ADJ10353716 — California WCAB decision

What the panel ordered

Petition for Reconsideration is denied.

Defense counsel submitted a timely Petition for Reconsideration of the Opinion on Decision and Findings of Fact and Award filed by the Workers' Compensation Appeals Board on 11/18/2022.

Read the official decision →

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.

Statute of limitationsDefendant prevailedhead · cervical spine · right upper extremity · elbow · wrists · hands · arms · left upper extremity

The Applicant did not have medical confirmation that her condition was industrial until the new PQME evaluation, so the statute of limitations had not run.

From the decision · page 3The issue was whether the Applicant was barred by the Statute of Limitations had run, based on the timing of when she knew or should have known that her condition was work related.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant did not have medical confirmation of industrial causation until PQME evaluation in 2021.

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 · Orthopedic

Determined in prior claim that complaints were diffuse, non-organic, migratory, polysomatic and not industrially related; later found new cumulative trauma causing industrial condition.

The PQME's prior and new evaluations were central to determining when the Applicant had knowledge of industrial causation.

From the decision · page 3At that time, the WCJ relied up on the findings of the PQME, Timothy Ross, MD. The PQME, at that time determined in various reports, that the Applicant's complaints then were diffuse and non-organic in nature. PQME, Timothy Ross, MD determined the complaints were migratory, polysomatic and not industrially related (Finding and Award, Opinion on Decision dated 03/22/2012 -EAMS ID 40378885 page 4 of 7 [page 2 of the Opinion on Decision]).

otherRelied upon

Reports noted date of injury to prior cumulative trauma and did not indicate a new condition.

Reports did not show knowledge of a new industrial condition before PQME evaluation.

From the decision · page 6The Defense will argue that the Applicant had knowledge of industrial causation from the reporting of Pain Control Solutions/Dr. Capen (Defense Exhibit D). The Applicant did continue to treat after the finding of non-industrial causation. However, Dr. Capen's reports still noted the date of injury to the prior cumulative, and does not indicate a new condition. The Kaiser records offered in Defense Exhibit E likewise show[s] treatment. However, there is no reference to a work related injury.

otherRelied upon

Records indicated treatment from initial cumulative trauma case prior to WCJ determinations that conditions were non-industrial.

Records did not show knowledge of industrial causation before WCJ findings.

From the decision · page 6The Defense offers the records of Timothy Hunt, MD (Defense Exhibit C). I look at the report of Dr. Ahn (Defense Exhibit C, page 67 of 250). This still indicates treatment from the initial cumulative trauma case, and prior to the determinations of the WCJ that the conditions are not industrial.

The rules the panel named

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

California Labor Code Section 5412

Date of injury in cumulative injury cases is when employee first suffered disability and knew or should have known it was work related (LC 5412).

Applied to determine when statute of limitations began to run.

From the decision · page 4When looking at the Labor Code, LC 3208.1 provides that 11 [t]he date of a cumulative injury shall be the date determined under Section 5412." California Labor Code Section 5412 identifies the date of injury in cases of occupational diseases or cumulative injuries as that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment.

City of Fresno v. WCAB (Johnson) (1985) 50 CCC 53

Applicant not charged with knowledge of industrial causation without medical advice unless qualified to recognize it (City of Fresno v. WCAB (Johnson)).

Applied to find Applicant did not have knowledge of industrial causation until medical confirmation.

From the decision · page 4In the case of City of Fresno v. WCAB (Johnson), (1985) 50 CCC 53 an employee suffered from chest pain and "began believing" that the condition was industrial without the advice of a medical expert. The employer had him examined by a physician who opined that the condition was not caused by the employment. More than a year later, employee filed his claim for workers' compensation benefits. The Court of Appeal held that the employer failed to meet its burden that the employee knew or should have known that the disability was job-related. The court reasoned that the employee did not have knowledge under LC 5412, even though he formed the belief that the condition was industrial, because his belief was not based on medical advice, and because the only medical opinion determined that the disability was not job-related. The court stated, "[A]n applicant will not be charged with knowledge that his disability is job related without medical advice to that effect unless the nature of the disability and the applicant's training, intelligence and qualifications are such that applicant should have recognized the relationship between the known adverse factors involved in his employment and his disability." City of Fresno v. WCAB (Johnson) (1985) 50 CCC 53, 57-58.

ADJ10353716 · February 6, 2023

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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What the panel did with the medical opinions

The rules the panel named

What proof carried it

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