ADJ2466188 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted for limited purpose to affirm January 2, 2023 Order Vacating and November 21, 2022 Findings and Award; all findings and orders affirmed.

Petition for Reconsideration filed by defendant Old Republic Insurance on December 16, 2022, challenging findings related to bilateral knees; WCJ issued original decision November 21, 2022 and Order Changing Administrators December 5, 2022; WCAB granted reconsideration to affirm January 2, 2023 Order Vacating and November 21, 2022 Findings and Award.

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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 knees

The medical evidence, including opinions from Dr. John Lane and Dr. Hall, supports that the applicant sustained a cumulative trauma injury to her bilateral knees through her employment with Basic American and ConAgra, with liability shared by ConAgra due to continuing employment through 2005.

From the decision · page 2We now turn to the merits of the case. In addition to the reasons stated by the WCJ in the Report, we note that the issue of cumulative trauma to the bilateral knees did not arise until agreed medical examiner (AME) John Lane, M.D., opined about it in his March 2, 2008 report. (Exhibit 9, at p. 2.) Therefore, the requisite knowledge necessary for determination of the date of injury under Labor Code section 5412 did not exist until that time. While defendant cites to a 1999 report by William Bowman, M.D., as evidence of cumulative trauma, that report is not in evidence and is only briefly summarized by Dr. Lane in his July 19, 2007 report. (Exhibit 8 at p. 7.) Defendant appears to be arguing that applicant suffered a cumulative trauma to her knees during her employment with Basic American and a separate cumulative trauma to her hips during her employment with ConAgra. However, the medical evidence in the record, as summarized by the WCJ in the Report, supports a single cumulative trauma through 2005.

The facts that decided it

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

AME John Lane opined that the applicant sustained cumulative trauma injury to bilateral knees through employment with Basic American and ConAgra ending in 2005.

Favours Applicant prevailed

This medical opinion established the date of injury and liability shared by ConAgra for the bilateral knees.

From the decision · page 2We now turn to the merits of the case. In addition to the reasons stated by the WCJ in the Report, we note that the issue of cumulative trauma to the bilateral knees did not arise until agreed medical examiner (AME) John Lane, M.D., opined about it in his March 2, 2008 report. (Exhibit 9, at p. 2.) Therefore, the requisite knowledge necessary for determination of the date of injury under Labor Code section 5412 did not exist until that time. While defendant cites to a 1999 report by William Bowman, M.D., as evidence of cumulative trauma, that report is not in evidence and is only briefly summarized by Dr. Lane in his July 19, 2007 report. (Exhibit 8 at p. 7.) Defendant appears to be arguing that applicant suffered a cumulative trauma to her knees during her employment with Basic American and a separate cumulative trauma to her hips during her employment with ConAgra. However, the medical evidence in the record, as summarized by the WCJ in the Report, supports a single cumulative trauma through 2005.

Dr. Hall and Dr. Bowman opined that the applicant's knee condition worsened during employment with ConAgra.

Favours Applicant prevailed

These medical opinions supported the finding of aggravation and increased disability due to ConAgra employment.

From the decision · page 6She limped because of her hips and thinks that the movement at work made her knees get worse, although she did limp prior to starting work at CON AGRA. (MOH/SOE 10/3/2022 9:22-24; 10: 10-21 ). Dr. Hall opined in his deposition of June 23, 2008 pp 8-9 (App. & Old Republic Jt. Ex. 9) that the work during the employment at CON AGRA aggravated the industrial injuries to the knees at BASIC AMERICAN. Dr. Bowman in his report of 12/29/2005 report that her knees had not improved and had gotten worse (Jt. App. and CIGA Ex. 19). The AME in the BASIC AMERICAN CASES, John Lane MD also opined that the work with CON AGRA aggravated

Applicant's credible testimony and medical records showed worsening condition and inability to work after 2005 due to knee and hip injuries.

Favours Applicant prevailed

Supported findings on temporary disability, permanent disability, and need for medical treatment.

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.

AMERelied upon

Opined that the applicant had cumulative trauma injury to bilateral knees through employment with Basic American and ConAgra, and apportioned 70% of disability to bilateral knees to date of injury ending in 2005.

Dr. Lane's medical opinions were relied upon to support the finding of cumulative trauma injury and apportionment of disability.

From the decision · page 2We now turn to the merits of the case. In addition to the reasons stated by the WCJ in the Report, we note that the issue of cumulative trauma to the bilateral knees did not arise until agreed medical examiner (AME) John Lane, M.D., opined about it in his March 2, 2008 report. (Exhibit 9, at p. 2.) Therefore, the requisite knowledge necessary for determination of the date of injury under Labor Code section 5412 did not exist until that time. While defendant cites to a 1999 report by William Bowman, M.D., as evidence of cumulative trauma, that report is not in evidence and is only briefly summarized by Dr. Lane in his July 19, 2007 report. (Exhibit 8 at p. 7.) Defendant appears to be arguing that applicant suffered a cumulative trauma to her knees during her employment with Basic American and a separate cumulative trauma to her hips during her employment with ConAgra. However, the medical evidence in the record, as summarized by the WCJ in the Report, supports a single cumulative trauma through 2005.

AMERelied upon

Provided permanent disability rating of 53% with 70% apportionment to bilateral knees.

Dr. Lane's reports were the basis for the permanent disability rating and apportionment findings.

otherRelied upon

Opined that work during employment at ConAgra aggravated the industrial injuries to the knees at Basic American.

Dr. Hall's deposition supported the finding of aggravation of knee injuries during ConAgra employment.

From the decision · page 6She limped because of her hips and thinks that the movement at work made her knees get worse, although she did limp prior to starting work at CON AGRA. (MOH/SOE 10/3/2022 9:22-24; 10: 10-21 ). Dr. Hall opined in his deposition of June 23, 2008 pp 8-9 (App. & Old Republic Jt. Ex. 9) that the work during the employment at CON AGRA aggravated the industrial injuries to the knees at BASIC AMERICAN. Dr. Bowman in his report of 12/29/2005 report that her knees had not improved and had gotten worse (Jt. App. and CIGA Ex. 19). The AME in the BASIC AMERICAN CASES, John Lane MD also opined that the work with CON AGRA aggravated

otherRelied upon

Reported that the applicant's knees had not improved and had gotten worse as of 12/29/2005.

Dr. Bowman's report was cited as evidence of worsening knee condition supporting cumulative trauma injury.

From the decision · page 6She limped because of her hips and thinks that the movement at work made her knees get worse, although she did limp prior to starting work at CON AGRA. (MOH/SOE 10/3/2022 9:22-24; 10: 10-21 ). Dr. Hall opined in his deposition of June 23, 2008 pp 8-9 (App. & Old Republic Jt. Ex. 9) that the work during the employment at CON AGRA aggravated the industrial injuries to the knees at BASIC AMERICAN. Dr. Bowman in his report of 12/29/2005 report that her knees had not improved and had gotten worse (Jt. App. and CIGA Ex. 19). The AME in the BASIC AMERICAN CASES, John Lane MD also opined that the work with CON AGRA aggravated

The rules the panel named

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

California Labor Code

Labor Code section 5412

Statute of limitations for cumulative trauma injury date of knowledge.

From the decision · page 2We now turn to the merits of the case. In addition to the reasons stated by the WCJ in the Report, we note that the issue of cumulative trauma to the bilateral knees did not arise until agreed medical examiner (AME) John Lane, M.D., opined about it in his March 2, 2008 report. (Exhibit 9, at p. 2.) Therefore, the requisite knowledge necessary for determination of the date of injury under Labor Code section 5412 did not exist until that time. While defendant cites to a 1999 report by William Bowman, M.D., as evidence of cumulative trauma, that report is not in evidence and is only briefly summarized by Dr. Lane in his July 19, 2007 report. (Exhibit 8 at p. 7.) Defendant appears to be arguing that applicant suffered a cumulative trauma to her knees during her employment with Basic American and a separate cumulative trauma to her hips during her employment with ConAgra. However, the medical evidence in the record, as summarized by the WCJ in the Report, supports a single cumulative trauma through 2005.

California Labor Code

Labor Code section 5500

Controls liability for cumulative trauma injury continuing through employment period.

From the decision · page 6Defendant's argument that Labor Code § 54 12 dictates that there could be no injury related to the Con Agra employment is erroneous. The issue of injury, disability and need for medical treatment is a medical issue. The fact that applicant had two specific injuries resulting in disability and need for medical treatment does not foreclose the possibility that the applicant sustained a new cumulative trauma injury to her knees due to the employment at Con Agra. In fact, Dr. John Lane opined that the applicant had, in fact increased the injury and disability to her bilateral knees through her continuing employment with Basis American through 2000 and Con Agra through 2005. Therefore, Labor Code § 5500 controls. Since the employment continued through 2005, the liability for the bilateral knees is shared by Con Agra.

California Labor Code

Labor Code section 4658

Calculation of permanent disability indemnity including weekly rate and attorney fees.

ADJ2466188 · February 14, 2023

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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