ADJ12963083 · March 6, 2026

The WCAB found that the WCJ's decision barring the claim based on statute of limitations was not supported by substantial evidence and rescinded it, returning the matter for further proceedings. The WCJ had found the claim barred because applicant knew or should have known of the injury earlier, but the WCAB found the date of injury to be the QME report date, making the claim timely.

From the decision · page 12Accordingly, given that the WCJ's decision in this case (ADJ12963083) to bar applicant's claim based on the statute of limitations is not based on admitted evidence or substantial evidence, it must be our decision after reconsideration to rescind the F&O and return this matter to the trial level for further development of the record consistent with this decision. We affirm the WCJ's decision to dismiss applicant's claim in ADJ13167130 pursuant to the parties' stipulation.

The initial QME evaluation report dated July 31, 2019 established the date of injury for the cumulative hearing loss claim.

Favours Applicant prevailed

This date was critical to determining the timeliness of the claim under the statute of limitations.

From the decision · page 3On July 31, 2019, QME Dr. Smith issued an Otolaryngologic Qualified Medical Evaluation finding that applicant suffers from a "[b]ilateral neurosensory loss of hearing and tinnitus" that is worse on the left than on the right, caused by "asymmetrical loud noise exposure, both recreationally and at work." (Joint Exh. BB, pp. 17-18.) Dr. Smith apportioned applicant's hearing loss 50% to recreational loud noise trauma from his shooting hobby and prior noise exposure and 50% to his work as a bus driver for San Mateo. (Id. at p. 19.) Dr. Smith was provided with

Applicant did not have medical advice or knowledge that his hearing loss was compensable until the QME report.

Favours Applicant prevailed

Applicant's lack of knowledge meant the statute of limitations did not start until the QME report date.

From the decision · page 8The WCJ's conclusion that applicant must have known he sustained a disability resulting from a job-related cumulative trauma injury because he and his wife knew that he had hearing related symptoms is not enough for defendant to meet its burden of proof. (See Johnson, supra, 163 Cal.App.3d at 471, citing to Chambers, supra, and Pacific Indem. Co. v. Industrial Acc. Comm. (1950) 34 Cal.2d 726.). In addition, applicant did not need miss any work as a result of his symptoms and did not retire from his job because of those symptoms. He therefore had no reason to believe that his symptoms resulted in any "disability" under the workers' compensation laws by something called "a cumulative trauma injury" until he was informed of those facts by the QME in this case on July 31, 2019. No employee is required to guess as to whether any particular symptom, illness, or injury is industrial or not, and "a layman's mistaken diagnosis...is not fatal to a claim for workers' compensation benefits [citation]..." (Nielsen, supra, 164 Cal.App.3d at p. 931.)

Applicant suffers from bilateral neurosensory hearing loss and tinnitus caused 50% by recreational noise and 50% by work as a bus driver.

The QME report established the date of injury as July 31, 2019, which was critical to the statute of limitations determination.

From the decision · page 3On July 31, 2019, QME Dr. Smith issued an Otolaryngologic Qualified Medical Evaluation finding that applicant suffers from a "[b]ilateral neurosensory loss of hearing and tinnitus" that is worse on the left than on the right, caused by "asymmetrical loud noise exposure, both recreationally and at work." (Joint Exh. BB, pp. 17-18.) Dr. Smith apportioned applicant's hearing loss 50% to recreational loud noise trauma from his shooting hobby and prior noise exposure and 50% to his work as a bus driver for San Mateo. (Id. at p. 19.) Dr. Smith was provided with

City of Fresno v. WCAB (Johnson) (1985) 163 Cal.App.3d 467

An 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.

Applied to determine whether applicant knew or should have known his hearing loss was job related for statute of limitations purposes.

From the decision · page 4Furthermore, the Court of Appeal has 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. See also Sperry Corp. and Gab Business Services. Inc. v. WCAB (Malkowski) (1988) 53 CCC 333 (writ denied); CBS v. WCAB (White) (1979) 44 CCC 777 (writ denied); City of Los Angeles v. WCAB (Calvert) (1978) 43 CCC 1280.

Applicant's credible testimony that he did not know his hearing loss was compensable until the QME report

From the decision · page 8The WCJ's conclusion that applicant must have known he sustained a disability resulting from a job-related cumulative trauma injury because he and his wife knew that he had hearing related symptoms is not enough for defendant to meet its burden of proof. (See Johnson, supra, 163 Cal.App.3d at 471, citing to Chambers, supra, and Pacific Indem. Co. v. Industrial Acc. Comm. (1950) 34 Cal.2d 726.). In addition, applicant did not need miss any work as a result of his symptoms and did not retire from his job because of those symptoms. He therefore had no reason to believe that his symptoms resulted in any "disability" under the workers' compensation laws by something called "a cumulative trauma injury" until he was informed of those facts by the QME in this case on July 31, 2019. No employee is required to guess as to whether any particular symptom, illness, or injury is industrial or not, and "a layman's mistaken diagnosis...is not fatal to a claim for workers' compensation benefits [citation]..." (Nielsen, supra, 164 Cal.App.3d at p. 931.)

No evidence that Hearing Resource Center medical professionals rendered opinions on causation

From the decision · page 9Finally, we do not agree with the WCJ or the dissent that applicant's testimony that he "believes" he was told of an industrial connection by someone at the Hearing Resource Center is substantial evidence that he knew or should have known his disability was job-related under section 5412, especially because applicant did not identify who it "might" have been that told him, or whether it was a medical professional with the expertise to render an opinion about the relative causation of a cumulative trauma injury to his hearing given all the noise exposure found in this case. Moreover, there is nothing in the records from the Hearing Resource Center that can confirm that any medical professional rendered any opinion on causation whatsoever. We note defendant's questioning of applicant during trial regarding the June 18, 2014 visit to audiologist Rebecca Marulescu at the Hearing Resource Center. (MOH/SOE, February 11, 2021, p. 7; see Joint Exh. EE, Audiology Reports, p. 27.) Defendant asked applicant whether his wife questioned the audiologist or a doctor if his hearing loss was work-related, and applicant testified that he had no memory of that. (Ibid.) Applicant also testified that he was not asked at Kaiser if his hearing issues were work-related. (Ibid.)