ADJ14768185 · June 7, 2024

The Board deferred the issue of attorney's fees as it was not properly addressed at trial.

From the decision · page 37. The issue of attorney's fees is deferred.

The Board found that the applicant did not have both disability and knowledge of the industrial nature of her injury until after the claim was filed, so the post-termination defense does not apply and the date of injury is February 28, 2022.

From the decision · page 2Labor Code § 3600(a)(10) maintains that an injury is not compensable if a claim is filed after [] notice of termination or layoff and the claim is for an injury occurring prior to the time of the notice of termination or layoff. There are exceptions to this general rule. Labor Code § 3600(a)(10)(D) provides that a cumulative trauma injury with a date of injury subsequent to a date of termination or layoff is a valid exception to the post- termination defense.

Applicant did not have both disability and knowledge of the industrial nature of her injury until after the claim was filed on June 11, 2021.

Favours Applicant prevailed

This fact negates the applicability of the post-termination defense and supports the finding of injury arising out of employment.

From the decision · page 36. The post-termination defense does not apply to this case as applicant did not have both disability and knowledge of her industrial injury per Labor Code, section 5412, until the February 28, 2022 report of Alexander Latteri, M.D., which is after the date that applicant filed her workers' compensation claim on June 11, 2021.

QME Latteri issued reports on February 28, 2022, June 28, 2023, and December 4, 2023, supporting the finding of injury arising out of and in the course of employment to the cervical spine, bilateral hands and wrists, lumbar spine, and bilateral knees.

The Board relied on QME Latteri's medical reports as substantial evidence for the issue of injury causation and date of injury.

From the decision · page 1Defendant contends that the medical reports of Alexander Latteri, M.D., are not substantial evidence; that it was not provided with due process because the WCJ did not rule on the issue of whether the deposition of Dr. Latteri was necessary to determine whether applicant's injury arose out of and was in the scope of employment; the WCJ did not consider the trial testimony of Frank Pineda, assistant production manager, and Mona Soofer, human resources; and the WCJ erred in finding that the post-termination defense does not apply. Defendant further contends that the WCJ erred in finding that applicant's attorney is entitled to 15% of the retroactive temporary disability as that was not an issue at trial.

California Labor Code

Labor Code section 5412

Defines date of injury for occupational disease or cumulative injuries as the date the employee first suffered disability and knew or should have known it was caused by employment.

From the decision · page 2Labor Code, section 54122, states that the "date of injury in cases of occupational disease 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.)

California Labor Code

Labor Code section 5500.5

Limits liability for occupational disease or cumulative injury claims to employers during the one year before the date of injury or last employment date.

From the decision · page 2Section 5500.5 provides that liability for occupational disease or cumulative injury claims shall be limited to those employers who employed the employee during a period of one year immediately before either the date of injury, as determined by section 5412, or the last date on which the employee was employed. (§ 5500.5(a).)

California Labor Code

Labor Code section 3600(a)(10)

Provides that injury claims filed after notice of termination are not compensable unless the injury date is after termination, as an exception for cumulative trauma injuries.

From the decision · page 2Labor Code § 3600(a)(10) maintains that an injury is not compensable if a claim is filed after [] notice of termination or layoff and the claim is for an injury occurring prior to the time of the notice of termination or layoff. There are exceptions to this general rule. Labor Code § 3600(a)(10)(D) provides that a cumulative trauma injury with a date of injury subsequent to a date of termination or layoff is a valid exception to the post- termination defense.

Applicant's credible testimony regarding her job duties

From the decision · page 6This judge relied on applicant's credible testimony regarding her job duties in deciding the issue of the substantiality of QME Latteri's reports and his findings on AOE/COE. Additionally, defense was given the opportunity to provide QME Latteri with a job description before he issued his final report in December of 2023. QME Latteri opined that the job description he was provided did not give information that would lead him to change his opinions.

Defense witnesses lacked actual knowledge of applicant's job duties

From the decision · page 6Although defense did put on two rebuttal witnesses at trial, both lacked actual knowledge of the applicant's job as they never observed her doing it.