What the panel ordered
Petition for Reconsideration denied.
Petition for Reconsideration filed by Applicant and denied by the WCAB panel after review of the WCJ's Report and Opinion on Decision, which were adopted and incorporated.
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.
The continuous trauma injury to left knee, right knee, right hip, neck, and back was found compensable with one continuous trauma period and the date of injury as April 1, 2014. Liability was placed on the petitioner as the sole carrier during the one-year period following the date of injury.
From the decision · page 9Based upon applicant's credible testimony and the medical reports of Dr. Michael Kimball, M.D., Dr. Peter Hanson, M.D. and Dr. John Lane, M.D., various dates, it is found that applicant sustained injury to his left knee, right knee, right hip, neck and back arising out of and occurring in the course of employment during the period 2003 to and including January 20, 2017. The date of injury pursuant to Labor Code Section 5412 is discussed below. THERE IS ONLY ONE CONTINUOUS TRAUMA PERIOD
The left knee injury on July 15, 2004 was found compensable, but the claimed compensable consequences to right knee, right hip, neck, and lumbar were not supported by medical opinion and thus not compensable consequences of the specific injury.
From the decision · page 9Based upon applicant's credible testimony and the medical reports of Dr. Michael Kimball, M.D., Dr. Peter Hanson, M.D. and Dr. John Lane, M.D., various dates, it is found that applicant sustained injury to his left knee arising out of and occurring in the course of employment on July 15, 2004. He did not sustain compensable consequence injuries to his right knee, right hip, lumbar or neck from this injury.
The date of injury for the continuous trauma claim was found to be April 1, 2014, based on the applicant's lack of knowledge of the CT injury until consulting with his attorney, and no medical advice indicating earlier knowledge.
From the decision · page 8Consequentially, it should be found that the concurrence of disability and knowledge did not occur until the Applicant had consulted with his attorney of April 1, 2014. Pursuant to Labor Code Section 5412, it is found that the date of injury is April 1, 2014.
The applicant was allowed to withdraw his election against Zurich American Insurance Company because he was mistaken about Zurich being the terminal carrier and there were no objections to the petition.
From the decision · page 11Based upon the foregoing, it found that there is good cause shown to allow the Applicant to withdraw his election. As such, there is no election against Zurich American Insurance Company by the Applicant. APPLICANT'S CLAIM IS NOT BARRED BY THE STATUTUE OF LIMITATIONS
Based on medical reports, the applicant is found to need further medical treatment for the industrial injuries to left knee, right knee, and right hip.
From the decision · page 12Dr. John Lane, M.D., various dates, it is found that applicant is in need of further medical treatment to cure or relieve from the effects of the industrial injury to his left knee in case ADJ5769266.
The claim was timely filed on April 8, 2014, within the one-year statutory period following the date of injury April 1, 2014, so it is not barred by the statute of limitations.
From the decision · page 11It was found that the date of injury herein for the continuous trauma claim was April 1, 2014. The Application for Adjudication of Claim was filed by the Applicant on April 8, 2014. Based upon that scenario, the Application was timely filed. The claim is not barred by the Statute of limitations.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant was unaware of the continuous trauma claim until consulting legal counsel on April 1, 2014.
Favours Applicant prevailed
This established the date of injury for the continuous trauma claim under Labor Code Section 5412, affecting liability and statute of limitations.
From the decision · page 5It was at that point that State Compensation Insurance Company then denied treatment. It was this denial that caused the Applicant to seek legal counsel. At that time, legal counsel explained to the Applicant that he had a potential continuous trauma injury. Applicant's attorney then filed a new Application on Applicant's behalf. Additional carriers through the period of employment were then joined. Applicant testified unrebutted that he did not know what a CT claim was until that point. He was found to be credible by the WCJ. Petitioner goes to great length to claim that Applicant had some type of constructive knowledge earlier, but this argument is without merit or justification. The Applicant was ignorant of the law. He was clearly detrimentally relying on State Compensation Insurance Fund providing him with medical treatment.
No medical records or advice indicated the applicant knew about the continuous trauma injury before April 1, 2014.
Favours Applicant prevailed
Supports the finding that the applicant did not have knowledge of the injury before consulting counsel, critical for date of injury determination.
From the decision · page 10The real issue was when did the Applicant attain the requisite knowledge that he had sustain a cumulative trauma work related injury? The employee is not charged with knowledge just because he or she had some symptoms. Medical opinion expressed to an employee that his or her disability was caused by employment is sufficient for the purposes of Labor Code Section 5412. However, an applicant is generally not deemed to understand, or have knowledge of a CT injury, unless so advised by a physician. City of Fresno v. WCAB (Johnson)(1985), 50 CCC 53. There are no medical records evidencing that this advice was given to the Applicant by any doctor or that he knew what a CT injury was in this case other than when he first consulted with his attorney on April 1, 2014.
Medical opinions found the right knee, right hip, neck, and lumbar injuries were not compensable consequences of the specific left knee injury.
Favours Defendant prevailed
This limited compensability for the specific injury claim, affecting the outcome on compensable consequences.
From the decision · page 9Based upon applicant's credible testimony and the medical reports of Dr. Michael Kimball, M.D., Dr. Peter Hanson, M.D. and Dr. John Lane, M.D., various dates, it is found that applicant sustained injury to his left knee arising out of and occurring in the course of employment on July 15, 2004. He did not sustain compensable consequence injuries to his right knee, right hip, lumbar or neck from this injury.
There was only one continuous trauma period covering the injuries to left knee, right knee, right hip, neck, and back.
Favours Applicant prevailed
This supported the finding of one CT period and affected liability and compensability determinations.
From the decision · page 9Based upon applicant's credible testimony and the medical reports of Dr. Michael Kimball, M.D., Dr. Peter Hanson, M.D. and Dr. John Lane, M.D., various dates, it is found that applicant sustained injury to his left knee, right knee, right hip, neck and back arising out of and occurring in the course of employment during the period 2003 to and including January 20, 2017. The date of injury pursuant to Labor Code Section 5412 is discussed below. THERE IS ONLY ONE CONTINUOUS TRAUMA PERIOD
Applicant's petition to rescind election against Zurich American Insurance Company was granted due to mistake about Zurich's coverage.
Favours Applicant prevailed
This affected the parties liable for the continuous trauma claim and clarified election status.
From the decision · page 11Based upon the foregoing, it found that there is good cause shown to allow the Applicant to withdraw his election. As such, there is no election against Zurich American Insurance Company by the Applicant. APPLICANT'S CLAIM IS NOT BARRED BY THE STATUTUE OF LIMITATIONS
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.
Primary treating physician for both specific and continuous trauma injuries, supporting compensability findings.
From the decision · page 4consequences. The primary treating physician was Dr. Peter Hanson, M.D. The parties to that claim utilized Dr. Michael Kimball, M.D. as the PQME.
QME who provided medical reports supporting compensability and need for further treatment.
From the decision · page 4consequences. The primary treating physician was Dr. Peter Hanson, M.D. The parties to that claim utilized Dr. Michael Kimball, M.D. as the PQME.
QME who provided medical reports supporting compensability and need for further treatment.
From the decision · page 4The second injury was an alleged continuous trauma injury during the period 2003 through January 17, 2017. This claim was for injuries to Applicant's right knee, left knee, right hip, neck and lumbar. There were several carriers for the employer during this period. This was a denied injury AOE/COE. The primary treating physician was Dr. Peter Hanson, M.D. The parties to that claim utilized Dr. John Lane, M.D. as the PQME.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code Section 5952(d); Lamb v. WCAB (1974) 39 CCC 310; E.L. Yeager Construction v. WCAB (Gatten) (2006) 71 CCC 1687
Substantial evidence must support WCAB or WCJ decisions.
Applied to evaluate medical opinions and findings of injury AOE/COE.
From the decision · page 5Any decision by the Appeals Board or a WCJ must be supported by substantial evidence. Labor Code Section 5952(d); Lamb v. WCAB (1974) 39 CCC 310. "In order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability." E.L. Yeager Construction v. WCAB (Gatten) (2006) 71 CCC 1687. Here, all of the reporting physicians both treating and in QME capacities, found that the Applicant had sustained left and right knee, right hip, neck and lumbar injuries.
Labor Code Section 5412; City of Fresno v. WCAB (Johnson)(1985) 50 CCC 53
Date of injury for cumulative trauma is when employee first suffered disability and knew or should have known injury was caused by employment.
Applied to determine date of injury for continuous trauma claim.
From the decision · page 10The real issue was when did the Applicant attain the requisite knowledge that he had sustain a cumulative trauma work related injury? The employee is not charged with knowledge just because he or she had some symptoms. Medical opinion expressed to an employee that his or her disability was caused by employment is sufficient for the purposes of Labor Code Section 5412. However, an applicant is generally not deemed to understand, or have knowledge of a CT injury, unless so advised by a physician. City of Fresno v. WCAB (Johnson)(1985), 50 CCC 53. There are no medical records evidencing that this advice was given to the Applicant by any doctor or that he knew what a CT injury was in this case other than when he first consulted with his attorney on April 1, 2014.
Labor Code Section 5500.5
Liability for continuous trauma injury is determined by Labor Code Section 5500.5 based on the date of injury and insurance coverage during the one-year period following injury.
Applied to assign liability to the insurance carrier for the continuous trauma claim.
From the decision · page 11Based upon the findings that there was one continuous trauma period and the date of injury being April 1, 2014, the one year statutory period of Labor Code Section 5500.5 would be April 1, 2013 to April 1, 2014. Cypress Insurance was not only the terminal carrier for that period but also the only carrier. As such, it is found that pursuant to Labor Code Section 5500.5 that Cypress Insurance is the insurance carrier liable in case ADJ9388767. APPLICANT'S PETITION TO RESCIND HIS ELECTION DEFENDANT ZURICH IS GRANTED
What proof carried it
The evidence the panel weighed, by kind.
Applicant's credible testimony that he did not know what a CT claim was until consulting legal counsel in 2014.
From the decision · page 5It was at that point that State Compensation Insurance Company then denied treatment. It was this denial that caused the Applicant to seek legal counsel. At that time, legal counsel explained to the Applicant that he had a potential continuous trauma injury. Applicant's attorney then filed a new Application on Applicant's behalf. Additional carriers through the period of employment were then joined. Applicant testified unrebutted that he did not know what a CT claim was until that point. He was found to be credible by the WCJ. Petitioner goes to great length to claim that Applicant had some type of constructive knowledge earlier, but this argument is without merit or justification. The Applicant was ignorant of the law. He was clearly detrimentally relying on State Compensation Insurance Fund providing him with medical treatment.
WCJ's credibility determination given great weight as the WCJ observed the demeanor of the witness and no substantial evidence to reject it.
From the decision · page 1We have given the WCJ's credibility determination great weight because the WCJ had the opportunity to observe the demeanor of the witness. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determination. (Id.)
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