ADJ14370367 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied

Petition for Reconsideration filed by defendant and denied by the Appeals Board

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 prevailedbilateral upper extremities · shoulders · neck

The court found injury based on medical evidence from QME Dr. Kaveeshvar and treating physician Dr. Dorian, despite some inconsistencies in applicant's testimony and credibility concerns raised by the QME.

From the decision · page 5Defendant petitions for reconsideration of the court's finding of AOE/COE based on the QME and treating doctors' findings of industrial injury on a cumulative trauma basis from applicant's work as a tailor for nearly 20 years due to alleged applicant's credibility issues. Defendant petitions for reconsideration that the statute of limitations did not bar the 2021 claim based on defendant's contention of an earlier date of injury in 2016 in spite of the doctor not finding the complaints to be industrial at that time.

Statute of limitations

The facts that decided it

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

Medical opinions from Dr. Dorian and Dr. Kaveeshvar found cumulative trauma injury caused by applicant's job duties.

Favours Applicant prevailed

These opinions established causation and supported the finding of injury despite applicant's inconsistent testimony.

From the decision · page 7Here, the medical reports by both the Qualified Medical Evaluator Hirsh Kaveeshvar (in multiple reports) and the treating physician Saro Dorian found that applicant's job duties as a tailor which consisted of operating a sewing machine to produce 2000 to 1500 pieces of jeans per day from the beginning of applicant's employment in 1999 to the end of applicant's employment in 2020 respectively, with Koos Manufacturing (and its predecessor) resulted in a cumulative trauma orthopedic injury. (App. Ex. 4 Dr. Dorian 3/8/21 report for date of exam 2/24/21, causation paragraph; Jt. Ex 1, Dr. Kaveeshvar report dated 8/31/21 pg. 38-39 Causation of Injury; Jt. Ex.1 Dr. Kaveeshvar report 2/7 /22 report pg. 8, last paragraph; Jt. Ex. 1, Dr. Kaveeshvar report dated 2/23/22, pg. 8 Causation paragraph; Jt. Ex. 1, Dr. Kaveeshvar report 6/5/23, pg. 26 Causation of Injury paragraph) Also, Dr. Kaveeshvar noted abnormal objective findings in the nerve conduction studies of the upper extremities. (Jt. Ex. 1, Dr. Kaveeshvar 8/31/21 report at pg. 11, Upper extremity EMO; NCS 3/25/21; pg. 37 Test Results Upper Extremity) and cervical and lumbar MRIs (Dr. Kaveeshvar 6/5/23 report pg. 11, MRI of Cervical Spine and pg. 12 MRI Lumbar Spine (taken from Dr. Dorian's final report) Therefore, applicant met the burden of proof in proving industrial injury.

Applicant did not have actual knowledge of industrial injury until February 24, 2021, when Dr. Dorian provided medical opinion confirming injury.

Favours Applicant prevailed

This established the legal date of injury and supported timeliness of claim under statute of limitations.

From the decision · page 9Therefore, it was not until February 24, 2021, that applicant obtained the actual knowledge that his complaints were industrially related as Dr. Dorian took note of the applicant's history as a sewing machine operator m1d found that that applicant's complaints were due to his job duties. In addition, there was compensable disability as Dr. Dorian declared the applicant totally temporarily disabled at that time. (App. Ex. 4, Dr. Dorian Report 2.24.21 report, PDF pg. 7, Work Status Section) Therefore, the concurrence of knowledge and disability happened on February 24, 2021.

The rules the panel named

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

Maher v. WCAB (1983) 48 Cal. Comp. Cases 326

For cumulative trauma injury, medical opinion is required to establish causation; lay testimony alone is insufficient.

Court relied on medical opinions of QME and treating physician to establish causation.

From the decision · page 7Here, the medical reports by both the Qualified Medical Evaluator Hirsh Kaveeshvar (in multiple reports) and the treating physician Saro Dorian found that applicant's job duties as a tailor which consisted of operating a sewing machine to produce 2000 to 1500 pieces of jeans per day from the beginning of applicant's employment in 1999 to the end of applicant's employment in 2020 respectively, with Koos Manufacturing (and its predecessor) resulted in a cumulative trauma orthopedic injury. (App. Ex. 4 Dr. Dorian 3/8/21 report for date of exam 2/24/21, causation paragraph; Jt. Ex 1, Dr. Kaveeshvar report dated 8/31/21 pg. 38-39 Causation of Injury; Jt. Ex.1 Dr. Kaveeshvar report 2/7 /22 report pg. 8, last paragraph; Jt. Ex. 1, Dr. Kaveeshvar report dated 2/23/22, pg. 8 Causation paragraph; Jt. Ex. 1, Dr. Kaveeshvar report 6/5/23, pg. 26 Causation of Injury paragraph) Also, Dr. Kaveeshvar noted abnormal objective findings in the nerve conduction studies of the upper extremities. (Jt. Ex. 1, Dr. Kaveeshvar 8/31/21 report at pg. 11, Upper extremity EMO; NCS 3/25/21; pg. 37 Test Results Upper Extremity) and cervical and lumbar MRIs (Dr. Kaveeshvar 6/5/23 report pg. 11, MRI of Cervical Spine and pg. 12 MRI Lumbar Spine (taken from Dr. Dorian's final report) Therefore, applicant met the burden of proof in proving industrial injury.

Labor Code Section 5412

Date of injury for cumulative trauma is when employee obtains medical knowledge of industrial causation.

Court found date of injury as February 24, 2021, when medical opinion confirmed industrial injury.

From the decision · page 9Therefore, it was not until February 24, 2021, that applicant obtained the actual knowledge that his complaints were industrially related as Dr. Dorian took note of the applicant's history as a sewing machine operator m1d found that that applicant's complaints were due to his job duties. In addition, there was compensable disability as Dr. Dorian declared the applicant totally temporarily disabled at that time. (App. Ex. 4, Dr. Dorian Report 2.24.21 report, PDF pg. 7, Work Status Section) Therefore, the concurrence of knowledge and disability happened on February 24, 2021.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's inconsistencies in testimony were not outcome determinative; court focused on medical evidence and found inconsistencies due to passage of time and lack of sophistication in memory.

From the decision · page 8Defendant's contention that applicant's testimony did not support AOE/COE is misplaced. The court gave due weight to the applicant's testimony as applicable considering what is reasonable for a person to recall especially when testifying to events that happened some seven to eight years ago. However, the inconsistencies were not outcome determinative as the court focused on the medical evidence. If lay testimony alone is not sufficient to support a cumulative trauma injury than conversely, contradictory testimony alone is not enough to negate it.

objective testingfavours Applicant prevailed

Objective findings in nerve conduction studies and MRIs supported injury causation.

From the decision · page 7Here, the medical reports by both the Qualified Medical Evaluator Hirsh Kaveeshvar (in multiple reports) and the treating physician Saro Dorian found that applicant's job duties as a tailor which consisted of operating a sewing machine to produce 2000 to 1500 pieces of jeans per day from the beginning of applicant's employment in 1999 to the end of applicant's employment in 2020 respectively, with Koos Manufacturing (and its predecessor) resulted in a cumulative trauma orthopedic injury. (App. Ex. 4 Dr. Dorian 3/8/21 report for date of exam 2/24/21, causation paragraph; Jt. Ex 1, Dr. Kaveeshvar report dated 8/31/21 pg. 38-39 Causation of Injury; Jt. Ex.1 Dr. Kaveeshvar report 2/7 /22 report pg. 8, last paragraph; Jt. Ex. 1, Dr. Kaveeshvar report dated 2/23/22, pg. 8 Causation paragraph; Jt. Ex. 1, Dr. Kaveeshvar report 6/5/23, pg. 26 Causation of Injury paragraph) Also, Dr. Kaveeshvar noted abnormal objective findings in the nerve conduction studies of the upper extremities. (Jt. Ex. 1, Dr. Kaveeshvar 8/31/21 report at pg. 11, Upper extremity EMO; NCS 3/25/21; pg. 37 Test Results Upper Extremity) and cervical and lumbar MRIs (Dr. Kaveeshvar 6/5/23 report pg. 11, MRI of Cervical Spine and pg. 12 MRI Lumbar Spine (taken from Dr. Dorian's final report) Therefore, applicant met the burden of proof in proving industrial injury.

ADJ14370367 · November 18, 2024

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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