ADJ10625118 — California WCAB decision

ADJ10625118 · September 3, 2021

Petition for Reconsideration granted in part; WCJ's finding of industrial injury in the specific injury case (ADJ10625118) affirmed; issue of cumulative injury (ADJ10625119) deferred for further development; statute of limitations findings affirmed; award deleted as no benefits were awarded.

Issues decided

Medical opinions weighed

Authorities named

District office

Fresno

What the panel ordered

Defendant sought reconsideration of the WCJ's Findings of Fact and Award of June 17, 2021, challenging findings of industrial injury and statute of limitations issues.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

AOE/COEDeferredright upper extremity · back · neck · bilateral lower extremities · jaw · teeth · psyche · hernia

The WCAB found no substantial medical evidence explaining how the cumulative injury caused disability or need for medical treatment, deferring the issue for further development.

From the decision · page 6Cal.Comp.Cases 1687], a "medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely his or her conclusions. [Citation.]." Accordingly, we will grant reconsideration and defer the issue of cumulative industrial injury so that the reporting physician can explain the mechanism of injury and how it caused a need for medical treatment or disability.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant testified he reported injury to supervisors and requested medical treatment immediately after the forklift incident on September 1, 2015.

Favours Applicant prevailed

Credibility of applicant's testimony led to finding employer had actual knowledge of injury, triggering duty to provide claim form and tolling statute of limitations.

From the decision · page 4In this case, the WCJ believed the applicant's testimony that he reported his injury to his supervisors, and disbelieved the defendant's witnesses' testimony to the contrary. (Report at p. 4.) A WCJ's credibility determinations are "entitled to great weight." (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) The defendant thus had the duty pursuant to Labor Code section 5401 to give applicant the DWC-1 form containing notice of his workers' compensation rights, and the statute of limitations was tolled until he was given the form or otherwise obtained actual knowledge of his rights. Applicant did not receive notice of his workers' compensation rights until October 11, 2016. Thus, the filing of his Application for Adjudication in the specific injury case on October 27, 2016, less than three weeks after obtaining the required notices, was timely.

Defendant failed to provide substantial medical evidence explaining how cumulative injury caused disability or need for treatment.

Favours Defendant prevailed

Lack of substantial evidence led to deferral of cumulative injury issue for further development.

From the decision · page 6Cal.Comp.Cases 1687], a "medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely his or her conclusions. [Citation.]." Accordingly, we will grant reconsideration and defer the issue of cumulative industrial injury so that the reporting physician can explain the mechanism of injury and how it caused a need for medical treatment or disability.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code sections 5401, 5405, 5409; Martin v. WCAB (1985) 39 Cal.3d 57

Statute of limitations tolling due to employer's failure to provide DWC-1 claim form after injury report.

Employer's failure to notify injured employee tolled statute until employee received claim form or actual knowledge of rights.

From the decision · page 3The running of the statute of limitations is an affirmative defense, and the burden of proving it is on the party opposing the claim. (Lab. Code, § 5409; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Martin) (1985) 39 Cal.3d 57, 67, fn. 8 [50 Cal.Comp.Cases 411].) The burden is on defendant to show when the statute of limitations began to run, "starting from any and all three points designated [in Labor Code section 5405]." (Colonial Ins. Co. v. Industrial Acc. Com. (Nickles) (1945) 27 Cal.2d 437, 441 [10 Cal.Comp.Cases 321].) The three points designated in section 5405 are date of injury (Lab. Code, § 5405, subd. (a)); the last payment of disability indemnity (Lab. Code, § 5405, subd. (b)); and the last date on which medical treatment benefits were furnished (Lab. Code, § 5405, subd. (c).) In this case, it appears that applicant was never provided with disability indemnity or medical treatment. Accordingly, absent any tolling, the relevant date for the running of the statute of limitations is the September 1, 2015 date of injury.

Labor Code section 5412

Date of injury for cumulative injury is when employee first suffered disability and knew or should have known it was caused by employment.

Defendant failed to show when statute began to run for cumulative injury claim, so claim was timely filed.

From the decision · page 4Turning to the issue of statute of limitations on the cumulative injury claim, we reiterate that it is defendant's burden to show when the statute of limitations began to run, "starting from any and all three points designated [in Labor Code section 5405]." (Nickles, supra, 27 Cal.2d at p. 441.) The date of injury in cumulative injury cases is "that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's credible testimony that he reported injury to supervisors and requested medical treatment immediately after the forklift incident.

From the decision · page 4In this case, the WCJ believed the applicant's testimony that he reported his injury to his supervisors, and disbelieved the defendant's witnesses' testimony to the contrary. (Report at p. 4.) A WCJ's credibility determinations are "entitled to great weight." (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) The defendant thus had the duty pursuant to Labor Code section 5401 to give applicant the DWC-1 form containing notice of his workers' compensation rights, and the statute of limitations was tolled until he was given the form or otherwise obtained actual knowledge of his rights. Applicant did not receive notice of his workers' compensation rights until October 11, 2016. Thus, the filing of his Application for Adjudication in the specific injury case on October 27, 2016, less than three weeks after obtaining the required notices, was timely.

Testimony and credibilityfavours Applicant prevailed

Defendant's witnesses' testimony denying applicant reported injury was disbelieved by the WCJ.

From the decision · page 4In this case, the WCJ believed the applicant's testimony that he reported his injury to his supervisors, and disbelieved the defendant's witnesses' testimony to the contrary. (Report at p. 4.) A WCJ's credibility determinations are "entitled to great weight." (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) The defendant thus had the duty pursuant to Labor Code section 5401 to give applicant the DWC-1 form containing notice of his workers' compensation rights, and the statute of limitations was tolled until he was given the form or otherwise obtained actual knowledge of his rights. Applicant did not receive notice of his workers' compensation rights until October 11, 2016. Thus, the filing of his Application for Adjudication in the specific injury case on October 27, 2016, less than three weeks after obtaining the required notices, was timely.

ADJ10625118 · September 3, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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