What the panel ordered
Petition for Reconsideration granted in part to amend injury findings by deferring all body parts; Petition denied as to post termination defense; January 25, 2022 Findings and Order otherwise affirmed
Petition for Reconsideration filed by defendant challenging injury findings and post termination defense; WCJ report reviewed and adopted by panel
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 the initial injury finding to the face premature and amended it to defer all body parts, based on review of the record and testimony.
From the decision · page 5In the court's Findings & Order and Opinion on Decision the court found injury to applicant's face based on applicant's testimony regarding the mechanism of injury and testimony of Tony Jaques, regarding his observations of applicant's appearance after the incident occurred. In reviewing the record, the court agrees with defendant regarding the finding of injury to Applicant's face should be rescinded. The court believes this finding was premature and all body parts should be deferred. Therefore, the court recommends as to Findings Number 1, it should be amended to: the applicant while employed on August 26, 2020 as a carpenter helper, at San Bernardino, California, by Stater Bros. Markets, claims to have sustained injury arising out of and in the course of employment to his head, back, and left ear. Moreover, Findings Number 4 should be amended to: All body parts are deferred.
The court found that the post termination defense did not apply because the employer had notice of injury with signs of injury and offered medical treatment.
From the decision · page 5defendant was aware of injury on August 28, 2020. (Joint Exhibit 2). Thus, this WCJ is of the opinion that applicant meets the exemption noted in Labor Code section (a)(10)(A). Thus, the post termination defense of Labor Code section 3600(a)(10) does not apply.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Employer was aware of injury on August 28, 2020, with visible signs of injury and offered medical treatment
Favours Applicant prevailed
This fact supported the finding that the post termination defense did not apply
Initial finding of injury to applicant's face was premature and all body parts should be deferred
Favours Defendant prevailed
This fact led to the amendment of the injury findings in favor of defendant
From the decision · page 5In the court's Findings & Order and Opinion on Decision the court found injury to applicant's face based on applicant's testimony regarding the mechanism of injury and testimony of Tony Jaques, regarding his observations of applicant's appearance after the incident occurred. In reviewing the record, the court agrees with defendant regarding the finding of injury to Applicant's face should be rescinded. The court believes this finding was premature and all body parts should be deferred. Therefore, the court recommends as to Findings Number 1, it should be amended to: the applicant while employed on August 26, 2020 as a carpenter helper, at San Bernardino, California, by Stater Bros. Markets, claims to have sustained injury arising out of and in the course of employment to his head, back, and left ear. Moreover, Findings Number 4 should be amended to: All body parts are deferred.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 3600(a)(10)
Labor Code section 3600(a)(10) regarding post termination defense
Applied to determine applicability of post termination defense based on employer's notice of injury and signs of injury
From the decision · page 4Labor Code section 3600(a)(10) provides that:
Legal standards from Honeywell and Palacios cases regarding notice and injury findings
Distinguished Honeywell and applied Palacios to injury and notice findings
From the decision · page 4Defendant argues that this court's erred in not applying the standards noted by the Supreme Court in Honeywell and the Appeals Board in Palacios. Honeywell, involved a case regarding notice for the commencement of the employer's duty to investigate a claim when the presumption on compensability was raised pursuant to Labor Code section 5402(b). (Honeywell v. Workers' Comp. Appeals Bd., 2005 Cal. LEXIS 1604). That is not the issue in the case here.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony of injury and foreman's observations of redness on face and cheek
From the decision · page 5In the court's Findings & Order and Opinion on Decision the court found injury to applicant's face based on applicant's testimony regarding the mechanism of injury and testimony of Tony Jaques, regarding his observations of applicant's appearance after the incident occurred. In reviewing the record, the court agrees with defendant regarding the finding of injury to Applicant's face should be rescinded. The court believes this finding was premature and all body parts should be deferred. Therefore, the court recommends as to Findings Number 1, it should be amended to: the applicant while employed on August 26, 2020 as a carpenter helper, at San Bernardino, California, by Stater Bros. Markets, claims to have sustained injury arising out of and in the course of employment to his head, back, and left ear. Moreover, Findings Number 4 should be amended to: All body parts are deferred.
Superintendent's testimony of applicant's report of injury and visible signs of injury
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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.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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