What the panel treated as outcome-determinative, and which side it favoured.
Applicant's last day of work was July 6, 2020, supported by personnel records and testimony.
Favours Applicant prevailed
Establishes the last day of occupational exposure relevant to injury period and defenses.
From the decision · page 52, lines 3-6; F&O, page finding 1.)
The July 6, 2020, date is supported by the personnel records, specifically the “Employee
Notification Form” dated August 11, 2020, which notes the “[l]ast day worked” was July 6, 2020.
(Exhibit C, PDF p. 3.) Dr. Smith states the “neck, right and left shoulder, right and left wrist and
hand, and back symptoms, impairment and associated disability are the result of the cumulative
work trauma from 7/6/19 to 7/6/20,” and the “findings are consistent with the injuries claimed by
the applicant.” (Joint Exhibit A, PQME Michael D. Smith, M.D., March 21, 2021, p. 38.) At trial,
applicant testified “he last worked in July 2020.” (MOH, p. 7, lines 17-18.)
After review, we are unable to identify any evidence contrary to the last day of work of
July 6, 2020, which is well supported. Therefore, we agree with the WCJ that applicant’s last day
of work, and corresponding last day of occupational exposure, is July 6, 2020.
2.
It is axiomatic that in determining if there is an industrial injury it is necessary to identify
the body part or parts injured. The California Supreme Court long ago confirmed the “Constitution,
Dr. Smith's medical opinion diagnosed cumulative work trauma injury to neck, shoulders, wrists, hands, and back.
Favours Applicant prevailed
Supports finding of injury arising out of employment to specific body parts.
From the decision · page 3(Joint Exhibit A, p. 2-3.)
In the report, Dr. Smith reviewed applicant’s deposition transcript as well as medical
records beginning on October 3, 2011. (Joint Exhibit A, pp. 15-27.) PQME Dr. Smith diagnosed
cervical strain (disc disease), lumbar strain (disc disease), right and left rotator cuff syndrome, and
rule out bilateral carpal tunnel syndrome. (Joint Exhibit A, p. 37.) For causation the doctor states
“neck, right and left shoulder, right and left wrist and hand, and back symptoms, impairment and
associated disability are the result of the cumulative work trauma from 7/6/19 to 7/6/20,” and the
“findings are consistent with the injuries claimed by the applicant.” (Joint Exhibit A, p. 38.)
On April 21, 2021, Dr. Smith issued a supplemental report after reviewing diagnostic
testing. “Based on these test results, I am recommended that the patient be evaluated for possible
lumbar disc surgery, right and left rotator cuff repair and bilateral carpal tunnel releases.” (Joint
Exhibit B, PQME Michael D. Smith, M.D., April 21, 2021, pp. 1;3.)
At trial on May 26, 2022, applicant testified through a Spanish interpreter that he began
working for defendant on May 23, 1988, and described job duties for the position of “relief.”
(MOH, p.
Date of injury under Labor Code section 5412 is September 1, 2020, based on first temporary disability and knowledge.
Favours Applicant prevailed
Determines the applicable date of injury for compensability and defenses.
From the decision · page 164. The date of cumulative injury pursuant to Labor Code section 5412 is September
1, 2020.
Defendant failed to prove post termination defense under Labor Code section 3600(a)(10) because date of injury is after termination.
Favours Applicant prevailed
Allows claim to proceed despite termination, favoring applicant's claim.
From the decision · page 163. Applicant’s claim for benefits is not barred by Labor Code section 3600(a)(10).