ADJ9085187 · May 29, 2025

The WCAB concluded that the medical reports obtained outside the section 4062.2 process were properly admitted and supported the award.

From the decision · page 11p. 9:13.) Defendant avers that applicant's medical-legal reporting was self-procured outside the medical-legal dispute process set forth under section 4062.2, and as such cannot be relied upon as a basis for an award.

The date of injury set at 2015 entitles the applicant to permanent disability indemnity at 2015 rates, with COLA adjustments commencing January 1, 2016.

From the decision · page 2We have considered the Petition for Reconsideration, and the contents of the Report, and we have reviewed the record in this matter. For the reasons discussed below we will rescind and restate the F&A to include a finding of a date of injury of February 13, 2015; that applicant became permanent and stationary on February 13, 2015; that the claim is not barred by the statute of limitations of Labor Code2 section 5405; that applicant's injuries caused 72 percent permanent disability; and that cost of living adjustments (COLAs) per section 4659(c) commence January 1, 2016.

The WCJ and WCAB found that the applicant did not have knowledge of a compensable disability until 2015, so the statute of limitations did not bar the claim, and the date of injury was set at February 13, 2015.

From the decision · page 7"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." (Butler, supra, 153 Cal.App.3d 327, 341.) That is, the employee must understand that he has sustained an injury resulting in disability for there to be corresponding knowledge that the disability is work-related. Defendant's contention that we should rely on Dr. Kim's assessment in 2019 of the existence of permanent disability in 1969 attempts to substitute a retroactive medical opinion approximately 50 years after the fact in place of applicant's contemporaneous understanding he had sustained an injury resulting in temporary or permanent disability. While applicant may have understood that he had sustained injuries causing pain during the course of his professional football career, the record does not establish the existence of contemporaneous temporary or permanent disability. Accordingly, we are not persuaded that applicant had the disability in 1969 necessary for the attachment of a date of injury under section 5412.

Applicant did not have contemporaneous knowledge of compensable disability until 2015.

Favours Applicant prevailed

This fact established the date of injury under section 5412 and prevented the statute of limitations from barring the claim.

From the decision · page 7"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." (Butler, supra, 153 Cal.App.3d 327, 341.) That is, the employee must understand that he has sustained an injury resulting in disability for there to be corresponding knowledge that the disability is work-related. Defendant's contention that we should rely on Dr. Kim's assessment in 2019 of the existence of permanent disability in 1969 attempts to substitute a retroactive medical opinion approximately 50 years after the fact in place of applicant's contemporaneous understanding he had sustained an injury resulting in temporary or permanent disability. While applicant may have understood that he had sustained injuries causing pain during the course of his professional football career, the record does not establish the existence of contemporaneous temporary or permanent disability. Accordingly, we are not persuaded that applicant had the disability in 1969 necessary for the attachment of a date of injury under section 5412.

Dr. Kim's 2015 medical opinion was supported by clinical evaluation and history review, unlike his retroactive 1969 opinion.

Favours Applicant prevailed

The WCAB relied on this opinion to set the permanent and stationary date and date of injury at February 13, 2015.

From the decision · page 14Here, we are not persuaded that Dr. Kim's opinion that applicant's injuries became permanent and stationary three months after discontinuing his professional athletic activities is supported by substantial evidence. (Ex. 3, Report of David Kim, M.D., dated February 13, 2015, at p. 23.) Dr. Kim offered this retroactive assessment in a report in 2015, approximately 46 years after the end of the period of alleged injurious exposure. In his report of February 13, 2015, the QME reviewed no medical records corresponding to applicant's time spent playing for the NFL. While Dr. Kim's August 3, 2018 report did review the submitted medical records, none antedated 2006. Thus, the QME's opinion was necessarily retroactive in nature, reached 46 years after the fact, and was accomplished without a review of any contemporaneous medical records. Moreover, the opinion lacks substantive explication as to the physician's reasoning or analysis. It is also unclear how the physician identified a three month time period, as opposed to any other interval, in which applicant's condition stabilized, and in any event, the physician does not describe how or why his opinions are supported in the medical record.

Dr. Kim opined that the applicant's injuries became permanent and stationary as of February 13, 2015, based on clinical evaluation and review of history, activities of daily living, and diagnostic studies, despite the retroactive nature of the opinion.

The WCAB found Dr. Kim's 2015 opinion more persuasive and supported by substantial evidence compared to his retroactive 1969 opinion, which lacked contemporaneous medical records and substantive explication.

From the decision · page 14Here, we are not persuaded that Dr. Kim's opinion that applicant's injuries became permanent and stationary three months after discontinuing his professional athletic activities is supported by substantial evidence. (Ex. 3, Report of David Kim, M.D., dated February 13, 2015, at p. 23.) Dr. Kim offered this retroactive assessment in a report in 2015, approximately 46 years after the end of the period of alleged injurious exposure. In his report of February 13, 2015, the QME reviewed no medical records corresponding to applicant's time spent playing for the NFL. While Dr. Kim's August 3, 2018 report did review the submitted medical records, none antedated 2006. Thus, the QME's opinion was necessarily retroactive in nature, reached 46 years after the fact, and was accomplished without a review of any contemporaneous medical records. Moreover, the opinion lacks substantive explication as to the physician's reasoning or analysis. It is also unclear how the physician identified a three month time period, as opposed to any other interval, in which applicant's condition stabilized, and in any event, the physician does not describe how or why his opinions are supported in the medical record.

Steele, supra, 219 Cal.App.3d 1263

Date of injury under Labor Code section 5412 sets the date for measurement of compensation payable and all other incidents of the worker's right.

Applied to determine the date of injury and corresponding indemnity rates.

From the decision · page 10Defendant also contends that the WCJ awarded permanent disability indemnity at an incorrect rate. (Petition, at p. 7:26.) Defendant avers "[t]he date of injury in this case should be 1969 and as such, the [p]ermanent impairment shall be awarded pursuant to the law in effect in 1969." (Id. at p. 8:4.) We note, however, that the section 5412 date of injury "sets the date for the measurement of compensation payable, and all other incidents of the [worker's] right." (Steele, supra, 219 Cal.App.3d at p. 1270.) Here, the date of injury of February 13, 2015 entitles applicant to permanent disability rates commensurate with the indemnity rates in effect at that time. (Finding of Fact No. 5; see also Lab. Code § 4658.) We will affirm the WCJ's findings with respect to the applicable indemnity rates, accordingly.

Labor Code section 5405

Statute of limitations under Labor Code section 5405 bars claims not filed within one year of date of injury knowledge.

Applied to bar or allow claim based on date of injury knowledge.

From the decision · page 2We have considered the Petition for Reconsideration, and the contents of the Report, and we have reviewed the record in this matter. For the reasons discussed below we will rescind and restate the F&A to include a finding of a date of injury of February 13, 2015; that applicant became permanent and stationary on February 13, 2015; that the claim is not barred by the statute of limitations of Labor Code2 section 5405; that applicant's injuries caused 72 percent permanent disability; and that cost of living adjustments (COLAs) per section 4659(c) commence January 1, 2016.

Labor Code section 4658

Permanent disability indemnity rates are set by the date of injury under Labor Code section 4658.

Applied to set indemnity rates based on date of injury.

From the decision · page 10Defendant also contends that the WCJ awarded permanent disability indemnity at an incorrect rate. (Petition, at p. 7:26.) Defendant avers "[t]he date of injury in this case should be 1969 and as such, the [p]ermanent impairment shall be awarded pursuant to the law in effect in 1969." (Id. at p. 8:4.) We note, however, that the section 5412 date of injury "sets the date for the measurement of compensation payable, and all other incidents of the [worker's] right." (Steele, supra, 219 Cal.App.3d at p. 1270.) Here, the date of injury of February 13, 2015 entitles applicant to permanent disability rates commensurate with the indemnity rates in effect at that time. (Finding of Fact No. 5; see also Lab. Code § 4658.) We will affirm the WCJ's findings with respect to the applicable indemnity rates, accordingly.

Labor Code section 4659(c)

Cost of living adjustments to permanent disability indemnity commence January 1, 2004, and annually thereafter under Labor Code section 4659(c).

Applied to order COLA adjustments starting January 1, 2016.

From the decision · page 16provides that an "employee who becomes entitled to receive a life pension or total permanent disability indemnity... shall have that payment increased annually commencing on January 1, 2004, and each January 1 thereafter, by an amount equal to the percentage increase in the "state average weekly wage" as compared to the prior year. (Lab. Code, § 4659(c).)

Labor Code section 4062.2

Medical-legal reports obtained outside the section 4062.2 process may be admissible if properly considered by the WCAB.

Applied to determine admissibility of medical reporting obtained outside the medical-legal dispute process.

From the decision · page 11p. 9:13.) Defendant avers that applicant's medical-legal reporting was self-procured outside the medical-legal dispute process set forth under section 4062.2, and as such cannot be relied upon as a basis for an award.

Applicant's testimony of lifetime aches and pains but no contemporaneous knowledge of disability

From the decision · page 9Here, the WCJ has carefully considered the issue of knowledge. The Opinion on Decision reviews the medical records submitted in evidence and concludes that "[t]here is no comment in the records...which reflects a definitive statement to the applicant by a physician the pain and problems in his hip and knee were related to a continuing trauma at the [Bengals]." (Opinion on Decision, at p. 8.) The WCJ further observes that "the applicant did give his football history to the doctors but there is no entry which clearly makes a connection between current complaints and prior activities." (Ibid.) Applicant testified to a lifetime of "aches and pains every day," but also that he strived to "to know the difference between a pain and an injury," and that as a result he "put his pain in his back pocket." (Minutes of Hearing and Summary of Evidence, dated October 1, 2015, at p.

Medical records lacked definitive statements linking pain to continuing trauma during employment

From the decision · page 9Here, the WCJ has carefully considered the issue of knowledge. The Opinion on Decision reviews the medical records submitted in evidence and concludes that "[t]here is no comment in the records...which reflects a definitive statement to the applicant by a physician the pain and problems in his hip and knee were related to a continuing trauma at the [Bengals]." (Opinion on Decision, at p. 8.) The WCJ further observes that "the applicant did give his football history to the doctors but there is no entry which clearly makes a connection between current complaints and prior activities." (Ibid.) Applicant testified to a lifetime of "aches and pains every day," but also that he strived to "to know the difference between a pain and an injury," and that as a result he "put his pain in his back pocket." (Minutes of Hearing and Summary of Evidence, dated October 1, 2015, at p.