ADJ10625118 · September 3, 2021

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 WCJ found industrial injury based on applicant's credible testimony of immediate pain and requests for medical treatment after the forklift incident on September 1, 2015, which was affirmed by the WCAB.

From the decision · page 6We affirm the finding of industrial injury, since the WCJ believed applicant's testimony that he was involved in the work incident which produced immediate pain causing applicant to request medical treatment several times in the aftermath of the incident. Unlike the claim of cumulative injury, a specific incident that causes immediate symptoms is not as complex an analysis, especially given that only whether the injury caused any disability or need for medical treatment was at issue. (Peter Kiewit Sons v. Ind. Acc. Comm. (McLaughlin) (1965) 234 Cal.App.2d 831, 838-839 [30 Cal.Comp.Cases 188].) The issue of permanent disability caused by either of the injuries claims has not yet been determined. Accordingly, any deficiencies in Dr. Powell's apportionment analysis are not relevant to any issues before us.

Defendant failed to show when the statute of limitations began to run for the cumulative injury claim, so the WCJ's determination that the claim was timely filed was not disturbed.

From the decision · page 5Since defendant has not even attempted to explain when applicant first sustained disability because of his industrial injury, and when he reasonably should have known that the disability was industrially caused, despite that it was its clear duty to do so, we have no occasion to disturb the WCJ's determination that applicant's Application in the cumulative injury case was filed within the limitations period.

The statute of limitations was tolled due to defendant's failure to provide a DWC-1 claim form, and the claim was timely filed after applicant received notice of rights.

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.

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.

Attributed permanent disability to cumulative injury but did not explain how cumulative job duties caused disability or need for medical treatment.

Reports and deposition did not explain mechanism of injury or causation for cumulative injury disability or treatment need.

From the decision · page 5Regarding the findings of industrial injury, the WCJ relied upon the reporting and deposition testimony of chiropractor Dr. Powell. Dr. Powell issued reports on June 23, 2017, October 16, 2017, January 4, 2018, and April 20, 2018. Additionally, Dr. Powell's deposition was taken on June 12, 2019. Although Dr. Powell attributed permanent disability to a cumulative injury, Dr. Powell never explains in any of his reports or deposition testimony how applicant's cumulative job duties caused disability or the need for medical treatment. All findings of the WCAB must be based on substantial evidence. (Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 637 [35 Cal.Comp.Cases 16]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620 [Appeals Bd. en banc].) As the Court of Appeal wrote in E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71

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

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.

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.