What the panel ordered
Petition for reconsideration granted to amend the section 5412 date of injury to June 21, 2022; Findings and Order otherwise affirmed.
Defendant petitioned for reconsideration of the WCJ's Findings and Order dated March 27, 2025, which found cumulative injury AOE/COE to neck and back, set a section 5412 date of injury, and found the claim not barred by the statute of limitations. The WCAB granted reconsideration to amend the date of injury and otherwise affirmed.
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's credible testimony and substantial medical evidence from Dr. Sirakoff established cumulative trauma injury AOE/COE to neck and back; PQME Dr. Bernicker's opinion was not substantial evidence due to reliance on incorrect legal theory and inadequate medical history.
From the decision · page 11In conjunction with applicant's credible testimony, the WCJ relied on the substantial opinions of Dr. Sirakoff to make findings. "According to the primary treating physician and the applicant's credible testimony, the applicant sustained a cumulative trauma injury while performing the above job duties. There is substantial evidence to support a finding of injury arising out of and in the course of employment to the neck and back due to a cumulative trauma injury while working at Telecare Corporation as an LVN." (Report, page 5.)
Date of injury under section 5412 is when applicant first had knowledge of cumulative trauma injury and disability, which occurred on June 21, 2022, the date of Dr. Sirakoff's initial report finding disability.
From the decision · page 12FINDINGS OF FACT 4. The date of injury per Labor Code section 5412 is June 21, 2022, the date of Dr. Sirakoff's initial report.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's credible testimony established a clear connection between injury and job duties as LVN over years of employment.
Favours Applicant prevailed
Corroborated by job description and medical evidence, no rebuttal, supported finding of injury AOE/COE.
From the decision · page 9Her testimony was coherent, internally consistent, and corroborated by her job description as an LVN and the other evidence in the record from the medical reports. Her answers about her job duties and injury appeared credible, providing consistent, detailed testimony that aligned with the facts about her injury. No other witnesses rebutted her testimony, and the applicant established a clear connection between the injury and the performance of her job duties over the years of working as an LVN. (Report, page 4.)
Dr. Sirakoff's June 21, 2022 report found applicant disabled and provided first medical evidence of cumulative trauma injury.
Favours Applicant prevailed
Established both knowledge and disability required for section 5412 date of injury.
From the decision · page 12FINDINGS OF FACT 4. The date of injury per Labor Code section 5412 is June 21, 2022, the date of Dr. Sirakoff's initial report.
PQME Dr. Bernicker's opinion was based on an incorrect legal theory (post-termination defense) and inadequate medical history.
Favours Applicant prevailed
Opinion not substantial evidence, so did not rebut applicant's case.
From the decision · page 11Here PQME Dr. Bernicker's opinions clearly suffer from being based on an incorrect legal theory, post termination defense, and he fails to explain how the post termination defense effected his reasoning and opinions. Further, PQME Dr. Bernicker relied on an inadequate medical history in providing opinions. Thus, we agree with the WCJ that PQME Dr. Bernicker's medical reports and opinions are not substantial evidence.
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 clear evidence of cumulative trauma injury over course of employment as LVN; opinions and reporting found substantial evidence of cumulative injury to neck and back.
Relied upon by WCJ and WCAB as substantial evidence supporting injury AOE/COE.
From the decision · page 11Here Dr. Sirakoff's opinions are consistent with applicant's credible testimony and the medical history. Dr. Sirakoff's opinions and reporting are substantial evidence of applicant's cumulative injury to the neck and back.
Found no cumulative injury; relied on post-termination defense and absence of proof that work activities worsened non-industrial neck and back pain; opinion not found to be substantial evidence due to reliance on incorrect legal theory and inadequate medical history.
Rejected by WCJ and WCAB as not substantial evidence due to reliance on incorrect legal theory and inadequate medical history.
From the decision · page 11Here PQME Dr. Bernicker's opinions clearly suffer from being based on an incorrect legal theory, post termination defense, and he fails to explain how the post termination defense effected his reasoning and opinions. Further, PQME Dr. Bernicker relied on an inadequate medical history in providing opinions. Thus, we agree with the WCJ that PQME Dr. Bernicker's medical reports and opinions are not substantial evidence.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, § 3600; South Coast Framing v. WCAB (Clark); McAllister v. WCAB; Rosas v. WCAB
To be compensable, an injury must arise out of and occur in the course of employment; employment must be a contributing cause. Medical evidence that industrial causation was reasonably probable constitutes substantial evidence.
Applied to find applicant's injury AOE/COE based on credible testimony and substantial medical evidence.
From the decision · page 93. Substantial Evidence The Petition asserts that there is no substantial evidence as to date of injury or injury, and further that PQME Dr. Bernicker's opinions are substantial evidence while those of Dr. Sirakoff are not substantial. (Petition page 5, line 18, to page 13, line 22.) To be compensable, an injury must arise out of and occur in the course of employment. (Lab. Code, § 3600.) All that is required is that employment be one of the contributing causes without which the injury would not have occurred. The employee bears the burden of proving injury AOE/COE by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3600(a); 3202.5.) Medical evidence that industrial causation was reasonably probable, although not certain, constitutes substantial evidence for a finding of injury AOE/COE. (McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 416-417 [33 Cal.Comp.Cases 660].) "That burden manifestly does not require the applicant to prove causation by scientific certainty." (Rosas v. Worker's Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692, 1701 [58 Cal.Comp.Cases 313].) We note the WCJ found the applicant credible:
Lab. Code, § 5412
Section 5412: The date of injury in cases of occupational diseases or cumulative injuries is the 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 present or prior employment.
Applied to set date of injury as June 21, 2022, when applicant first had knowledge and disability per Dr. Sirakoff's report.
From the decision · page 72. Date of Injury The Petition asserts as error the finding of the section 5412 date of injury as June 2, 2022. Error is asserted in part because the applicant had knowledge of injury before June 2, 2022, and in part because defendant contends there is no substantial evidence as to the date of disability. (Petition pages 2 to 7.) We note that a cumulative injury is defined as one "occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment." The date of a cumulative injury shall be the date determined under section 5412. (Lab. Code, § 3208.1.) Section 5412 states: "The date of injury in cases of occupational diseases or cumulative injuries is the date upon which the employee first suffered disability therefrom and either knew, or
What proof carried it
The evidence the panel weighed, by kind.
PQME Dr. Bernicker relied on an inadequate medical history and incorrect legal theory (post-termination defense) in finding no industrial injury.
From the decision · page 11Here PQME Dr. Bernicker's opinions clearly suffer from being based on an incorrect legal theory, post termination defense, and he fails to explain how the post termination defense effected his reasoning and opinions. Further, PQME Dr. Bernicker relied on an inadequate medical history in providing opinions. Thus, we agree with the WCJ that PQME Dr. Bernicker's medical reports and opinions are not substantial evidence.
Applicant's testimony was coherent, internally consistent, and corroborated by job description and medical reports; no other witnesses rebutted her testimony.
From the decision · page 9Her testimony was coherent, internally consistent, and corroborated by her job description as an LVN and the other evidence in the record from the medical reports. Her answers about her job duties and injury appeared credible, providing consistent, detailed testimony that aligned with the facts about her injury. No other witnesses rebutted her testimony, and the applicant established a clear connection between the injury and the performance of her job duties over the years of working as an LVN. (Report, page 4.)
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