, and that she took approximately five days off work for her physical complaints. However, her testimony did not specify the physical complaints which led her to take days off from work. Her knowledge of physical complaints and compensable disability caused by work would not be established if she took days off for complaints that the WCJ found nonindustrial. (Carls, supra, 163 Cal.App.4th at pp. 862-863; Rodarte, supra, 119 Cal.App.4th at pp. 1003-1006; Johnson, supra, 163 Cal.App.3d at pp. 471-473.) Defendant further contends that applicant's use of wrist braces at work is additional evidence of compensable disability. However, as we have explained, there is no substantial evidence that applicant took days off from work or had modified duties, treatment by a doctor, or compensable disability due to her wrists or hands. (Carls, supra, 163 Cal.App.4th at pp. 862-863; Rodarte, supra, 119 Cal.App.4th at pp. 1003-1006; Johnson, supra, 163 Cal.App.3d at pp. 471-473.)

Medical records and treatment for right heel and foot injury before layoff

From the decision · page 11We also agree with the WCJ's Report that applicant apparently informed Omega about the right heel and foot injury due to work and was referred to the industrial clinic for treatment, and that this claim is not barred because Omega had notice of the injury before the layoff under the exception in section 3600(a)(10)(A). (Brown, supra, 66 Cal.Comp.Cases 1232.) Moreover, applicant's medical records indicate that she received treatment for the right heel and foot injury before the layoff, so that the exception in section 3600(a)(10)(B) applies. We note that this exception applies even if the medical records do not show that applicant received treatment for her right heel and foot on an industrial basis, because causation may be established by medical opinion from Dr. Brazina or another physician that is substantial evidence. (Escobedo, supra, 70 Cal.Comp.Cases at pp. 620-621; Brown, supra, 66 Cal.Comp.Cases 1232; Beneteau, supra, 63 Cal.Comp.Cases 1515; Marquez, supra, 61 Cal.Comp.Cases 408.)