ADJ13719149 · January 21, 2022

The WCJ's findings on discrimination were rescinded for further development of the record on whether applicant established a prima facie case and whether the business necessities defense applies.

From the decision · page 12In this case, pursuant to the discussion above, we are unable to ascertain the reasons or grounds upon which the WCJ determined in the Report that applicant presented evidence sufficient to prove his prima facie claim. We note, moreover, that a record of the grounds for such a decision is necessary not only for our review, but for defendant to present its business necessities defense, as appropriate. We therefore conclude that the WCJ should develop the record on the issue of whether and on what grounds applicant has established a prima facie case that defendant discriminated against him in violation of section 132a, and other issues such as whether the business necessities defense applies or constitutes a mere pretext for adverse treatment, as appropriate. Accordingly, we will rescind the F&A in case number ADJ10738865 and return the matter for further proceedings consistent with this decision.

The claim for continuous trauma bilateral knee injury was found not barred by the statute of limitations because applicant's first knowledge of industrial nature and disability was the 2021 PQME report.

From the decision · page 6However, Applicant filed a claim for a continuous trauma that extends through his last date of employment. This is a different and distinct injury.... No credible evidence was presented to show applicant had actual knowledge or even constructive knowledge to support he should have reasonably known his knees were industrially injured through his last day of employment nor did he suffer any disability due to a bilateral knee injury for the period of exposure up through his last date of employment.... For L.C. § 5412 purposes, the date of injury is February 18, 2021 Since the Application for Adjudication of Claim for the CT ending on 12/10/2014 was filed on October 10, 2020, the claim is not barred by the statute of limitations. (Opinion on Decision, pp. 1-2.)

Applicant's first knowledge of industrial nature of bilateral knee injury and disability was the February 18, 2021 PQME report by Dr. Scott Graham.

Favours Applicant prevailed

This established the start date for the statute of limitations, making the continuous trauma claim timely.

From the decision · page 7Since applicant's first knowledge of the industrial nature of his bilateral knees coupled with disability in the form of temporary disability was the February 18, 2021 report of PQME Scott Graham, M.D., the claim filed on October 5, 2020 was timely and is not barred by the statute of limitations.

Applicant testified credibly that Dr. Graham was the first doctor to advise him his bilateral knee condition was industrially related and provided for temporary disability.

Favours Applicant prevailed

Supports the finding that applicant did not have prior knowledge of industrial injury, favoring timeliness of claim.

From the decision · page 13Here, applicant testified that, although he had sought treatment for knee injuries and had discussed his job duties with his treating physician, the first doctor to advise that his bilateral knee condition was industrially related was Dr. Graham, in his capacity as PQME. (Minutes of Hearing and Summary of Evidence, July 8, 2021, p. 4:1-21; Report on defendant's Petition, p. 2.) The WCJ determined that this testimony was credible, a determination which we accord great weight because the WCJ had the opportunity to observe applicant's demeanor at trial. (Report on defendant's Petition, p. 2; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 319 [35 Cal.Comp.Cases 500, 505]; Sheffield Medical Group v. Workers' Comp. Appeals Bd. (Perez) (1999) 70 Cal.App.4th 868 [64 Cal.Comp.Cases 358].)

Defendant failed to prove applicant had knowledge of industrial nature of injury prior to Dr. Graham's report.

Favours Applicant prevailed

Supports the conclusion that the statute of limitations did not bar the claim.

From the decision · page 7Defendant has failed to meet their burden of proof to show applicant had knowledge of the industrial nature of his injuries coupled with disability, prior to the reporting of PQME Scott Graham, M.D. (Report, pp. 2-3.)

WCJ did not provide sufficient reasons or grounds for finding applicant established a prima facie discrimination claim under Labor Code section 132a.

Favours Applicant prevailed

Required remand for further proceedings to develop the record on discrimination claim and business necessities defense.

From the decision · page 12In this case, pursuant to the discussion above, we are unable to ascertain the reasons or grounds upon which the WCJ determined in the Report that applicant presented evidence sufficient to prove his prima facie claim. We note, moreover, that a record of the grounds for such a decision is necessary not only for our review, but for defendant to present its business necessities defense, as appropriate. We therefore conclude that the WCJ should develop the record on the issue of whether and on what grounds applicant has established a prima facie case that defendant discriminated against him in violation of section 132a, and other issues such as whether the business necessities defense applies or constitutes a mere pretext for adverse treatment, as appropriate. Accordingly, we will rescind the F&A in case number ADJ10738865 and return the matter for further proceedings consistent with this decision.

Opined that applicant sustained industrial injury to bilateral knees and was the first to advise applicant of industrial nature and temporary disability.

Applicant testified credibly that Dr. Graham was the first doctor to advise him his bilateral knee condition was industrially related and provided for temporary disability.

From the decision · page 13Here, applicant testified that, although he had sought treatment for knee injuries and had discussed his job duties with his treating physician, the first doctor to advise that his bilateral knee condition was industrially related was Dr. Graham, in his capacity as PQME. (Minutes of Hearing and Summary of Evidence, July 8, 2021, p. 4:1-21; Report on defendant's Petition, p. 2.) The WCJ determined that this testimony was credible, a determination which we accord great weight because the WCJ had the opportunity to observe applicant's demeanor at trial. (Report on defendant's Petition, p. 2; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 319 [35 Cal.Comp.Cases 500, 505]; Sheffield Medical Group v. Workers' Comp. Appeals Bd. (Perez) (1999) 70 Cal.App.4th 868 [64 Cal.Comp.Cases 358].)

Labor Code section 5412

Statute of limitations for cumulative trauma claims requires concurrence of knowledge and disability to start the limitations period.

Applied to determine that the claim was timely because applicant's first knowledge of industrial injury and disability was in 2021.

From the decision · page 6However, Applicant filed a claim for a continuous trauma that extends through his last date of employment. This is a different and distinct injury.... No credible evidence was presented to show applicant had actual knowledge or even constructive knowledge to support he should have reasonably known his knees were industrially injured through his last day of employment nor did he suffer any disability due to a bilateral knee injury for the period of exposure up through his last date of employment.... For L.C. § 5412 purposes, the date of injury is February 18, 2021 Since the Application for Adjudication of Claim for the CT ending on 12/10/2014 was filed on October 10, 2020, the claim is not barred by the statute of limitations. (Opinion on Decision, pp. 1-2.)

Labor Code section 132a

Discrimination under Labor Code section 132a requires showing adverse treatment due to industrial injury and legal right to benefit or status.

Applied to analyze applicant's discrimination claim and remand for further proceedings to develop record on prima facie case and business necessities defense.

From the decision · page 11Section 5313 requires the WCJ to produce "a summary of the evidence received and relied upon and the reasons or grounds upon which the [court's] determination was made." (See also Blackledge v. Bank of America (2010) 75 Cal.Comp.Cases 613, 621-22.) The WCJ's opinion on decision "enables the parties, and the Board if reconsideration is sought, to ascertain the basis for the decision, and makes the right of seeking reconsideration more meaningful." (Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc), citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350, 351].) A decision "must be based on admitted evidence in the record" (Hamilton, supra, at p. 478), and must be supported by substantial evidence. (§ 5903, 5952, subd. (d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) As required by section 5313 and explained in Hamilton, "the WCJ is charged with the responsibility of referring to the evidence in the opinion on decision, and of clearly designating the evidence that forms the basis of the decision." (Hamilton, supra, at p. 475.)

Applicant's credible testimony that Dr. Graham was the first to advise him of industrial nature of bilateral knee condition and temporary disability.

From the decision · page 13Here, applicant testified that, although he had sought treatment for knee injuries and had discussed his job duties with his treating physician, the first doctor to advise that his bilateral knee condition was industrially related was Dr. Graham, in his capacity as PQME. (Minutes of Hearing and Summary of Evidence, July 8, 2021, p. 4:1-21; Report on defendant's Petition, p. 2.) The WCJ determined that this testimony was credible, a determination which we accord great weight because the WCJ had the opportunity to observe applicant's demeanor at trial. (Report on defendant's Petition, p. 2; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 319 [35 Cal.Comp.Cases 500, 505]; Sheffield Medical Group v. Workers' Comp. Appeals Bd. (Perez) (1999) 70 Cal.App.4th 868 [64 Cal.Comp.Cases 358].)

Defendant's failure to show applicant had knowledge of industrial nature of injury prior to Dr. Graham's report.

From the decision · page 7Defendant has failed to meet their burden of proof to show applicant had knowledge of the industrial nature of his injuries coupled with disability, prior to the reporting of PQME Scott Graham, M.D. (Report, pp. 2-3.)