What the panel ordered
The Petition for Reconsideration filed by Defendant is denied.
Defendant filed a Petition for Reconsideration of the WCJ's Findings and Order issued on September 27, 2023, which was denied by the WCAB panel decision dated December 22, 2023.
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.
The court found that the current cumulative trauma claim is a separate cause of action from the prior settled claim and thus not barred by res judicata or collateral estoppel.
From the decision · page 8Res judicata and/or collateral estoppel do not apply to bar this case because it is not the same cause of action as the prior CT pled as 1/1/06-1/31/07 (ADJ6967095) which settled via stipulated award on 4/20/15. The court found in its Opinion on Decision pursuant to Aetna Casualty and Surety Co. v. WCAB (Coltharp) (1973) 38 CCC 720, that the case at bar is actually a subsequent CT injury running from September 2007 through December 2008, whereas the previously settled CT injury was for the period of exposure running from 1/1/06 through June 2007, at which time Applicant had surgery, was placed on disability, and was off
The court found that the claim was timely filed within one year after the last provision of treatment pursuant to Labor Code Section 5405(c), and that ongoing medical treatment tolled the statute of limitations.
From the decision · page 10The subsequent CT injury must have been filed within the time deadlines in Labor Code Section 5405. The court was persuaded by Applicant's argument in their trial brief, consistent with the Plotnick case, that when treatment is provided for an injury that settled via stipulated award and Applicant has another unfiled date of injury for the same body part, when he gets treatment under the stipulated award he is also getting treatment on the unfiled case for purposes of Labor Code Section 5405(c). Applicant was still getting treatment for the neck under his stipulated award in ADJ6967095 less than a year before the Application for Adjudication was filed in the case as bar for the same body part. Thus, the claim is not barred under Labor Code Section 5405.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant sustained a subsequent cumulative trauma injury for the period September 2007 through December 2008, which is a separate cause of action from the prior settled claim.
Favours Applicant prevailed
This fact supports the denial of the Petition for Reconsideration on the basis that res judicata and collateral estoppel do not bar the current claim.
From the decision · page 2We concur with the WCJ that applicant sustained a subsequent cumulative trauma injury
Applicant continued to receive medical treatment for his neck under the stipulated award in ADJ6967095 through one year prior to filing the pending claim, tolling the statute of limitations under Labor Code Section 5405(c).
Favours Applicant prevailed
This fact supports the denial of the Petition for Reconsideration on the basis that the claim was timely filed and not barred by the statute of limitations.
From the decision · page 3Here, defendant does not appear to dispute that applicant continued to receive medical treatment for his neck under the stipulated award in ADJ6967095 through one year prior to filing the pending claim. Therefore, applicant's statute of limitations was tolled through one year prior to filing the pending claim under section 5405, subdivision (c), pursuant to the holding in Plotnick v. Workers' Comp. Appeals Bd. (Plotnick) (1970) 1 Cal.3d 622, 623-626 [35 Cal.Comp.Cases 13], based on the provision of medical treatment by an employer for an earlier injury that also provides treatment for a subsequent injury.7
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Dr. Berman found a subsequent cumulative trauma injury and noted ongoing treatment for the neck from 2011 until the application was filed in 2019.
Dr. Berman's report supports the finding that the current claim is a separate subsequent cumulative trauma injury and that ongoing treatment was provided.
From the decision · page 8In contrast, AME Dr. Berman specifically finds a subsequent CT injury on p. 140 of his 6/1/21 report. Dr. Berman's extensive record review also reveals that Applicant received ongoing treatment for his neck from 2011 until the application for his subsequent CT injury was filed in 2019.
Dr. Wakim opined that the applicant had injurious exposure until his last day of work in December 2008 but was silent on whether there was one or two cumulative trauma injuries.
Dr. Wakim's opinion was considered but did not clarify the number of cumulative trauma injuries, thus less weight was given compared to Dr. Berman's opinion.
From the decision · page 8Dr. Wakim opined in his 1/5/11 cross-examination that Applicant had injurious exposure until his last day of work, which would have been in December 2008. He did not say whether there was only one CT injury, or whether there were two CT injuries. He was silent on that issue. On p. 18, where he opines that the period of continuous trauma will be from when Applicant first felt symptoms on 1/1/06 through the last day of his employment, he was responding to a line of questioning about apportionment between the two existing claims--one a CT, and the other a specific--under Benson.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Plotnick v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 622
The statute of limitations under Labor Code Section 5405(c) is tolled by the provision of medical treatment for an earlier injury that also provides treatment for a subsequent injury.
The court applied this standard to find that the claim was timely filed within one year after the last provision of treatment.
From the decision · page 3Here, defendant does not appear to dispute that applicant continued to receive medical treatment for his neck under the stipulated award in ADJ6967095 through one year prior to filing the pending claim. Therefore, applicant's statute of limitations was tolled through one year prior to filing the pending claim under section 5405, subdivision (c), pursuant to the holding in Plotnick v. Workers' Comp. Appeals Bd. (Plotnick) (1970) 1 Cal.3d 622, 623-626 [35 Cal.Comp.Cases 13], based on the provision of medical treatment by an employer for an earlier injury that also provides treatment for a subsequent injury.7
Dkn Holdings LLC v. Faerber (2015) 61 Cal.4th 813
Claim preclusion (res judicata) applies only when the second suit involves the same cause of action; separate cumulative trauma injuries constitute separate causes of action.
The court applied this standard to find that the current cumulative trauma claim is a separate cause of action and not barred by res judicata.
From the decision · page 2Casualty and Surety Co. v. WCAB (Coltharp) (1973) 35 Cal.App.3d 329 [38 Cal.Comp.Cases 720].)3 We therefore concur with the WCJ that applicant's current CT claim is not barred by the doctrine of claim preclusion4 because the current CT claim does not involve the same cause of action as that in ADJ6967095.5 (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 [2015
What proof carried it
The evidence the panel weighed, by kind.
Applicant continued to receive medical treatment for his neck under the stipulated award in ADJ6967095 through one year prior to filing the pending claim, tolling the statute of limitations under Labor Code Section 5405(c).
From the decision · page 3Here, defendant does not appear to dispute that applicant continued to receive medical treatment for his neck under the stipulated award in ADJ6967095 through one year prior to filing the pending claim. Therefore, applicant's statute of limitations was tolled through one year prior to filing the pending claim under section 5405, subdivision (c), pursuant to the holding in Plotnick v. Workers' Comp. Appeals Bd. (Plotnick) (1970) 1 Cal.3d 622, 623-626 [35 Cal.Comp.Cases 13], based on the provision of medical treatment by an employer for an earlier injury that also provides treatment for a subsequent injury.7
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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