What the panel ordered
The Board rescinded the WCJ's Findings & Order and substituted new findings that applicant sustained injury to neck, shoulders, wrists, hands, and back; the date of injury is September 1, 2020; and the post termination defense does not apply.p. 15
Applicant seeks reconsideration of the Findings & Order issued by the WCJ on July 7, 2022, which found injury arising out of employment but denied psyche/stress injury and barred claim under Labor Code section 3600(a)(10). The WCJ recommended denial of reconsideration. The Board granted reconsideration to further study factual and legal issues and issued this decision after reconsideration.
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.
Applicant established injury to neck, shoulders, wrists, hands, and back arising out of and in the course of employment by a preponderance of the evidence, supported by medical opinion of Dr. Smith and applicant's testimony.
From the decision · page 161. the applicant, age 54, while employed during the period up to July 6, 2020, as a machine operator, Occupational Number in dispute, at Los Angeles, California, by OWENS CORNING ROOFING AND ASPHALT, LLC, sustained injury arising out of and occurring in the course of employment to his neck, right and left shoulder, right and left wrist and hand, and back.
Defendant failed to meet burden to establish post termination defense because the date of injury under section 5412 is after applicant's termination date.
From the decision · page 163. Applicant’s claim for benefits is not barred by Labor Code section 3600(a)(10).
There is medical evidence of psychiatric injury but no substantial medical opinion; issue deferred to WCJ for further development and obtaining psychiatric AME or PQME.
From the decision · page 1133, emphasis added.) The WCJ, by contrast, only discusses two skeletal medical leave of absence forms from 2019 before concluding “there is no medical evidence to establish applicant sustained a psych/stress claim.” (Opinion on Decision, pp. 1-2.) The WCJ does not discuss the 2020 and 2021 medical records which mention psychiatric/stress. A claimed cumulative psychiatric injury is the exemplar of “a scientific question, requiring a judgment based upon scientific knowledge and inaccessible to the unguided rudimentary capacities of lay arbiters.” (McLaughlin, supra, p. 839.) Here, there is medical evidence of a psychiatric injury in the form of limited reporting from chiropractor Torres and Dr. Green. What is missing is a substantial medical opinion addressing psychiatric injury. Until that opinion is obtained it is not possible to determine if there is an injury, the date of injury, nor what defenses, if any, may be applicable. The WCJ and the Appeals Board have a duty to further develop the record where there is insufficient evidence on an issue. (McClune v. Workers’ Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261].) The Appeals Board has a constitutional mandate to
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's last day of work was July 6, 2020, supported by personnel records and testimony.
Favours Applicant prevailed
Establishes the last day of occupational exposure relevant to injury period and defenses.
From the decision · page 52, lines 3-6; F&O, page finding 1.) The July 6, 2020, date is supported by the personnel records, specifically the “Employee Notification Form” dated August 11, 2020, which notes the “[l]ast day worked” was July 6, 2020. (Exhibit C, PDF p. 3.) Dr. Smith states the “neck, right and left shoulder, right and left wrist and hand, and back symptoms, impairment and associated disability are the result of the cumulative work trauma from 7/6/19 to 7/6/20,” and the “findings are consistent with the injuries claimed by the applicant.” (Joint Exhibit A, PQME Michael D. Smith, M.D., March 21, 2021, p. 38.) At trial, applicant testified “he last worked in July 2020.” (MOH, p. 7, lines 17-18.) After review, we are unable to identify any evidence contrary to the last day of work of July 6, 2020, which is well supported. Therefore, we agree with the WCJ that applicant’s last day of work, and corresponding last day of occupational exposure, is July 6, 2020. 2. It is axiomatic that in determining if there is an industrial injury it is necessary to identify the body part or parts injured. The California Supreme Court long ago confirmed the “Constitution,
Dr. Smith's medical opinion diagnosed cumulative work trauma injury to neck, shoulders, wrists, hands, and back.
Favours Applicant prevailed
Supports finding of injury arising out of employment to specific body parts.
From the decision · page 3(Joint Exhibit A, p. 2-3.) In the report, Dr. Smith reviewed applicant’s deposition transcript as well as medical records beginning on October 3, 2011. (Joint Exhibit A, pp. 15-27.) PQME Dr. Smith diagnosed cervical strain (disc disease), lumbar strain (disc disease), right and left rotator cuff syndrome, and rule out bilateral carpal tunnel syndrome. (Joint Exhibit A, p. 37.) For causation the doctor states “neck, right and left shoulder, right and left wrist and hand, and back symptoms, impairment and associated disability are the result of the cumulative work trauma from 7/6/19 to 7/6/20,” and the “findings are consistent with the injuries claimed by the applicant.” (Joint Exhibit A, p. 38.) On April 21, 2021, Dr. Smith issued a supplemental report after reviewing diagnostic testing. “Based on these test results, I am recommended that the patient be evaluated for possible lumbar disc surgery, right and left rotator cuff repair and bilateral carpal tunnel releases.” (Joint Exhibit B, PQME Michael D. Smith, M.D., April 21, 2021, pp. 1;3.) At trial on May 26, 2022, applicant testified through a Spanish interpreter that he began working for defendant on May 23, 1988, and described job duties for the position of “relief.” (MOH, p.
Date of injury under Labor Code section 5412 is September 1, 2020, based on first temporary disability and knowledge.
Favours Applicant prevailed
Determines the applicable date of injury for compensability and defenses.
From the decision · page 164. The date of cumulative injury pursuant to Labor Code section 5412 is September 1, 2020.
Defendant failed to prove post termination defense under Labor Code section 3600(a)(10) because date of injury is after termination.
Favours Applicant prevailed
Allows claim to proceed despite termination, favoring applicant's claim.
From the decision · page 163. Applicant’s claim for benefits is not barred by Labor Code section 3600(a)(10).
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.
Diagnosed cervical strain, lumbar strain, bilateral rotator cuff syndrome, and possible bilateral carpal tunnel syndrome; found symptoms and disability due to cumulative work trauma from 7/6/19 to 7/6/20; recommended evaluation for possible surgeries.
Dr. Smith's medical opinion supports finding injury to neck, shoulders, wrists, hands, and back arising out of employment.
From the decision · page 3(Joint Exhibit A, p. 2-3.) In the report, Dr. Smith reviewed applicant’s deposition transcript as well as medical records beginning on October 3, 2011. (Joint Exhibit A, pp. 15-27.) PQME Dr. Smith diagnosed cervical strain (disc disease), lumbar strain (disc disease), right and left rotator cuff syndrome, and rule out bilateral carpal tunnel syndrome. (Joint Exhibit A, p. 37.) For causation the doctor states “neck, right and left shoulder, right and left wrist and hand, and back symptoms, impairment and associated disability are the result of the cumulative work trauma from 7/6/19 to 7/6/20,” and the “findings are consistent with the injuries claimed by the applicant.” (Joint Exhibit A, p. 38.) On April 21, 2021, Dr. Smith issued a supplemental report after reviewing diagnostic testing. “Based on these test results, I am recommended that the patient be evaluated for possible lumbar disc surgery, right and left rotator cuff repair and bilateral carpal tunnel releases.” (Joint Exhibit B, PQME Michael D. Smith, M.D., April 21, 2021, pp. 1;3.) At trial on May 26, 2022, applicant testified through a Spanish interpreter that he began working for defendant on May 23, 1988, and described job duties for the position of “relief.” (MOH, p.
Provided treatment from September 1, 2020, through September 9, 2021, including noting psychiatric component in diagnoses.
Chiropractor Torres' records mention psychiatric/stress but lack substantial medical opinion; issue deferred for further development.
From the decision · page 11prior to applicant’s termination, and under subdivision 10(D), the date of injury under section 5412 is subsequent to applicant’s termination. Therefore, we will find that defendant did not meet its burden to demonstrate a post-termination claim under section 3600(a). 4. The WCJ found applicant did not sustain a psychiatric injury and stated “[a]fter reviewing the record as it relates to the alleged psych/stress claim, there is no medical evidence to establish applicant sustained a psych/stress claim arising out of and in the course of employment.” (Opinion on Decision, p. 2.) It appears, however, the claim for psychiatric/stress injury was not specifically addressed in the Petition, Answer, or Report. As early as September 1, 2020, applicant “complained of depression, stress, and insomnia,” and chiropractor Torres included a “[p]sych [sic] component” under diagnoses.
Provided treatment from November 4, 2020, through November 2, 2021, with limited reporting on psychiatric injury.
Dr. Green's limited psychiatric reporting noted but no substantial opinion; issue deferred for further development.
From the decision · page 11prior to applicant’s termination, and under subdivision 10(D), the date of injury under section 5412 is subsequent to applicant’s termination. Therefore, we will find that defendant did not meet its burden to demonstrate a post-termination claim under section 3600(a). 4. The WCJ found applicant did not sustain a psychiatric injury and stated “[a]fter reviewing the record as it relates to the alleged psych/stress claim, there is no medical evidence to establish applicant sustained a psych/stress claim arising out of and in the course of employment.” (Opinion on Decision, p. 2.) It appears, however, the claim for psychiatric/stress injury was not specifically addressed in the Petition, Answer, or Report. As early as September 1, 2020, applicant “complained of depression, stress, and insomnia,” and chiropractor Torres included a “[p]sych [sic] component” under diagnoses.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, § 3600
Injury must arise out of and occur in the course of employment (AOE/COE).
Applicant bears burden of proving injury AOE/COE by preponderance of evidence.
Lab. Code, § 5412
Date of injury for cumulative injuries is when employee first suffered disability and knew or should have known it was caused by employment.
Date of injury is September 1, 2020, based on first temporary disability and knowledge.
From the decision · page 164. The date of cumulative injury pursuant to Labor Code section 5412 is September 1, 2020.
Lab. Code, § 3600(a)(10)
Post termination defense applies if claim filed after notice of termination for injury before termination; burden on defendant to prove.
Defendant failed to meet burden as date of injury is after termination.
From the decision · page 163. Applicant’s claim for benefits is not barred by Labor Code section 3600(a)(10).
McClune v. Workers’ Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122
Board must further develop record if insufficient evidence on issue, especially psychiatric injury.
Issue of psychiatric injury deferred for further development and obtaining psychiatric AME or PQME.
From the decision · page 1133, emphasis added.) The WCJ, by contrast, only discusses two skeletal medical leave of absence forms from 2019 before concluding “there is no medical evidence to establish applicant sustained a psych/stress claim.” (Opinion on Decision, pp. 1-2.) The WCJ does not discuss the 2020 and 2021 medical records which mention psychiatric/stress. A claimed cumulative psychiatric injury is the exemplar of “a scientific question, requiring a judgment based upon scientific knowledge and inaccessible to the unguided rudimentary capacities of lay arbiters.” (McLaughlin, supra, p. 839.) Here, there is medical evidence of a psychiatric injury in the form of limited reporting from chiropractor Torres and Dr. Green. What is missing is a substantial medical opinion addressing psychiatric injury. Until that opinion is obtained it is not possible to determine if there is an injury, the date of injury, nor what defenses, if any, may be applicable. The WCJ and the Appeals Board have a duty to further develop the record where there is insufficient evidence on an issue. (McClune v. Workers’ Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261].) The Appeals Board has a constitutional mandate to
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony and medical opinion of Dr. Smith supported injury to neck, shoulders, wrists, hands, and back.
From the decision · page 3(Joint Exhibit A, p. 2-3.) In the report, Dr. Smith reviewed applicant’s deposition transcript as well as medical records beginning on October 3, 2011. (Joint Exhibit A, pp. 15-27.) PQME Dr. Smith diagnosed cervical strain (disc disease), lumbar strain (disc disease), right and left rotator cuff syndrome, and rule out bilateral carpal tunnel syndrome. (Joint Exhibit A, p. 37.) For causation the doctor states “neck, right and left shoulder, right and left wrist and hand, and back symptoms, impairment and associated disability are the result of the cumulative work trauma from 7/6/19 to 7/6/20,” and the “findings are consistent with the injuries claimed by the applicant.” (Joint Exhibit A, p. 38.) On April 21, 2021, Dr. Smith issued a supplemental report after reviewing diagnostic testing. “Based on these test results, I am recommended that the patient be evaluated for possible lumbar disc surgery, right and left rotator cuff repair and bilateral carpal tunnel releases.” (Joint Exhibit B, PQME Michael D. Smith, M.D., April 21, 2021, pp. 1;3.) At trial on May 26, 2022, applicant testified through a Spanish interpreter that he began working for defendant on May 23, 1988, and described job duties for the position of “relief.” (MOH, p.
Defendant's failure to prove post termination defense under Labor Code section 3600(a)(10).
From the decision · page 163. Applicant’s claim for benefits is not barred by Labor Code section 3600(a)(10).
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