What the panel ordered
Findings and Orders dated February 10, 2020, rescinded; new findings deferring date of injury and injury arising out of employment; compensation not barred by statute of limitations; no specific injury sustained on January 30 or February 1, 2016.
Petition for Reconsideration granted; original Findings and Orders rescinded and substituted with new findings and orders.
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.
The issue of the date of injury is deferred because applicant did not have knowledge of industrial causation prior to July 28, 2017, due to conflicting medical advice and lack of special training to recognize cumulative injury.
From the decision · page 10Accordingly, defendant has not met its burden of proving that the employee knew or should have known his disability was caused by his employment. (Johnson, supra, 163 Cal.App.3d at p. 471.) We will therefore rescind the F&O and substitute new findings deferring the issue of the date of injury per section 5412. Moreover, given our conclusion that applicant did not possess the knowledge required under section 5412 prior to July 28, 2017, and because applicant commenced proceedings for the collection of benefits less than one year later on November 3, 2017, we will find that compensation is not barred by section 5405. Because the underlying decision did not reach the issue of injury arising out of and in the course of employment, we will defer the issue. Finally, given that no party has challenged the WCJ's determinations regarding the claimed specific dates of injury, we will find that applicant did not sustain a specific injury to his low back on January 30, 2016 or on February 1, 2016.
The issue of injury arising out of and in the course of employment is deferred as it was not reached in the underlying decision.
From the decision · page 10Accordingly, defendant has not met its burden of proving that the employee knew or should have known his disability was caused by his employment. (Johnson, supra, 163 Cal.App.3d at p. 471.) We will therefore rescind the F&O and substitute new findings deferring the issue of the date of injury per section 5412. Moreover, given our conclusion that applicant did not possess the knowledge required under section 5412 prior to July 28, 2017, and because applicant commenced proceedings for the collection of benefits less than one year later on November 3, 2017, we will find that compensation is not barred by section 5405. Because the underlying decision did not reach the issue of injury arising out of and in the course of employment, we will defer the issue. Finally, given that no party has challenged the WCJ's determinations regarding the claimed specific dates of injury, we will find that applicant did not sustain a specific injury to his low back on January 30, 2016 or on February 1, 2016.
Applicant did not have the knowledge required under section 5412 prior to July 28, 2017, and commenced proceedings less than one year later, so compensation is not barred by section 5405.
From the decision · page 10Accordingly, defendant has not met its burden of proving that the employee knew or should have known his disability was caused by his employment. (Johnson, supra, 163 Cal.App.3d at p. 471.) We will therefore rescind the F&O and substitute new findings deferring the issue of the date of injury per section 5412. Moreover, given our conclusion that applicant did not possess the knowledge required under section 5412 prior to July 28, 2017, and because applicant commenced proceedings for the collection of benefits less than one year later on November 3, 2017, we will find that compensation is not barred by section 5405. Because the underlying decision did not reach the issue of injury arising out of and in the course of employment, we will defer the issue. Finally, given that no party has challenged the WCJ's determinations regarding the claimed specific dates of injury, we will find that applicant did not sustain a specific injury to his low back on January 30, 2016 or on February 1, 2016.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant did not have knowledge of industrial causation prior to July 28, 2017, due to medical advice negating such causation.
Favours Applicant prevailed
This fact negated the triggering of the statute of limitations under section 5405, favoring applicant's claim.
From the decision · page 10Accordingly, defendant has not met its burden of proving that the employee knew or should have known his disability was caused by his employment. (Johnson, supra, 163 Cal.App.3d at p. 471.) We will therefore rescind the F&O and substitute new findings deferring the issue of the date of injury per section 5412. Moreover, given our conclusion that applicant did not possess the knowledge required under section 5412 prior to July 28, 2017, and because applicant commenced proceedings for the collection of benefits less than one year later on November 3, 2017, we will find that compensation is not barred by section 5405. Because the underlying decision did not reach the issue of injury arising out of and in the course of employment, we will defer the issue. Finally, given that no party has challenged the WCJ's determinations regarding the claimed specific dates of injury, we will find that applicant did not sustain a specific injury to his low back on January 30, 2016 or on February 1, 2016.
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.
Denied existence of any relationship between applicant's disability and work exposures in July 28, 2017 report.
The July 28, 2017 report negated a finding of a date of injury under section 5412 by denying industrial causation.
From the decision · page 9Here, applicant received medical advice in the form of the July 28, 2017 medical report of Dr. Shaw that affirmatively denied the existence of any relationship between applicant's disability and work exposures. In much the same way that medical advice establishing that disability is industrial is sufficient to trigger a date of injury under section 5412, medical advice negating such a relationship would similarly negate a finding of a section 5412 date of injury. It was for this reason that the Court of Appeal in Nielsen wrote:
Concluded applicant suffered injuries as a result of employment but did not specify date or type of injury.
Supported injury arising out of employment but did not clarify date or specific injury type.
From the decision · page 3surgery. (Id. at p. 4.) On February 25, 2016, applicant underwent bilateral laminectomy with removal of disc fragments at L5. (Ibid.) Based on his clinical evaluation, a review of the medical record, and applicant's history of the injury, Dr. Sosine concluded "[applicant] did suffer injuries as a result of his employment for Tikal, Inc." (Id. at p. 12.) The report does not specify when the injury occurred, or whether applicant sustained a specific or cumulative injury.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5412
Date of injury under Labor Code section 5412 requires knowledge of compensable disability and its industrial cause.
Applied to determine the date of injury and trigger statute of limitations.
From the decision · page 4In cases involving an alleged cumulative trauma injury, the date of injury is governed by Labor Code section 5412, which holds:
Labor Code section 5405
Compensation barred if claim not filed within one year of knowledge under Labor Code section 5405.
Applied to determine if compensation was barred by statute of limitations.
From the decision · page 1Applicant seeks reconsideration of the February 10, 2020 Findings and Orders (F&O), wherein the workers' compensation administrative law judge (WCJ) found that applicant, while employed as a supervisor from February 1, 2015 to February 1, 2016, claimed to have sustained industrial injury to his low back. The WCJ found that the date of injury pursuant to Labor Code2 section 5412 was January 29, 2016, and that compensation was barred pursuant to section 5405.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony and medical advice from Dr. Shaw negating industrial causation.
From the decision · page 10Accordingly, defendant has not met its burden of proving that the employee knew or should have known his disability was caused by his employment. (Johnson, supra, 163 Cal.App.3d at p. 471.) We will therefore rescind the F&O and substitute new findings deferring the issue of the date of injury per section 5412. Moreover, given our conclusion that applicant did not possess the knowledge required under section 5412 prior to July 28, 2017, and because applicant commenced proceedings for the collection of benefits less than one year later on November 3, 2017, we will find that compensation is not barred by section 5405. Because the underlying decision did not reach the issue of injury arising out of and in the course of employment, we will defer the issue. Finally, given that no party has challenged the WCJ's determinations regarding the claimed specific dates of injury, we will find that applicant did not sustain a specific injury to his low back on January 30, 2016 or on February 1, 2016.
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About this page
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