What the panel ordered
Award granted to applicant against Old Republic General Insurance Corporation for cumulative trauma injury to right shoulder with further medical treatment.
Petition for reconsideration granted; original Findings of Fact and Award rescinded and replaced with new Findings and Award.
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.
Applicant met burden of proof for industrial cumulative trauma injury to right shoulder during employment period ending 2/26/2020.
From the decision · page 9Based on the medical exhibits entered into evidence applicant has met his burden of proof.
The WCJ found the application was timely because the applicant did not have knowledge of the industrial nature of the injury until March 2022, within one year of filing the claim.
From the decision · page 91) Statute of limitations California Labor Code § 5405(a) mandates that the period within which proceedings must be commenced for the collection of benefits is one year from the date of injury. The next question is, "What is the date of injury?" Date of injury can often be a moving target when it comes to cumulative traumas.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant did not have knowledge that his right shoulder injury was work-related until March 2022 when informed by his surgeon.
Favours Applicant prevailed
This established the date of injury under Labor Code section 5412 for timeliness purposes, supporting claim filing within one year.
From the decision · page 10With regard to the second prong of Labor Code § 5412, "knowledge," applicant credibly testified that he remembered his shoulder surgeon, Dr. Jason James, told him sometime around the time of his 2nd shoulder surgery which was on 3/21/2022 that his shoulder was potentially work- related injury. This was applicant's first notice that he had a cumulative trauma injury in the form of an injury to his right shoulder. He then filed a claim form on 4/8/2022 and application for this CT claim ending 2/26/2020 to his right shoulder which was within the 1 year time period of learning that he had an industrial injury to his right shoulder. Therefore his workers' compensation claim is not barred by the statute of limitations.
Defendant failed to prove applicant suffered disability entitling him to temporary or permanent disability benefits as of February 26, 2020.
Favours Applicant prevailed
Failure to prove disability on this date meant the earlier date could not be the date of injury under Labor Code section 5412.
From the decision · page 9Defense has not presented any evidence in this case to establish that applicant's [right] shoulder injury resulted in entitlement to either temporary disability or permanent disability on their claimed date of injury of 2/26/2020. Therefore, the first prong of Labor Code § 5412 has not been met and defendant has not met their burden of proof on this prong of the issue.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Found applicant's right shoulder injury was industrially caused.
Dr. Hebrard's 10/21/22 PQME report found the right shoulder injury industrially caused, supporting compensability finding.
From the decision · page 2qualified medical examination (PQME) report, Michael Hebrard, M.D., found that applicant's
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5412
Labor Code section 5412 defines date of injury for cumulative trauma injuries as the date the employee first suffered disability and knew or should have known it was work-related.
Applied to determine the date of injury and timeliness of claim filing.
From the decision · page 9Labor Code § 5412 defines date of injury for cumulative trauma (CT) injuries, such as the claim of injury to the right shoulder, in the instant case as follows:
Labor Code section 5405
Labor Code section 5405 mandates that proceedings for collection of benefits must be commenced within one year from the date of injury.
Applied to assess timeliness of claim filing.
From the decision · page 91) Statute of limitations California Labor Code § 5405(a) mandates that the period within which proceedings must be commenced for the collection of benefits is one year from the date of injury. The next question is, "What is the date of injury?" Date of injury can often be a moving target when it comes to cumulative traumas.
What proof carried it
The evidence the panel weighed, by kind.
Credibility determinations of WCJ Judge Casey, who observed witness demeanor, were given great weight and not contradicted by substantial evidence.
From the decision · page 2great weight because the WCJ had the opportunity to observe the demeanor of the witnesses.
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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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