ADJ11380772 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration filed by Bernal and Robbins on behalf of defendants was considered and denied by the WCAB panel, adopting and incorporating the WCJ report.

Read the official decision →

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.

Medical treatment / UR / IMRApplicant prevailedback · shoulders · elbows · forearms · wrists · hands · fingers · eye vision

The WCJ found the medical record required further development because the QME and PTP reports did not address both the cumulative trauma and specific injury claims adequately, thus not constituting substantial medical evidence.

From the decision · page 5According to PTP Dr. Michael Salomon's initial report of July 27, 2018, the applicant's injury was caused by cumulative trauma in the performance of her job duties as a packer from May 1, 2017 to July 3, 201810. Dr. Salomon did not address the specific forklift injury claim. The QME Dr. Leisure Yu's reporting states that the applicant's complaints of pain were due to the particular forklift injury. Still, he did not comment on whether the applicant also sustained a cumulative trauma injury11. The discrepancy in the trial record regarding the date of injury thus requires further development. Neither of the medical reports constitutes substantial medical evidence in light of the omission dealing with the date(s) of injury12. Therefore, the WCJ ordered the parties to seek supplemental opinions from the two physicians who reported in the case consistent with the procedure for developing the record13.

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.

PTPRelied upon

Found causation to cumulative trauma injury from May 1, 2017 to July 3, 2018 based on job duties as a packer.

From the decision · page 4The applicant selected Michael Salomon, D.C. as her primary treating physician. Dr. Salomon's initial report dated July 27, 2018, states that the applicant's job duties as a packer were to label and organize cartons, separate trash inside cartons, put trash in bags, and stack boxes on pallets. The physical demands of her job required lifting to 25 pounds, carrying, pushing, pulling, bending at the neck, prolonged standing, constant walking, bending, kneeling, stooping, squatting, twisting, turning, hand manipulation, and gasping3. Dr. Salomon performed a physical examination of the applicant and referred her for physical therapy. Based on the applicant's history of injury, present complaints, mechanism of injury, and clinical findings, the applicant sustained a cumulative trauma work-related injury from May 1, 2017 to July 3, 20184.

QMERelied upon · orthopedics

Found specific injury on July 3, 2018 due to forklift accident but did not address cumulative trauma injury; report required further development.

From the decision · page 4The parties selected QME, Dr. Leisure Yu, to examine the applicant on April 2, 2019. The report's caption lists the date of injury as "CT May 1, 2017 to July 3, 2018." Dr. Yu's report states the applicant sustained a specific injury on July 3, 2018 to her shoulders, right elbow and arm, bilateral hands and wrists, and lower back. He does not discuss the cumulative trauma injury. The applicant sustained an injury when a coworker came driving a forklift, hit pallets next to her, and hit the applicant's back7. The applicant reported her injury to the supervisor and went to the company office to file an injury report, but the Human Resources person was not there. The applicant continued her shift and took over-the-counter pain medication that evening and treatment with Dr. Salomon8. When he was deposed, Dr. Yu confirmed that, per the history, the applicant sustained a specific injury on July 3, 20189. Shortly after Dr. Leisure Yu's deposition, the applicant's attorney filed a second application for adjudication of claim (ADJ12825012). The applicant's attorney used the exact date of injury that Dr. Yu referenced, July 3, 2018.

The rules the panel named

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

Cal. Code Regs., tit. 8, former 10492, now 10517 (eff. Jan. 1, 2020)

Pleadings may be amended by the Workers' Compensation Appeals Board to conform to proof (8 CCR 10517).

The court amended the date of injury in the application to conform to the proof based on applicant's testimony.

From the decision · page 1We agree with the WCJ that the WCAB rules permit pleadings to be amended to conform to proof. (See Cal. Code Regs., tit. 8, former § 10492, now § 10517 (eff. Jan. 1, 2020).) Moreover, the Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence or when appropriate to provide due process or fully adjudicate the issues. (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]; see also Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62 Cal.Comp.Cases 924]; Lab. Code, § 5701, 5906.) The Appeals Board also has a constitutional mandate to "ensure substantial justice in all cases" and may not leave matters undeveloped where it is clear that additional discovery is needed. (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403-404 [65 Cal.Comp.Cases 264].)

The Appeals Board has discretionary authority to develop the record when medical evidence is not substantial or to provide due process (Lab. Code, 5701, 5906).

The WCJ ordered further development of the medical record to address both injuries.

From the decision · page 1We agree with the WCJ that the WCAB rules permit pleadings to be amended to conform to proof. (See Cal. Code Regs., tit. 8, former § 10492, now § 10517 (eff. Jan. 1, 2020).) Moreover, the Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence or when appropriate to provide due process or fully adjudicate the issues. (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]; see also Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62 Cal.Comp.Cases 924]; Lab. Code, § 5701, 5906.) The Appeals Board also has a constitutional mandate to "ensure substantial justice in all cases" and may not leave matters undeveloped where it is clear that additional discovery is needed. (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403-404 [65 Cal.Comp.Cases 264].)

Lab. Code 3202

The statute of limitations and related provisions are to be liberally construed to benefit injured employees (Lab. Code 3202).

The court applied liberal construction to deny the statute of limitations defense.

From the decision · page 7The court must liberally construe the statute of limitations to provide workers' compensation benefits to an injured worker. Labor Code Section 3202 provides, "This division and Division 5 (commencing with Section 6300) shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment." Theliberal construction applies to the statute of limitations. "At the outset, it must be remembered that the provisions of the workers' compensation law dealing with the limitation of time within which proceedings for compensation may be commenced, like other parts of the law, are to be liberally construed to the end that the beneficent features thereof shall not be lost to employees, and where provisions are susceptible of an interpretation either beneficial or detrimental to an injured employee, they must be construed favorably to the employee.20" Based on the applicant's testimony and applying Labor Code Sections 3202 and 5405 to the present matter, the defendant did not sustain its burden of proving that the statute of limitations bars the applicant's specific injury claim.

Colonial Insurance Company v. Industrial Accident Commission (1945 en banc) 27 Cal. 2d 437

Equitable estoppel prevents raising statute of limitations defense when defendant's conduct contributed to delay (Colonial Insurance Company v. Industrial Accident Commission (1945 en banc) 27 Cal. 2d 437).

The court found equitable estoppel barred the statute of limitations defense due to defendant's failure to provide notices.

ADJ11380772 · July 27, 2021

What the panel ordered

What was disputed, and how it came out

Your case already resembles someone else’s. Find whose.

The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

About this page