ADJ11652399 · February 25, 2021

Applicant did not have the requisite knowledge of an industrial injury until advised by a physician; no evidence applicant had specialized medical knowledge; missed work days before claim filing were not compensable disability without contemporaneous medical evidence; recommended work restrictions were not indicative of permanent disability as defendant did not accommodate them.

From the decision · page 1We further add that defendant's burden of proving the knowledge component of Labor Code Section 5412 is not met merely by showing that the employee knew he had some symptoms. (Chambers v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 556, 559 [33 Cal.Comp.Cases 722]; Pacific Indemnity Co. v. Industrial Acc. Com. (Rotondo) (1950) 34 Cal.2d 726, 729 (15 Cal.Comp.Cases 37).) These principles were discussed by the appellate court in City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal.App.3d 467 [50 Cal.Comp.Cases 53].) In the Johnson case applicant formed the belief more than one year before he filed his application for workers' compensation benefits that his cardiac problems were work related. The Appeals Board and appellate court concluded that applicant did not have the requisite knowledge of an industrial injury even though he believed his cardiac symptoms were caused by his work:

Applicant did not have medical knowledge or specialized training to recognize industrial injury before claim filing

Favours Defendant prevailed

Applicant's belief alone does not satisfy knowledge requirement under Labor Code section 5412

From the decision · page 2Applicant did not have the training or qualifications to recognize the relationship between the known adverse factors involved in his employment and his disability. Applicant's expression of the belief shared by most disabled employees, that his employment caused his disability does not mandate a contrary conclusion. (Johnson, supra, 50 Cal.Comp.Cases at p. 58.) The Johnson case supports the general rule that an employee is not chargeable with knowledge of an industrial injury until so advised by a physician unless the employee has medical knowledge or specialized training to establish knowledge of an industrial injury. (Id. at p. 56.) In the current case defendant introduced no evidence that applicant had any specialized training or medical knowledge which would satisfy the requirements of Labor Code Section 5412.

Applicant took six to eight days off work due to shoulder pain before filing claim but had no contemporaneous medical reports

Favours Defendant prevailed

Missed work days without medical evidence do not constitute compensable disability

From the decision · page 7In determining these matters, I recognized that applicant testified and made statements to his doctors that he took six to eight days off work because of shoulder pain, which he knew to be work related, before he filed the claim for case number ADJ1652399. However, I further determined that those missed days from work did not constitute compensable disability because there were no contemporaneous medical reports reflecting that applicant could not work on those days, and I further determined that there was no substantial evidence reflecting that the recommended work restrictions were indicative of permanent disability particularly since defendant did not accommodate those restrictions.

Recommended work restrictions were not accommodated by defendant and thus not indicative of permanent disability

Favours Defendant prevailed

Lack of accommodation means restrictions do not prove compensable permanent disability

From the decision · page 7In determining these matters, I recognized that applicant testified and made statements to his doctors that he took six to eight days off work because of shoulder pain, which he knew to be work related, before he filed the claim for case number ADJ1652399. However, I further determined that those missed days from work did not constitute compensable disability because there were no contemporaneous medical reports reflecting that applicant could not work on those days, and I further determined that there was no substantial evidence reflecting that the recommended work restrictions were indicative of permanent disability particularly since defendant did not accommodate those restrictions.

Applicant had progressive shoulder pain with work-related tasks; work restrictions were recommended; left shoulder surgery was performed; temporary disability indemnity payments began after surgery.

From the decision · page 5On February 22, 2017, applicant's new treating physician, Robert Martin, M.D., issued a report stating in relevant part that applicant had a progressive increase in shoulder pain over a four month period with work related tasks, that applicant took "days off when the pain became severe... (Exhibit FF at p. 1.) Applicant was permitted to return to work, but was precluded from overheard work and lifting over ten pounds. (Id. at p. 3.) On March 8, 2017, Dr. Martin stated that applicant continued to require those restrictions. (Exhibit GG at p. 2.)

Labor Code section 5412

Labor Code section 5412 requires knowledge of injury and disability for date of injury determination

Applicant did not have requisite knowledge until advised by physician; missed work days without medical evidence not compensable disability

From the decision · page 1We further add that defendant's burden of proving the knowledge component of Labor Code Section 5412 is not met merely by showing that the employee knew he had some symptoms. (Chambers v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 556, 559 [33 Cal.Comp.Cases 722]; Pacific Indemnity Co. v. Industrial Acc. Com. (Rotondo) (1950) 34 Cal.2d 726, 729 (15 Cal.Comp.Cases 37).) These principles were discussed by the appellate court in City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal.App.3d 467 [50 Cal.Comp.Cases 53].) In the Johnson case applicant formed the belief more than one year before he filed his application for workers' compensation benefits that his cardiac problems were work related. The Appeals Board and appellate court concluded that applicant did not have the requisite knowledge of an industrial injury even though he believed his cardiac symptoms were caused by his work:

Applicant's testimony about taking six to eight days off work due to shoulder pain related to work before filing claim

From the decision · page 6sick days over the course of three to four months because of his shoulder pain. (Exhibit A at pp. 18:16-19:23.) He told his boss that the time off work was for shoulder pain related to his work activities. (Id. at p. 22.) However, he did not obtain any medical treatment before he reported the claim. (Id. at p. 19:24-2 0:2.) After he reported the injury, he was placed on modified work and was not lifting heavy items, but his shoulder pain worsened. (Id. at p. 22:10-22:23.)