ADJ13947726 — California WCAB decision

ADJ13947726 · December 11, 2023

Petition for Reconsideration granted; Findings, Award and Orders affirmed except amended date of injury to July 13, 2021; Application for Adjudication of Claim found timely and not barred by statute of limitations; temporary disability issue deferred for further development; matter returned to WCJ for further proceedings.

Issues decided

Medical opinions weighed

Authorities named

District office

Pomona

What the panel ordered

Defendant sought reconsideration of the Findings, Award and Orders issued by the WCJ on September 28, 2023, challenging statute of limitations and temporary disability findings; the WCJ recommended denial or alternatively further development on temporary disability; the Appeals Board granted reconsideration, affirmed the F&A except amended date of injury and deferred temporary disability issue for further proceedings.

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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.

Statute of limitationsApplicant prevailedleft knee

The Appeals Board found the date of injury for the cumulative left knee injury to be July 13, 2021, based on medical evidence from Dr. Berman, making the application filed on December 4, 2020 timely and not barred by the statute of limitations.

From the decision · page 4The date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment. (Lab. Code, § 5412.) For purposes of determining the date of a cumulative injury, it is not assumed that a worker has knowledge that the disability is job-related without medical confirmation, unless the nature of the disability and the worker's qualifications are such that he or she should have recognized the relationship (City of Fresno v. Workers' Comp. Appeals Bd. (1985) 163 Cal.App.3d 467, 473 [50 Cal.Comp.Cases 53].) Here, the reports from Dr. Berman are the only evidence that applicant sustained a cumulative injury, as opposed to a specific injury. The medical evidence indicates that the earliest date applicant would have been aware that his left knee disability was result of a cumulative injury was July 13, 2021, the day he was examined by Dr. Berman. Thus, the earliest Labor Code section 5412 date of injury is July 13, 2021.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Dr. Berman's medical reports established the cumulative nature of the left knee injury and the date of injury as July 13, 2021.

Favours Applicant prevailed

This medical evidence was the basis for finding the application timely and not barred by the statute of limitations.

From the decision · page 2BACKGROUND Applicant claimed injury to his left leg and left knee while employed by defendant as a hot walker on July 8, 2019 (ADJ13947726). He had previously claimed injury to his right knee on February 16, 2015 (ADJ10710310), and to his lumbar spine on February 23, 2015 (ADJ13947727). Orthopedic agreed medical examiner (AME) Jeffrey A. Berman, M.D., evaluated applicant on July 13, 2021. Dr. Berman examined applicant, took a history, and reviewed the medical record. As to the cause of applicant's left knee condition, Dr. Berman explained:

Applicant's limited education and initial lack of knowledge about the cumulative injury supported deferring the statute of limitations start date until medical advice was given.

Favours Applicant prevailed

This supported the finding that the statute of limitations did not bar the claim.

From the decision · page 8Secondly, as it pertains to the element of knowledge in assessing a cumulative date of injury, the court noted a few things. Firstly, the court doubted applicant had actual knowledge given the applicant initially forgot about this date of injury entirely during testimony. While applicant recalled the two prior specifics, he had to be reminded by his counsel about the third date of injury. Absent actual knowledge, the court pondered whether applicant perhaps "should have known" about his cumulative trauma injury. While defendant is correct that applicant had reported an injury and knew how to report injuries, these factors alone were not dispositive of knowledge. The court also looked at applicant's training, intelligence and qualifications. In this case, applicant had a 5th grade level of education and did not describe any work or life experience suggesting greater knowledge or training in the area of workers' compensation and/or industrial injurious exposure over time.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant initially forgot about the date of injury and had limited education and work experience, which supported lack of knowledge of cumulative injury until medical advice on July 13, 2021.

From the decision · page 8Secondly, as it pertains to the element of knowledge in assessing a cumulative date of injury, the court noted a few things. Firstly, the court doubted applicant had actual knowledge given the applicant initially forgot about this date of injury entirely during testimony. While applicant recalled the two prior specifics, he had to be reminded by his counsel about the third date of injury. Absent actual knowledge, the court pondered whether applicant perhaps "should have known" about his cumulative trauma injury. While defendant is correct that applicant had reported an injury and knew how to report injuries, these factors alone were not dispositive of knowledge. The court also looked at applicant's training, intelligence and qualifications. In this case, applicant had a 5th grade level of education and did not describe any work or life experience suggesting greater knowledge or training in the area of workers' compensation and/or industrial injurious exposure over time.

Medical recordsfavours Applicant prevailed

Medical evidence from Dr. Berman was the only substantial evidence supporting the cumulative injury and date of injury determination.

From the decision · page 3In his Report, the WCJ again explained that he "... did not see this injury as a specific injury because it occurred over a period of time. The mechanism of injury described was not one injurious incident, rather it was applicant having returned to work for a period time and during said period of time was injured by employer's failure to comply with work restrictions." (Report, pp. 2 § 3.) Having reviewed the trial record, it is clear that the WCJ's conclusion is consistent with Dr. Berman's opinions pertaining to applicant's left knee injury. (Joint Exh. 2, pp. 43 § 44; Joint Exh. 1, p. 2.) A WCJ's statements in an Opinion on Decision or Report are not findings of fact. (See Bstandig v. Workers' Comp. Appeals Bd. (1977) 68 Cal.App.3d 988, 996 [42 Cal.Comp.Cases 114].) However, workers' compensation pleadings may be amended by the Appeals Board to conform to proof, based on evidence submitted at trial. (Cal. Code Regs., tit. 8, § 10517; Rubio v. Workers' Comp. Appeals Bd. (1985) 165 Cal.App.3d 196, 199-200 [50 Cal.Comp.Cases 160].) Although applicant alleged a July 8, 2019 specific injury, Dr. Berman's reports, which are the only medical evidence in the trial record, are substantial evidence that applicant sustained a cumulative injury to his left knee, AOE/COE.

ADJ13947726 · December 11, 2023

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