ADJ10177509 · September 7, 2021

The WCJ's findings on injury and cumulative trauma were inconsistent and not supported by the evidence, leading to rescission and remand for clarification and further proceedings.

From the decision · page 1Defendant seeks reconsideration of the Findings, Award, and Order (F&A) issued by the workers' compensation administrative law judge (WCJ) on June 29, 20211. As relevant herein, the WCJ found that applicant sustained injury arising out of and in the course of employment (AOE/COE) to various body parts, that applicant sustained permanent disability in the amount of 7% after apportionment, and that there is a need for further medical treatment to various body parts.

The WCJ issued a Findings, Award, and Order inconsistent with the Opinion on Decision and not supported by the evidence admitted at trial.

Favours Defendant prevailed

This inconsistency and lack of evidentiary support made the WCJ's decision unclear and unreviewable, necessitating rescission and remand.

From the decision · page 5The issue that we face on reconsideration is that there is an insufficient record to evaluate the WCJ's F&A. Here, the WCJ issued an F&A inconsistent with the Opinion on Decision; furthermore, the F&A is not supported by the evidence admitted at trial. Additionally, the WCJ issued an award of permanent disability and further medical treatment; however, it is a single award of benefits and does not award separate benefits to each of the individual three cases. The F&A does not clearly state which body parts the WCJ found to be injured arising out of and in the course of employment in each of the separate cases. The F&A does not state to which case or cases the permanent disability award pertains. Because the F&A is ambiguous, the parties cannot discern which benefits are due and owing to the applicant and under which claim defendant is supposed to furnish and/or pay them6.

The WCJ issued a single award of benefits rather than separate awards for each of the three consolidated cases.

Favours Defendant prevailed

This failure to separately award benefits for each injury violated Labor Code sections 3208.2 and 5303, requiring separate findings and awards.

From the decision · page 5The issue that we face on reconsideration is that there is an insufficient record to evaluate the WCJ's F&A. Here, the WCJ issued an F&A inconsistent with the Opinion on Decision; furthermore, the F&A is not supported by the evidence admitted at trial. Additionally, the WCJ issued an award of permanent disability and further medical treatment; however, it is a single award of benefits and does not award separate benefits to each of the individual three cases. The F&A does not clearly state which body parts the WCJ found to be injured arising out of and in the course of employment in each of the separate cases. The F&A does not state to which case or cases the permanent disability award pertains. Because the F&A is ambiguous, the parties cannot discern which benefits are due and owing to the applicant and under which claim defendant is supposed to furnish and/or pay them6.

The F&A did not clearly state which body parts were found injured in each separate case or to which case the permanent disability award pertained.

Favours Defendant prevailed

This ambiguity prevented the parties from discerning benefits due and the defendant's obligations, requiring remand for clarification.

From the decision · page 5The issue that we face on reconsideration is that there is an insufficient record to evaluate the WCJ's F&A. Here, the WCJ issued an F&A inconsistent with the Opinion on Decision; furthermore, the F&A is not supported by the evidence admitted at trial. Additionally, the WCJ issued an award of permanent disability and further medical treatment; however, it is a single award of benefits and does not award separate benefits to each of the individual three cases. The F&A does not clearly state which body parts the WCJ found to be injured arising out of and in the course of employment in each of the separate cases. The F&A does not state to which case or cases the permanent disability award pertains. Because the F&A is ambiguous, the parties cannot discern which benefits are due and owing to the applicant and under which claim defendant is supposed to furnish and/or pay them6.

Labor Code

Labor Code section 5313

WCJ must make and file findings upon all facts involved in the controversy and refer to evidence in the opinion on decision to enable parties and Board to ascertain basis for decision.

From the decision · page 3DISCUSSION The statutory and regulatory duties of a WCJ include the issuance of a decision that complies with Labor Code section 5313.3 An adequate and complete record is necessary to understand the basis for the WCJ's decision and the WCJ shall "... make and file findings upon all facts involved in the controversy[.]" (Lab. Code, § 5313; Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 476 [2001 Cal.Wrk.Comp. LEXIS 4947] (Appeals Bd. en banc)4 (Hamilton).) As required by section 5313 and explained in Hamilton, "the WCJ is charged with the responsibility of referring to the evidence in the opinion on decision, and of clearly designating the evidence that forms the basis of

Labor Code

Labor Code section 3208.1

Defines specific and cumulative injury; WCJ must determine whether injury is specific or cumulative or multiple injuries as a question of fact.

From the decision · page 4Under the workers' compensation statutes, a compensable injury may either be a "specific" injury or a "cumulative" injury. Labor Code section 3208.1 defines injury as either: "(a) `specific,' occurring as the result of one incident or exposure which causes disability or need for medical treatment; or (b) `cumulative,' 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." Whether an applicant has sustained a specific or a cumulative injury, or multiple injuries, is question of fact which must be determined by the WCJ. (Lab. Code, § 5952; § 5953; Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th

Labor Code

Labor Code section 3208.2

Prohibits merger of multiple injuries; requires separate findings and awards for each injury.

From the decision · page 5Under Labor Code sections 3208.2 and 5303, merger of multiple injuries is prohibited, and separate findings of fact and awards for each separate injury are required. Labor Code section 3208.2 provides that "[w]hen disability, need for medical treatment, or death results from the combined effects of two or more injuries, either specific, cumulative, or both, all questions of fact and law shall be separately determined with respect to each such injury, including, but not limited to, the apportionment between such injuries of liability for disability benefits, the cost of medical treatment, and any death benefit." Labor Code section 5303 provides, in relevant part, that "[t]here is but one cause of action for each injury coming within the provisions of this division...no injury, whether specific or cumulative, shall, for any purpose whatsoever, merge into or form a part of another injury; nor shall any award based on a cumulative injury include disability caused by any specific injury or by any other cumulative injury causing or contributing to the existing disability, need for medical treatment or death."

Labor Code

Labor Code section 5303

Prohibits merger of injuries and requires separate awards for each injury.

From the decision · page 5Under Labor Code sections 3208.2 and 5303, merger of multiple injuries is prohibited, and separate findings of fact and awards for each separate injury are required. Labor Code section 3208.2 provides that "[w]hen disability, need for medical treatment, or death results from the combined effects of two or more injuries, either specific, cumulative, or both, all questions of fact and law shall be separately determined with respect to each such injury, including, but not limited to, the apportionment between such injuries of liability for disability benefits, the cost of medical treatment, and any death benefit." Labor Code section 5303 provides, in relevant part, that "[t]here is but one cause of action for each injury coming within the provisions of this division...no injury, whether specific or cumulative, shall, for any purpose whatsoever, merge into or form a part of another injury; nor shall any award based on a cumulative injury include disability caused by any specific injury or by any other cumulative injury causing or contributing to the existing disability, need for medical treatment or death."