ADJ9807190 — California WCAB decision

What the panel ordered

The WCAB denied the defendant's Petition for Reconsideration, affirming the finding of industrial injury and tolling the statute of limitations due to defendant's failure to provide required notice.

Defendant sought reconsideration of the WCJ's Findings and Order of December 7, 2020, which found applicant sustained presumptive industrial injury under Labor Code section 3212.10.

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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.

AOE/COEApplicant prevailedlungs

The WCJ found the applicant suffered valley fever (pneumonia) during employment, supported by credible testimony and medical evidence, and the defendant did not rebut the presumption of industrial injury.

From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Order of December 7, 2020, wherein it was found that applicant sustained presumptive injury while employed by the State of California, Department of Corrections and Rehabilitation (CDCR). In finding industrial injury, the WCJ found that the pneumonia presumption for peace offers working for CDCR in a custodial role codified in Labor Code section 3212.10 applied to this matter, and that applicant's claim was 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 suffered from valley fever (pneumonia) during employment, requiring hospitalization.

Favours Applicant prevailed

This fact established the industrial injury presumption under Labor Code section 3212.10.

From the decision · page 1We will deny the defendant's Petition. We find that the Labor Code section 3212.10 presumption arose for the reasons stated by the WCJ in the Report.1 As noted by the WCJ, the applicant amply proved that he suffered from coccidioidomycosis (commonly known as valley fever). The WCJ found applicant's testimony that he was diagnosed and hospitalized with valley fever to be credible. A WCJ's credibility

Defendant failed to rebut the presumption of industrial injury.

Favours Applicant prevailed

Without rebuttal, the presumption stood, favoring the applicant's claim.

From the decision · page 2Thus, applicant had valley fever during his period of service which required hospitalization. Dr. Grodan testified that valley fever constitutes pneumonia. (October 10, 2019 deposition at pp. 101-102.) Therefore, applicant had pneumonia that developed or manifested itself during his service in a custodial role at CDCR. The burden thus shifted to defendant to show that applicant did not develop industrial pneumonia. However, defendant never rebutted the presumption. To the contrary, Dr. Grodan found applicant's condition to be industrial even without applying the presumption.2

Defendant did not provide required written notice of potential eligibility for benefits.

Favours Applicant prevailed

This failure tolled the statute of limitations, preventing the claim from being barred.

From the decision · page 4in former Labor Code section 5402 and former Administrative Rule 9880.3 Since defendant has not introduced evidence that it provided applicant with the notice, or that applicant acquired actual knowledge of his workers' compensation rights, regardless of applicants' date of injury, the statute of limitations was tolled by virtue of this violation, and applicant's claim is not barred by the statute 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.

QMERelied upon · internist

Dr. Grodan testified that valley fever constitutes pneumonia and found the applicant's condition to be industrial even without the presumption.

Dr. Grodan linked valley fever to the applicant's lung condition and supported the industrial injury finding.

From the decision · page 2determinations are "entitled to great weight." (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) The earliest medical records given to panel qualified medical evaluator, internist Paul J. Grodan, M.D., including records from 1998 and 2000, list a history of valley fever. (January 17, 2019 deposition at p. 16; June 13, 2019 deposition at p. 58; October 10, 2019 deposition at p. 98.) Dr. Grodan testified that valley fever was endemic where the applicant worked (June 13, 2019 deposition at p. 62), and the applicant also testified that other prison employees and prisoners were afflicted with valley fever during his time of service. (Minutes of Hearing and Summary of Evidence of September 14, 2020 trial at pp. 7, 9.) Additionally, the doctor who treated applicant's valley fever, Greg. C. Warner, M.D., wrote a December 14, 2014 note confirming his treatment of applicant for valley fever. Defendant does not allege that this note is not genuine.

PTPRelied upon

Dr. Warner treated the applicant for valley fever and confirmed the diagnosis in a December 14, 2014 note.

The treating physician's note confirmed the diagnosis of valley fever, supporting the applicant's claim.

From the decision · page 2determinations are "entitled to great weight." (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) The earliest medical records given to panel qualified medical evaluator, internist Paul J. Grodan, M.D., including records from 1998 and 2000, list a history of valley fever. (January 17, 2019 deposition at p. 16; June 13, 2019 deposition at p. 58; October 10, 2019 deposition at p. 98.) Dr. Grodan testified that valley fever was endemic where the applicant worked (June 13, 2019 deposition at p. 62), and the applicant also testified that other prison employees and prisoners were afflicted with valley fever during his time of service. (Minutes of Hearing and Summary of Evidence of September 14, 2020 trial at pp. 7, 9.) Additionally, the doctor who treated applicant's valley fever, Greg. C. Warner, M.D., wrote a December 14, 2014 note confirming his treatment of applicant for valley fever. Defendant does not allege that this note is not genuine.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 3202.5

Preponderance of the evidence standard in workers' compensation proceedings.

The tribunal applied this standard to evaluate the evidence of valley fever diagnosis and industrial injury.

From the decision · page 2Defendant argues that we cannot be certain of applicant's diagnosis of valley fever without contemporaneous medical records. However, certainty is not the evidentiary standard in workers' compensation proceedings. Rather, the proper standard is a "preponderance of the evidence," meaning "evidence that, when weighed with that opposed to it, has more convincing force and the greater probability of truth." (Lab. Code, § 3202.5.) Defendant's apparent argument that applicant made up a diagnosis of valley fever in 1998 and 2000, almost 15 years before developing significant lung problems, crosses into the supernatural.

Former Administrative Rule 9880

Employer's duty to notify injured employee of benefits and rights within 5 working days of knowledge of injury.

The tribunal applied this rule to find defendant failed to provide required notice, tolling the statute of limitations.

From the decision · page 3Any employer upon receiving knowledge of an injury to an employee as defined in Labor Code Section 3208, or notice or knowledge of a claimed injury sufficient to afford an opportunity to make an investigation into the facts, shall within 5 working days advise the injured employee, or his or her dependents in event of death, of the benefits to which the employee or dependents may be entitled. The advisory document shall be in writing, but need not be in any particular form, and shall include in non-technical terms, advice as to the right to receive medical care, to select or change the treating physician pursuant to the provisions of Labor Code Section 4600, to receive temporary disability indemnity, permanent disability indemnity, death benefits and vocational rehabilitation where appropriate. The document shall also contain information as to the services of Rehabilitation Consultants and Information and Assistance Officers located in the offices of the Division of Industrial Accidents, Workers' Compensation Appeals Board, and of the services of the Worker's Compensation Appeals Board as final arbiter of claims.

Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Martin) (1985) 39 Cal.3d 57

The remedy for breach of employer's duty to notify is tolling of the statute of limitations if the employee is prejudiced by the breach.

The tribunal applied this precedent to toll the statute of limitations due to defendant's failure to notify applicant.

From the decision · page 4The Supreme Court has held that "the remedy for breach of an employer's duty to notify is a tolling of the statute of limitations if the employee, without that tolling, is prejudiced by the breach." (Martin, supra, 39 Cal.3d at p. 64.)

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's credible testimony about diagnosis and hospitalization for valley fever.

From the decision · page 1We will deny the defendant's Petition. We find that the Labor Code section 3212.10 presumption arose for the reasons stated by the WCJ in the Report.1 As noted by the WCJ, the applicant amply proved that he suffered from coccidioidomycosis (commonly known as valley fever). The WCJ found applicant's testimony that he was diagnosed and hospitalized with valley fever to be credible. A WCJ's credibility

Documentary evidencefavours Applicant prevailed

Defendant failed to provide required notice of potential eligibility, tolling the statute of limitations.

From the decision · page 4in former Labor Code section 5402 and former Administrative Rule 9880.3 Since defendant has not introduced evidence that it provided applicant with the notice, or that applicant acquired actual knowledge of his workers' compensation rights, regardless of applicants' date of injury, the statute of limitations was tolled by virtue of this violation, and applicant's claim is not barred by the statute of limitations.

Medical recordsfavours Applicant prevailed

Medical records and testimony showing valley fever was endemic at applicant's workplace and affected others.

From the decision · page 2determinations are "entitled to great weight." (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) The earliest medical records given to panel qualified medical evaluator, internist Paul J. Grodan, M.D., including records from 1998 and 2000, list a history of valley fever. (January 17, 2019 deposition at p. 16; June 13, 2019 deposition at p. 58; October 10, 2019 deposition at p. 98.) Dr. Grodan testified that valley fever was endemic where the applicant worked (June 13, 2019 deposition at p. 62), and the applicant also testified that other prison employees and prisoners were afflicted with valley fever during his time of service. (Minutes of Hearing and Summary of Evidence of September 14, 2020 trial at pp. 7, 9.) Additionally, the doctor who treated applicant's valley fever, Greg. C. Warner, M.D., wrote a December 14, 2014 note confirming his treatment of applicant for valley fever. Defendant does not allege that this note is not genuine.

Other evidencefavours Applicant prevailed

Defendant failed to rebut the presumption of industrial injury.

From the decision · page 2Thus, applicant had valley fever during his period of service which required hospitalization. Dr. Grodan testified that valley fever constitutes pneumonia. (October 10, 2019 deposition at pp. 101-102.) Therefore, applicant had pneumonia that developed or manifested itself during his service in a custodial role at CDCR. The burden thus shifted to defendant to show that applicant did not develop industrial pneumonia. However, defendant never rebutted the presumption. To the contrary, Dr. Grodan found applicant's condition to be industrial even without applying the presumption.2

ADJ9807190 · March 1, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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The rules the panel named

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