ADJ15383875 · July 3, 2023

The WCJ's credibility determination was given great weight. The date of injury under Labor Code section 5412 was found to be September 1, 2021, the date of the QME's medical advice. The statute of limitations was tolled by employer-provided medical benefits under section 5405(c). Defendant failed to prove compensation was barred by the statute of limitations.

From the decision · page 9In summary, we accord to the WCJ's credibility determination the great weight to which it is entitled. We further find that applicant's date of injury was September 1, 2021, the date applicant first received medical advice as to the existence and industrial etiology of a cumulative injury. Because the application for adjudication was filed within one year of the date of injury, compensation is not barred under section 5405(a). Finally, and irrespective of our determination with regard to section 5405(a), the employer's provision of healthcare used by applicant to cure or relieve the effects of the industrial injury tolled the running of the statute of limitations under section 5405(c). Accordingly, we affirm the F&O, except that we amend it to include the date of injury, as contemplated by section 5412 and placed in issue by the parties.

Applicant's trial testimony was found credible by the WCJ and given great weight by the panel

Favours Applicant prevailed

Credibility determination supported acceptance of applicant's injury and date of injury testimony

From the decision · page 3We note from the outset that the WCJ determined that applicant's trial testimony was credible. (F&O, Opinion on Decision, p. 3.) Defendant's Petition nonetheless asserts that "applicant's reporting of the injury cannot be confirmed," as the testimony of applicant is inconsistent and unreliable. (Petition, at p. 5:14.) However, in workers' compensation proceedings, a WCJ's credibility determinations are "entitled to great weight because of the [WCJ's] `opportunity to observe the demeanor of the witnesses and weigh their statements in connection with their manner on the stand...." (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Only evidence of considerable substantiality would warrant rejecting the WCJ's credibility determination. (Id. at pp. 318-319.) Following our review of the

First medical advice of cumulative injury and industrial causation was provided by QME Dr. Thor Gjerdrum on September 1, 2021

Favours Applicant prevailed

Fixed the date of injury under Labor Code section 5412 as September 1, 2021

From the decision · page 2The parties thereafter selected orthopedic Qualified Medical Evaluator (QME) Thor Gjerdrum, M.D., who evaluated applicant on September 1, 2021 and issued a comprehensive medical-legal report pursuant to section 4060, in the specialty of orthopedic medicine. Therein, Dr. Gjerdrum discussed the results of applicant's clinical evaluation and a limited record review. (Joint Ex. 1, Report of Thor Gjerdrum, M.D., dated September 1, 2021, at p. 2.) Applicant reported that in July, 2018, he was pushing carts when he first felt pain in the left hip, but did not seek medical treatment and missed no time from work. The pain gradually worsened, and applicant eventually sought care through his primary care physician. (Ibid.) Dr. Gjerdrum concluded that applicant had sustained cumulative injury from 2018 through January 31, 2021. (Id. at p. 9.)

Employer's provision of healthcare benefits tolled the statute of limitations under Labor Code section 5405(c)

Favours Applicant prevailed

Tolling prevented statute of limitations bar despite claim filing timing

From the decision · page 9Applicant sought nonindustrial treatment through his health insurance and requested and received work accommodations of no climbing stairs. (Minutes, at pp. 3:25; 7:24; 9:4.) Thereafter, applicant continued to treat on a nonindustrial basis, eventually culminating in an arthroscopic surgery in March, 2021, and a subsequent total hip arthroplasty in June, 2021. Pursuant to Bailey, supra, 76 Cal.App.3d 818, and Mihesuah, supra, 29 Cal.App.3d 337, the running of the statute of limitations was tolled by the employer's provision of healthcare benefits utilized by applicant to both diagnose and treat a workplace injury.

Applicant sustained cumulative injury to bilateral hips from 2018 through January 31, 2021. The first medical advice of cumulative injury and industrial causation was in the QME report dated September 1, 2021.

From the decision · page 2The parties thereafter selected orthopedic Qualified Medical Evaluator (QME) Thor Gjerdrum, M.D., who evaluated applicant on September 1, 2021 and issued a comprehensive medical-legal report pursuant to section 4060, in the specialty of orthopedic medicine. Therein, Dr. Gjerdrum discussed the results of applicant's clinical evaluation and a limited record review. (Joint Ex. 1, Report of Thor Gjerdrum, M.D., dated September 1, 2021, at p. 2.) Applicant reported that in July, 2018, he was pushing carts when he first felt pain in the left hip, but did not seek medical treatment and missed no time from work. The pain gradually worsened, and applicant eventually sought care through his primary care physician. (Ibid.) Dr. Gjerdrum concluded that applicant had sustained cumulative injury from 2018 through January 31, 2021. (Id. at p. 9.)

Labor Code section 5412

Date of injury for cumulative injuries is when employee first suffered disability and knew or should have known it was work-related (Labor Code section 5412)

Applied to determine date of injury for cumulative trauma claim

From the decision · page 4In cases involving an alleged cumulative trauma injury, the date of injury is governed by section 5412, which holds:

Labor Code section 5405

Statute of limitations requires claim filing within one year of date of injury or last benefit (Labor Code section 5405)

Applied to assess timeliness of claim filing and tolling

From the decision · page 4Generally, proceedings before the Workers' Compensation Appeals Board ("WCAB") are commenced by the filing of an application. (Lab. Code § 5500; Cal. Code Regs., tit. 8, § 10450.) The time limitations for commencing proceedings are set forth in section 5405:

Labor Code sections 5409, 5705

Burden of proof for statute of limitations defense rests with defendant (Labor Code sections 5409, 5705)

Applied to determine burden of proof for statute of limitations defense

From the decision · page 7The statute of limitations is an affirmative defense, and the burden of proof rests with defendant. (Lab. Code, § 5409, 5705.) Here, defendant has not established that the date of injury as set by section 5412, was more than one year removed from the date of commencement of proceedings for the collection of benefits. (Lab. Code, § 5405(a).) We therefore concur with the WCJ that defendant has not met the burden of establishing that compensation is barred by the statute of limitations.

WCJ found applicant's trial testimony credible despite defendant's contention of inconsistency

From the decision · page 3We note from the outset that the WCJ determined that applicant's trial testimony was credible. (F&O, Opinion on Decision, p. 3.) Defendant's Petition nonetheless asserts that "applicant's reporting of the injury cannot be confirmed," as the testimony of applicant is inconsistent and unreliable. (Petition, at p. 5:14.) However, in workers' compensation proceedings, a WCJ's credibility determinations are "entitled to great weight because of the [WCJ's] `opportunity to observe the demeanor of the witnesses and weigh their statements in connection with their manner on the stand...." (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Only evidence of considerable substantiality would warrant rejecting the WCJ's credibility determination. (Id. at pp. 318-319.) Following our review of the

Employer's provision of healthcare benefits tolled statute of limitations under Labor Code section 5405(c)

From the decision · page 9Applicant sought nonindustrial treatment through his health insurance and requested and received work accommodations of no climbing stairs. (Minutes, at pp. 3:25; 7:24; 9:4.) Thereafter, applicant continued to treat on a nonindustrial basis, eventually culminating in an arthroscopic surgery in March, 2021, and a subsequent total hip arthroplasty in June, 2021. Pursuant to Bailey, supra, 76 Cal.App.3d 818, and Mihesuah, supra, 29 Cal.App.3d 337, the running of the statute of limitations was tolled by the employer's provision of healthcare benefits utilized by applicant to both diagnose and treat a workplace injury.