ADJ15313468 · November 13, 2023

The WCAB found that applicant sustained injury to cervical spine, lumbar spine, shoulders, knees, hands, and wrists arising out of employment.

From the decision · page 4FINDINGS OF FACT 1. applicant, while employed during the period from June 4, 2004, to October 7, 2021 at Fullerton, California by South Coast Transportation &Distribution dba Western Regional Delivery Services, as a truck driver, sustained injury arising out of and in the course of employment to his cervical spine, lumbar spine, shoulders, knees, hands and wrists. 2. At the time of injury, the employer's workers' compensation carrier was ZurichAmerican Insurance, as administered by Gallagher Bassett Services, Inc. 3. The primary treating physician is Khalid Ahmed, M.D. 4. Pursuant to Labor Code section 5412, the date of injury is October 26, 2021.

The WCAB found the date of injury to be October 26, 2021, when applicant first knew his disability was industrial, and that the claim was not barred by the statute of limitations or as a post-termination claim.

From the decision · page 3Here, while applicant knew that he had symptoms, defendant has not met its burden to show that he knew that his injury was job-related until he was seen by primary treating physician (PTP) Dr. Rubanenko on October 26, 2021. (Ex. C, Report by Gabriel Rubanenko, M.D., dated 10/26/21, p. 16.) Therefore, the date of injury is October 26, 2021, the date when applicant first became aware that his disability was industrial after the examination by Dr. Rubanenko. We observe that in cases involving cumulative trauma injuries, the date of injury pursuant to section 5412 "also sets the date for the measurement of compensation payable, and all other incidents of the [worker's] right[s]." (Argonaut Mining Co. v. Ind. Acc. Com. (1951) 104 Cal.App.2d 27, 31.)

Applicant first knew his disability was industrial on October 26, 2021 after examination by Dr. Rubanenko.

Favours Applicant prevailed

Set the date of injury and barred statute of limitations defense.

From the decision · page 3Here, while applicant knew that he had symptoms, defendant has not met its burden to show that he knew that his injury was job-related until he was seen by primary treating physician (PTP) Dr. Rubanenko on October 26, 2021. (Ex. C, Report by Gabriel Rubanenko, M.D., dated 10/26/21, p. 16.) Therefore, the date of injury is October 26, 2021, the date when applicant first became aware that his disability was industrial after the examination by Dr. Rubanenko. We observe that in cases involving cumulative trauma injuries, the date of injury pursuant to section 5412 "also sets the date for the measurement of compensation payable, and all other incidents of the [worker's] right[s]." (Argonaut Mining Co. v. Ind. Acc. Com. (1951) 104 Cal.App.2d 27, 31.)

Medical records from 2008 showed symptoms but no medical conclusion of industrial injury until 2021.

Favours Applicant prevailed

Supported that applicant did not know injury was industrial until 2021.

From the decision · page 3Additionally, medical evidence that existed in 2008, prior to applicant's notice of termination of layoff, contained evidence of the injury as early as 2008. (Ex. A, Kaiser designated subpoenaed records, p. 6.) Moreover, the parties stipulated at trial that medical records were in existence prior to the date of injury. (5/31/23 Minutes of Hearing/ Statement of Evidence, Stipulation 5.) Thus, the claim is not barred by section 3600(a)(10)(B). Further, since the date of injury is October 26, 2021, applicant's claim is not barred as a post-termination claim. (Lab. Code, § 3600(a)(10)(D).)

Applicant's testimony was credible and supported by the WCJ's observation of demeanor.

Favours Applicant prevailed

Credibility supported acceptance of applicant's claim and testimony about injury and knowledge.

From the decision · page 2First, we note that we have given the WCJ's credibility determination of the applicant great weight because the WCJ had the opportunity to observe the demeanor of the applicant. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determination. (Id.) We observe that while defendant's Petition raises issues as to whether applicant's testimony was reliable, the WCJ adequately explained in his Opinion and his Report why applicant's testimony supported his decision.

Designated as primary treating physician with valid 4600 letter; reports were admitted as evidence.

From the decision · page 9Applicant's Exhibit 10 is a valid 4600 letter selecting Khalid Ahmend, M.D. as the primary treating physician.

Examined applicant on October 26, 2021, establishing the date of injury as the date applicant first knew his disability was industrial.

The date of injury was set based on the medical examination and report of Dr. Rubanenko.

From the decision · page 3Here, while applicant knew that he had symptoms, defendant has not met its burden to show that he knew that his injury was job-related until he was seen by primary treating physician (PTP) Dr. Rubanenko on October 26, 2021. (Ex. C, Report by Gabriel Rubanenko, M.D., dated 10/26/21, p. 16.) Therefore, the date of injury is October 26, 2021, the date when applicant first became aware that his disability was industrial after the examination by Dr. Rubanenko. We observe that in cases involving cumulative trauma injuries, the date of injury pursuant to section 5412 "also sets the date for the measurement of compensation payable, and all other incidents of the [worker's] right[s]." (Argonaut Mining Co. v. Ind. Acc. Com. (1951) 104 Cal.App.2d 27, 31.)

Found applicant had injury arising out of employment during June 4, 2004 to October 7, 2021 to multiple body parts including cervical spine, lumbar spine, shoulders, knees, hands and wrists.

The QME report supported the finding of compensability for the claimed injuries.

From the decision · page 9Pursuant to the report of panel qualified medical examiner Alexander Latteri, M.D. date December 12, 2022, the Applicant had an injury arising out of and in the course of employment during the period June 4, 2004 to October 7, 2021 while employed by Western Regional Delivery Service as a Truck Driver, Loader/Unloader to his cervical spine, lumbar spine, shoulders, knees, hands and wrists. Based on the lack of personal knowledge of what happens at the customer site by defendant's witness and the creditable testimony of Applicant, it is found that Applicant did load/unload freight and wrap pallets.

City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal.App.3d 467

Burden is on employer to prove employee knew or should have known disability was industrially caused.

Applied to reject employer's contention that applicant knew injury was industrial prior to 2021.

Labor Code section 5412

Date of injury in cumulative trauma cases is when employee first suffered disability and knew or should have known it was caused by employment (Lab. Code § 5412).

Applied to determine date of injury as October 26, 2021.

From the decision · page 2We further note that the "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.) Whether an employee knew or should have known his disability was industrially caused is a question of fact. (City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal.App.3d 467, 471 [50 Cal.Comp.Cases 53] (Johnson); Nielsen v. Workers' Comp. Appeals Bd. (1985) 164 Cal.App.3d 918, 927 [50 Cal.Comp.Cases 104]; Chambers v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 556, 559 [33 Cal.Comp.Cases 722].)

Applicant's credibility was given great weight by the WCJ as he observed applicant's demeanor and found no substantial evidence to reject it.

From the decision · page 2First, we note that we have given the WCJ's credibility determination of the applicant great weight because the WCJ had the opportunity to observe the demeanor of the applicant. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determination. (Id.) We observe that while defendant's Petition raises issues as to whether applicant's testimony was reliable, the WCJ adequately explained in his Opinion and his Report why applicant's testimony supported his decision.

Medical records from 2008 showed symptoms but no medical conclusion of industrial injury until 2021 examination.

From the decision · page 3Additionally, medical evidence that existed in 2008, prior to applicant's notice of termination of layoff, contained evidence of the injury as early as 2008. (Ex. A, Kaiser designated subpoenaed records, p. 6.) Moreover, the parties stipulated at trial that medical records were in existence prior to the date of injury. (5/31/23 Minutes of Hearing/ Statement of Evidence, Stipulation 5.) Thus, the claim is not barred by section 3600(a)(10)(B). Further, since the date of injury is October 26, 2021, applicant's claim is not barred as a post-termination claim. (Lab. Code, § 3600(a)(10)(D).)