ADJ14904660 · February 5, 2024

The WCJ found the applicant's testimony credible and supported by substantial evidence including the PQME report of Dr. Moheimani, who found the injuries industrially caused and medically probable, establishing AOE/COE for the cumulative trauma injury claim.

From the decision · page 4the services of a Panel Qualified Medical Evaluator (PQME), Dr. Moheimani. PQME. Dr.

The applicant provided credible testimony that he informed his employer of his symptoms before termination, overcoming the post-termination defense, which the WCJ found credible and supported by the evidence.

From the decision · page 8C. The Injury Is Not Barred By Labor Code 3600(a)(10) For injuries occurring on or after July 16, 1993, Labor Code section 3600(a)(10) provides the employer with a "post-termination" defense to a claim of injury. The purpose of this defense is to protect the employer from retaliatory and fraudulent claims made by employees who have been terminated or laid off. Faulkner v. WCAB (2004) 69 CCC 1161 (writ denied). This statutory defense eliminates liability for compensation for certain claims that are filed subsequent to a termination, layoff or receipt of notice thereof. The general rule is that an injury is not compensable if a claim "[is] filed after notice of termination or layoff, including voluntary layoff, and... the claim is for an injury occurring prior to the time of notice of termination or layoff." In order for Labor Code 3600(a)(10) to come into play, the employer must establish: (1) that the claim for compensation was filed after the notice of termination or layoff; and (2) that the claim is for an injury occurring before the time of notice of termination or layoff. Hart v. WCAB (2002) 67 CCC 961 (writ denied). The Employer has met their burden here. However, that does not end the inquiry. Once the employer has established these elements, the burden shifts to the employee to prove that the post-termination defense does not apply. Chico v.

Applicant's credible testimony that he reported symptoms to employer before termination.

Favours Applicant prevailed

This testimony overcame the employer's post-termination defense and supported compensability.

From the decision · page 9credible testimony that he informed Maria Vazquez of his symptoms to his neck, and later his knee. Maria Vasquez testified that no such reporting took place. In the opinion of the undersigned WCJ, after carefully weighing and considering the witnesses' demeanor while testifying and the manner in which they testified; their personal interest or lack of interest in the outcome of the proceeding; their capacity to accurately perceive, recollect, and communicate the matters on which they testified; and their attitudes toward this proceeding and towards their giving of testimony, that the applicant was credible and that he did report the injury.

Found industrial cumulative trauma injury to cervical spine, right hand, right wrist, and left knee; injuries medically probable and AOE/COE despite some inconsistencies; continuous trauma period from May 18, 2020 to May 18, 2021.

The PQME report was admitted as Joint Exhibit 1 and relied upon by the WCJ and WCAB to find industrial causation and AOE/COE.

From the decision · page 4the services of a Panel Qualified Medical Evaluator (PQME), Dr. Moheimani. PQME. Dr.

Labor Code section 5412

Date of injury for occupational diseases or cumulative injuries is when employee first suffered disability and knew or should have known it was caused by employment (Lab. Code, § 5412).

Applied to amend date of injury to July 15, 2021, and to assess knowledge of industrial cause.

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the Report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in the WCJ's Report, which we adopt and incorporate, except as noted below, and for the reasons stated below, we will grant reconsideration for the sole purpose of amending the November 30, 2023 Findings of Fact, Order & Award to make a finding of the Labor Code1 section 5412 date of injury. We otherwise affirm the WCJ's decision.

City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal.App.3d 467

Employer has burden to prove employee knew or should have known disability was industrially caused; employee not charged without medical advice (Johnson, supra).

Applied to assess knowledge and burden of proof on employer.

From the decision · page 2The employer has the burden of proving that the employee knew or should have known their disability was industrially caused. (Johnson, supra, at p. 471, citing Chambers v. Workers' Comp. Appeals Bd., supra, 69 Cal. 2d at p. 559.) That burden is not sustained merely by a showing that the employee knew they had some symptoms. (Johnson, supra, at p. 471, citing Chambers, supra, at p. 559.) In general, an employee is not charged with knowledge that their disability is job-related without medical advice to that effect. (Johnson, supra, at p. 473; Newton v. Workers' Comp. Appeals Bd. (1993) 17 Cal.App.4th 147, 156, fn. 16 [58 Cal.Comp.Cases 395].)

Labor Code sections 5952 and 5953

Award must be supported by substantial evidence; findings on fact conclusive if supported by entire record (LC 5952, 5953).

Applied to uphold WCJ findings based on entire record and substantial evidence.

From the decision · page 6B. There Exists Substantial Evidence of Industrial Injury It has been well established under California workers' compensation law that an award for benefits must be supported by substantial evidence. (LeVesque v. WCAB (1970) 35 CCC 16). Labor Code section 5952(d) requires an award of the appeals board to be "supported by substantial evidence." Furthermore, Labor Code section 5953 provides in part: "The findings and conclusions of the appeals board on questions of fact are conclusive and final and are not subject to review. Such questions of fact shall include ultimate facts and the findings and conclusions of the appeals board." Together, LC 5952 and LC 5953 have been interpreted as establishing that "[t]he findings and conclusions of the appeals board on questions of fact are conclusive and final" as long as, "based upon the entire record," they are "supported by substantial evidence." (LeVesque at 25 fn. 19) So if the appeals board's findings are supported by inferences that may fairly be drawn from evidence even though the evidence is susceptible to opposing inferences, the reviewing court will not disturb the award. (Crown Appliance v.

Labor Code section 3600(a)(10)

Post-termination defense under LC 3600(a)(10) applies if claim filed after notice of termination and injury occurred before notice; employee can overcome by showing employer awareness or other conditions (LC 3600(a)(10)).

Applied to assess post-termination defense and employee rebuttal.

From the decision · page 8C. The Injury Is Not Barred By Labor Code 3600(a)(10) For injuries occurring on or after July 16, 1993, Labor Code section 3600(a)(10) provides the employer with a "post-termination" defense to a claim of injury. The purpose of this defense is to protect the employer from retaliatory and fraudulent claims made by employees who have been terminated or laid off. Faulkner v. WCAB (2004) 69 CCC 1161 (writ denied). This statutory defense eliminates liability for compensation for certain claims that are filed subsequent to a termination, layoff or receipt of notice thereof. The general rule is that an injury is not compensable if a claim "[is] filed after notice of termination or layoff, including voluntary layoff, and... the claim is for an injury occurring prior to the time of notice of termination or layoff." In order for Labor Code 3600(a)(10) to come into play, the employer must establish: (1) that the claim for compensation was filed after the notice of termination or layoff; and (2) that the claim is for an injury occurring before the time of notice of termination or layoff. Hart v. WCAB (2002) 67 CCC 961 (writ denied). The Employer has met their burden here. However, that does not end the inquiry. Once the employer has established these elements, the burden shifts to the employee to prove that the post-termination defense does not apply. Chico v.

Applicant's credible testimony on injury reporting and symptoms

From the decision · page 9credible testimony that he informed Maria Vazquez of his symptoms to his neck, and later his knee. Maria Vasquez testified that no such reporting took place. In the opinion of the undersigned WCJ, after carefully weighing and considering the witnesses' demeanor while testifying and the manner in which they testified; their personal interest or lack of interest in the outcome of the proceeding; their capacity to accurately perceive, recollect, and communicate the matters on which they testified; and their attitudes toward this proceeding and towards their giving of testimony, that the applicant was credible and that he did report the injury.