ADJ11713524 · November 5, 2024

The Appeals Board found that the applicant's date of injury under Labor Code section 5412 is December 2, 2020, based on medical confirmation by QME Dr. Viswanath, and that the issue of separate cumulative injuries with subsequent employer All-Time Maintenance is deferred due to lack of joinder and undeveloped record.

From the decision · page 10Accordingly, we will rescind the F&O, and substitute findings that applicant's Labor Code section 5412 date of injury is December 2, 2020, and that the issue of whether applicant sustained separate cumulative injuries during his employment with defendant and his subsequent employment with All-Time Maintenance is deferred. We make no changes to Findings 1, 2 and 3. We will return the matter for further proceedings consistent with this decision.

Applicant's Labor Code section 5412 date of injury is December 2, 2020, based on medical confirmation by QME Dr. Purab Viswanath.

Favours Applicant prevailed

This date establishes the start of the employer liability period under Labor Code section 5500.5 and affects which employer is liable for the cumulative injury.

From the decision · page 8PQME Dr. Viswanath reported that he had sustained permanent disability to the hips. (Ex. X, PQME Report of Dr. Viswanath, December 2, 2020, pp. 2, 19-21; see City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal.App.3d 467 [50 Cal.Comp.Cases 53] (stating that for purposes of determining the date of a cumulative injury, it is not assumed that a worker has knowledge that the disability is job-related without medical confirmation, unless the nature of the disability and the worker's qualifications are such that he or she should have recognized the relationship); Pacific Indemnity Company v. Industrial Accident Commission (Rotondo) (1950) 34 Cal.2d 726, 729 [15 Cal.Comp.Cases 37, 39] (stating an injured worker's knowledge that he or she sustained symptoms does not constitute knowledge that the symptoms were work related).) It follows that applicant's Labor Code section 5412 date of cumulative injury is December 2, 2020.

Applicant sustained permanent disability to the hips from cumulative injury; apportioned 75% disability to employment at Los 3 Amigos Market and 25% to All-Time Maintenance; medical confirmation supports date of injury as December 2, 2020.

Medical confirmation required for date of injury under Labor Code section 5412; Dr. Viswanath's report provided this confirmation and apportionment opinion.

From the decision · page 2Purab Viswanath, M.D., and he issued a report on December 2, 2020. He stated that:

Labor Code sections 5412 and 5500.5

Labor Code section 5412 for establishing date of injury; Labor Code section 5500.5 for determining employer liability period for cumulative injury.

Used to determine the date of injury and the liable employer period for cumulative injury claims.

From the decision · page 7Here, the issue at trial was whether applicant sustained cumulative injury while employed by defendant, and all other issues were deferred. (Minutes of Hearing and Summary of Evidence, June 18, 2022, p. 2:14-22.) To determine that issue, it was necessary to determine (1) when applicant sustained injury under Labor Code section 5412; and (2) whether defendant employed applicant on the earlier of either the year-long period immediately preceding applicant's Labor Code section 5412 date of injury or the date of applicant's last injurious exposure. (Lab. Code, § 5500.5(a).)

Applicant's testimony about work duties and injury history, including no treatment prior to termination and continuous work at All-Time Maintenance since November 2018.

From the decision · page 3(Ex. Z, PQME Report of Dr. Viswanath, December 6, 2021, p. 5.) On June 16, 2022, the matter proceeded to trial on the issue of AOE/COE. Applicant raised the issue of presumption of injury pursuant to Labor Code Section 5402. Defendant contended that "they have no liability under Labor Code Section 5412 and 5500.5 based upon the opinion of the QME that the injurious CT exposure occurred through 11/3/2020 at the subsequent employer Alltime Maintenance." Defendant further contended "the medical reports of Dr. Opoku are deficient or are not substantial evidence to support a finding of injury AOE/COE" and that "that the case is barred by the post-termination provisions of Labor Code Section 3600(a)(10)." (Minutes of Hearing and Summary of Evidence, June 18, 2022, (MOH) p. 2:14-22.) Applicant testified in relevant part as follows: He worked at 3 Amigos Market until October 19, 2018, when he was terminated. Prior to his termination, he stated that he worked his usual and customary duties, and he did not seek treatment prior to his termination. He believes he started working for All-time Maintenance in November of 2018. He still works for All-time Maintenance, and it will be four years in November renovating apartments continuously. (MOH, pp. 4-7.)