What the panel ordered
Findings and Order in ADJ8259453 affirmed; Findings, Award and Order in ADJ8261355 rescinded and substituted; matter returned to trial level for further proceedings.
Petition for reconsideration granted; Decision After Reconsideration issued affirming Findings and Order in ADJ8259453 and rescinding and substituting Findings, Award and Order in ADJ8261355; matter returned to trial level for further proceedings.
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.
Permanent disability issue deferred for further proceedings after finding cumulative trauma claim not barred by Statute of Limitations.
From the decision · page 8Finally, we address applicant's contention that he should be awarded permanent disability for hearing loss and tinnitus based on Dr. Serebrakian's finding of seven percent WPI. Although the WCJ deferred the issue of permanent disability caused by the neck injury, the WCJ's finding that applicant's claim of injury to other body parts is time-barred is tantamount to a final order denying permanent disability for hearing loss and tinnitus. In light of our finding that applicant's claim of cumulative trauma injury to all the body parts is not time-barred, we conclude that the WCJ must revisit the issue of the overall permanent disability resulting from the entire cumulative trauma, i.e., all the body parts in issue. It also follows that the WCJ's finding of no apportionment was premature, because the WCJ at the same time attempted to defer the issue of permanent disability, which encompasses the issue of apportionment. (Lab. Code, § 4663(c).) In revisiting the issues of overall permanent disability and apportionment, the WCJ may further develop the record as deemed necessary or appropriate. (McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138 [Appeals Board en banc].)
Defendant failed to meet burden of proof to show cumulative trauma claim was barred by the Statute of Limitations; applicant filed claim within one year of knowledge of injury.
From the decision · page 4Turning to the merits of the Findings, Award and Order in ADJ8261355, and based upon our review of the record and applicable law, we find merit in applicant's contention that the WCJ erred in placing the burden of proof on applicant to show that his claim of cumulative trauma injury is not barred by the Statute of Limitations. Rather, the burden of proof is on defendant to show the claim is barred by the Statute of Limitations. We conclude that defendant has failed its burden of proof. As our Decision After Reconsideration, we will rescind the Findings, Award and Order in ADJ8261355 and replace it with Findings consistent with the above conclusion.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant filed claim within one year of being informed of cumulative trauma injury by Dr. Watson on September 1, 2011.
Favours Applicant prevailed
This established the claim was timely under Labor Code section 5412 and 5405(a).
From the decision · page 8It is undisputed that applicant filed his claim of cumulative trauma injury on March 28, 2012. This date is within one year of "the first time [applicant] was ever informed that he might have cumulative trauma injury to his neck and wrists," by Dr. Watson on September 1, 2011. The application having been filed within one year of the date of cumulative trauma injury under section 5412, it is not barred by the Statute of Limitations under section 5405(a).
Defendant failed to prove the claim was barred by the Statute of Limitations for cumulative trauma injuries to right knee, sleep disorder, high blood pressure, hearing loss and tinnitus.
Favours Applicant prevailed
Failure to meet burden of proof led to rescission of prior Findings and Award and substitution of new Findings.
From the decision · page 4Turning to the merits of the Findings, Award and Order in ADJ8261355, and based upon our review of the record and applicable law, we find merit in applicant's contention that the WCJ erred in placing the burden of proof on applicant to show that his claim of cumulative trauma injury is not barred by the Statute of Limitations. Rather, the burden of proof is on defendant to show the claim is barred by the Statute of Limitations. We conclude that defendant has failed its burden of proof. As our Decision After Reconsideration, we will rescind the Findings, Award and Order in ADJ8261355 and replace it with Findings consistent with the above conclusion.
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.
Applicant sustained hearing loss and tinnitus from cumulative trauma injury through April 9, 2009; assessed 7% Whole Person Impairment.
Supported applicant's claim of industrial hearing loss and tinnitus with permanent disability rating.
From the decision · page 6Dr. Serebrakian opined that Applicant sustained injury of hearing loss and tinnitus resulting from the cumulative trauma injury through April 9, 2009. Applicant reported that his employer has tested him for hearing loss which he was aware of. No evidence was introduced as to when Applicant was first informed that his hearing loss and tinnitus may be a result of a cumulative trauma injury. Therefore, Applicant's claim for hearing loss and tinnitus are statutorily barred pursuant to Labor Code § 5412.
From the decision · page 5Armen Serebrakian, M.D. serves as the panel qualified medical evaluator for Applicant's alleged hearing injuries. Samuel Sobol, M.D. serves as the panel qualified medical evaluator for Applicant's alleged internal injuries. Applicant's orthopedic complaints were initially evaluated by George Glancz, M.D. serving in the capacity of the panel qualified medical evaluator. Alice Martinson, M.D. then assumed the role of the PQME for Applicant's orthopedic complaints when Dr. Glancz retired.
From the decision · page 5Armen Serebrakian, M.D. serves as the panel qualified medical evaluator for Applicant's alleged hearing injuries. Samuel Sobol, M.D. serves as the panel qualified medical evaluator for Applicant's alleged internal injuries. Applicant's orthopedic complaints were initially evaluated by George Glancz, M.D. serving in the capacity of the panel qualified medical evaluator. Alice Martinson, M.D. then assumed the role of the PQME for Applicant's orthopedic complaints when Dr. Glancz retired.
From the decision · page 5Armen Serebrakian, M.D. serves as the panel qualified medical evaluator for Applicant's alleged hearing injuries. Samuel Sobol, M.D. serves as the panel qualified medical evaluator for Applicant's alleged internal injuries. Applicant's orthopedic complaints were initially evaluated by George Glancz, M.D. serving in the capacity of the panel qualified medical evaluator. Alice Martinson, M.D. then assumed the role of the PQME for Applicant's orthopedic complaints when Dr. Glancz retired.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5409
Burden of proof for Statute of Limitations is on defendant as an affirmative defense.
Defendant failed to meet burden to prove claim barred by Statute of Limitations.
From the decision · page 4Turning to the merits of the Findings, Award and Order in ADJ8261355, and based upon our review of the record and applicable law, we find merit in applicant's contention that the WCJ erred in placing the burden of proof on applicant to show that his claim of cumulative trauma injury is not barred by the Statute of Limitations. Rather, the burden of proof is on defendant to show the claim is barred by the Statute of Limitations. We conclude that defendant has failed its burden of proof. As our Decision After Reconsideration, we will rescind the Findings, Award and Order in ADJ8261355 and replace it with Findings consistent with the above conclusion.
Labor Code section 5412
Date of injury for cumulative trauma is when employee first suffered disability and knew or should have known it was work-related.
Applicant filed claim within one year of knowledge of injury, so claim not barred.
From the decision · page 7Under Labor Code section 5412, "[t]he date of injury in cases of...cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment."
Labor Code section 4663(c)
Permanent disability and apportionment issues deferred pending further proceedings.
Permanent disability issue deferred for further proceedings after finding claim not barred.
From the decision · page 8Finally, we address applicant's contention that he should be awarded permanent disability for hearing loss and tinnitus based on Dr. Serebrakian's finding of seven percent WPI. Although the WCJ deferred the issue of permanent disability caused by the neck injury, the WCJ's finding that applicant's claim of injury to other body parts is time-barred is tantamount to a final order denying permanent disability for hearing loss and tinnitus. In light of our finding that applicant's claim of cumulative trauma injury to all the body parts is not time-barred, we conclude that the WCJ must revisit the issue of the overall permanent disability resulting from the entire cumulative trauma, i.e., all the body parts in issue. It also follows that the WCJ's finding of no apportionment was premature, because the WCJ at the same time attempted to defer the issue of permanent disability, which encompasses the issue of apportionment. (Lab. Code, § 4663(c).) In revisiting the issues of overall permanent disability and apportionment, the WCJ may further develop the record as deemed necessary or appropriate. (McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138 [Appeals Board en banc].)
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony that he was first informed of cumulative trauma injury on September 1, 2011 by Dr. Watson.
From the decision · page 7In this case, applicant testified at trial on July 21, 2020 that "the first time he was ever informed that he might have cumulative trauma injury to his neck and wrists" was September 1, 2011, when he saw Dr. Watson. The doctor "advised [applicant] as to a possible cause of his neck injury and carpal tunnel injury, and advised him that he needed surgery to remove two disks from his neck." We further note that applicant had been referred to Dr. Watson by Dr. McGann, who saw applicant for his shoulders in July 2011. However, applicant did not testify that Dr. McGann advised him that his shoulder problems were related to work by way of cumulative trauma. (See Summary of Evidence, 7/21/20, pp. 5-6.) Defense counsel cross-examined applicant at trial, but elicited no testimony about applicant's knowledge of work-related disability or cumulative trauma injury. In its answer herein, defendant claims that applicant's knowledge is demonstrated by his
Defendant failed to produce evidence of date of cumulative trauma injury to right knee, sleep disorder, high blood pressure, hearing loss and tinnitus.
From the decision · page 8However, the WCJ erred in finding that "applicant's cumulative trauma claim is not statutorily barred pursuant to Labor Code section 5412 for injury to the neck, only."6 As noted before, defendant has the burden of proving the Statute of Limitations defense. However, defendant failed to establish the date of cumulative trauma injury to applicant's right knee, sleep disorder, high blood pressure, hearing loss and tinnitus. Accordingly, we conclude that the entirety of applicant's claim of cumulative trauma injury is not time-barred.
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