ADJ8068969 · August 29, 2023

The WCJ and the Board found that the applicant did not sustain compensable disability or acquire requisite knowledge of work-related cumulative injury until 2011, despite earlier medical treatment in 2008. The application was timely filed within one year of the 2011 date of injury, so compensation is not barred.

From the decision · page 1Defendant Mitsui Sumitomo Insurance Company of America (Petitioner) seeks reconsideration of the June 14, 2023 Findings of Fact, wherein the workers' compensation administrative law judge (WCJ) found that applicant, while employed as a server from June 19, 2002 to May 1, 2011, sustained industrial injury to cervical and lumbar spine, psyche, right shoulder, bilateral wrists, left shoulder, mid back, headache and "multiple." The WCJ found that applicant sustained but one cumulative injury, and that the date of injury pursuant to Labor Code1 section 5412 was 2011. Accordingly, the WCJ determined that section 5405 did not bar compensation, and that the period of liability under section 5500.5 commenced in 2010.

Applicant did not sustain compensable disability or acquire knowledge of work-related cumulative injury until 2011.

Favours Applicant prevailed

This fact fixed the date of injury under Labor Code section 5412 as 2011, making the claim timely.

From the decision · page 7Cases 722] (Chambers). Also, there is no evidence of medical advice to applicant of the existence of a cumulative injuury, or its work relatedness prior to 2011. The first advice to applicant of the existence of a cumulative injury and its work-relatedness was in 2011, when applicant first met with her attorney, filed an application for adjudication, and was evaluated by primary treating physician Dr. Rubanenko who placed applicant on temporary total disability. (Ex. Y, Report of Lawrence Feiwell, M.D., April 14, 2021, p. 40.)

Applicant's medical treatment in 2008 did not result in compensable wage loss or work restrictions.

Favours Applicant prevailed

Lack of compensable disability in 2008 supported the later date of injury in 2011.

From the decision · page 5Here, Petitioner contends the disability requirement of the section 5412 date of injury was established in 2008, when applicant sought medical treatment for pain arising out of multiple body parts and conditions. (Petition, at 6:10.) Petition avers that pursuant to Allianz Ins. Group v. Workers' Comp. Appeals Bd. (Hinojosa) (1999) 64 Cal.Comp.Cases 83, 84 [1999 Cal. Wrk. Comp. LEXIS 5209] (Hinojosa), and State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998 [69 Cal.Comp.Cases 579] (Rodarte), the disability component of a section 5412 date of injury includes both compensable permanent and temporary disability. In addition, permanent disability may also be established when the injured worker is forced to seek medical attention and is prescribed splints and medication. (Petition, p. 6:3, quoting Hinojosa, supra, at p. 84.) Petitioner observes that in the present matter, applicant sought medical attention from the Ventura County Medical Clinic in April, 2008, at which time she was provided with wrist splints, and was prescribed physical therapy and medication. Applicant further reported that her symptoms interfered with her ability to drive a vehicle. (Petition, at 7:6.) Petitioner contends that the disability component was demonstrated as of the date of these treatment modalities, no later than April 18, 2008.

Found applicant sustained one cumulative trauma injury.

From the decision · page 2The WCJ issued her decision on June 14, 2023, finding in relevant part that pursuant to the opinion of AME Dr. Feiwell, applicant sustained but one cumulative trauma. (Findings of Fact, July 12, 2023, Finding of Fact No. 4.) The WCJ further found the date of injury to be 2011, and the period of liability under section 5500.5 to commence in 2010. (Finding of Fact No. 3.) The

From the decision · page 2The parties have selected Lawrence Feiwell, M.D., to act as the Agreed Medical Evaluator in orthopedic medicine, and have further selected Gabriel Wang, M.D., as the Qualified Medical Evaluator in neurology/neuropsychology. Applicant also selected primary treating physician was Gabriel Rubanenko, M.D.

Placed applicant on temporary total disability in 2011, supporting the date of injury determination.

From the decision · page 7Cases 722] (Chambers). Also, there is no evidence of medical advice to applicant of the existence of a cumulative injuury, or its work relatedness prior to 2011. The first advice to applicant of the existence of a cumulative injury and its work-relatedness was in 2011, when applicant first met with her attorney, filed an application for adjudication, and was evaluated by primary treating physician Dr. Rubanenko who placed applicant on temporary total disability. (Ex. Y, Report of Lawrence Feiwell, M.D., April 14, 2021, p. 40.)

Labor Code section 5500.5

Period of liability under Labor Code section 5500.5 is the earlier of date of injury or last day of injurious exposure plus one year.

The Board set the period of liability as May 1, 2010 to May 1, 2011, based on last day of injurious exposure.

From the decision · page 8We further note that the period of liability under section 5500.5 is set by the earlier of the date of injury or the last day of injurious exposure. Here, applicant's last day of injurious exposure was May 1, 2011, which fixes the one year period of liability as May 1, 2010 through May 1, 2011. We will amend Finding of Fact No. 3 to reflect both dates.

Labor Code section 5412

Date of injury under Labor Code section 5412 requires concurrence of knowledge of injury and disability.

The Board applied the standard to determine the date of injury as 2011, based on compensable disability and knowledge of work-relatedness at that time.

From the decision · page 6In evaluating this contention, we are guided by the admonition of the Court of Appeal, that "...the purpose of section 5412 was to prevent a premature commencement of the statute of limitations, so that it would not expire before the employee was reasonably aware of his or her injury." (J. T. Thorp v. Workers' Comp. Appeals Bd., supra, 153 Cal.App.3d 327, 341.) The date of injury requirements of section 5412 ensure that the statute of limitations does not begin to run prior to the emergence of a disability, and the accompanying knowledge of its work-relatedness.

Applicant's medical treatment in 2008 included wrist splints, physical therapy, and medication, but no compensable wage loss or work restrictions until 2011.

From the decision · page 5Here, Petitioner contends the disability requirement of the section 5412 date of injury was established in 2008, when applicant sought medical treatment for pain arising out of multiple body parts and conditions. (Petition, at 6:10.) Petition avers that pursuant to Allianz Ins. Group v. Workers' Comp. Appeals Bd. (Hinojosa) (1999) 64 Cal.Comp.Cases 83, 84 [1999 Cal. Wrk. Comp. LEXIS 5209] (Hinojosa), and State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998 [69 Cal.Comp.Cases 579] (Rodarte), the disability component of a section 5412 date of injury includes both compensable permanent and temporary disability. In addition, permanent disability may also be established when the injured worker is forced to seek medical attention and is prescribed splints and medication. (Petition, p. 6:3, quoting Hinojosa, supra, at p. 84.) Petitioner observes that in the present matter, applicant sought medical attention from the Ventura County Medical Clinic in April, 2008, at which time she was provided with wrist splints, and was prescribed physical therapy and medication. Applicant further reported that her symptoms interfered with her ability to drive a vehicle. (Petition, at 7:6.) Petitioner contends that the disability component was demonstrated as of the date of these treatment modalities, no later than April 18, 2008.

Applicant's knowledge that work activities exacerbated symptoms in 2008 was not equivalent to knowledge of work-related causation of injury.

From the decision · page 7With respect to the knowledge requirement of section 5412, defendant avers applicant's medical treatment records in 2008 demonstrate a causal link between applicant's work activities and her symptoms. (Petition, at 9:23.) We agree with the WCJ's observation, however, that knowledge that pain from an injury is exacerbated by work activities is not equivalent to knowledge that the injury is caused by work activities. (Report, at p. 3.) Additionally, while applicant may have attempted at some point to report an injury to her employer, the record does not demonstrate that applicant possessed an understanding of the nature of a cumulative injury, or had the experience, background or training necessary to recognize a relationship between her work activities and a cumulative injury. (Johnson, supra, at p. 473; Chambers v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 556, 559 [33 Cal. Comp.