ADJ11791173 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration filed by defendant and denied by the WCAB panel, adopting and incorporating the WCJ report.

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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 prevailedleft shoulder · bilateral knees · bilateral hearing

The WCJ and panel found the applicant sustained injury to left shoulder, bilateral knees, and hearing loss arising out of and in the course of employment based on credible testimony and medical opinions from QME Dr. Graham and Dr. Rubenstein.

From the decision · page 5Based upon the opinions of the QME's and the applicant's testimony, the undersigned found that Applicant had sustained an injury to his left shoulder, bilateral knees and hearing loss arising out of and occurring in the course of his employment and that defendant had failed to meet their burden of proof that the claim was barred by the Statute of Limitations. Based upon Dr. Graham's opinion that Applicant's condition was not yet at maximum medical improvement, Defendant was ordered to provide "Yorkers' compensation benefits and the issues of permanent disability and attorney fees were deferred. It is from these findings and order that Defendant seeks reconsideration.

The facts that decided it

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

Applicant's credible testimony that he reported shoulder and knee problems to his supervisor but was not provided a claim form or medical treatment.

Favours Applicant prevailed

Supports rejection of statute of limitations defense and finding of compensable injury.

From the decision · page 8In this case, the applicant testified that he told his supervisor that he was having problems with his shoulder and his knees prior to his retirement but his supervisor never provided him with a claims form and did not offer him medical treatment. In addition, the employer provided the applicant with a cushion for his knees after the applicant told his supervisor that his doctor had recommended it. (MOH/SOE, 11/12/20, 5:21 - 6:5.) The defendant notes that the applicant did not call any witnesses at trial to substantiate his alleged conversations with his supervisor but the court notes that the defendant failed to call any witnesses to rebut the applicant's testimony. The court found the applicant to be a credible witness.

Medical opinions from QME Dr. Graham and Dr. Rubenstein that applicant's left shoulder, bilateral knees, and hearing loss are industrially caused.

Favours Applicant prevailed

Supports finding of injury arising out of and in the course of employment.

From the decision · page 5Based upon the opinions of the QME's and the applicant's testimony, the undersigned found that Applicant had sustained an injury to his left shoulder, bilateral knees and hearing loss arising out of and occurring in the course of his employment and that defendant had failed to meet their burden of proof that the claim was barred by the Statute of Limitations. Based upon Dr. Graham's opinion that Applicant's condition was not yet at maximum medical improvement, Defendant was ordered to provide "Yorkers' compensation benefits and the issues of permanent disability and attorney fees were deferred. It is from these findings and order that Defendant seeks reconsideration.

Defendant failed to produce audiology tests during discovery, leading to exclusion of supplemental QME report.

Favours Applicant prevailed

Supports exclusion of untimely evidence and upholds medical evidence admission ruling.

From the decision · page 8Defendant contends that the undersigned erred in failing to admit into evidence Dr. Rubenstein's report dated 4/13/20. Pursuant to Labor Code section 5503(d)(3), "Discovery shall close on the date of the mandatory settlement conference. Evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference." Discovery was closed on 3/4/20 at the MSC. At that time, defendant did not object to discovery being closed or raise the issue of the admissibility of an additional report from Dr. Rubenstein. For the first time on the day of trial, Defendant sought to have this report admitted into evidence.

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.

QMERelied upon · audiology

Diagnosed bilateral sensorineural hearing loss compatible with cumulative noise exposure; no other cause found for hearing loss.

Based on work noise exposure history and audiology tests, opined hearing loss is industrially caused.

From the decision · page 4For his claimed hearing loss, the applicant was evaluated by Dr. Ronald Rubenstein as the QME. In his report dated 12/5/19, the doctor stated the applicant has a bilateral sensorineural hearing loss which is compatible with cumulative noise exposure. (Exh. E, Dr. Rubenstein report, 12/5/19, pg. 2.) In his supplemental report, the doctor further noted that from applicant's description of his work, it was sufficiently loud to cause hearing loss and it was probably likely that ear plugs alone are not sufficient for the level of noise created by this machinery. (Exh. D, Dr. Rubenstein report, 12/12/19, pg. 1.)

QMERelied upon · orthopedics

Diagnosed left shoulder chronic impingement syndrome, rule out rotator cuff tear, and bilateral patella femoral chondromalacia; opined conditions are due to cumulative trauma from employment.

Based on mechanism of injury, history, physical and radiographic findings, and medical knowledge, opined conditions are work-related.

From the decision · page 4For his orthopedic injuries, the applicant was evaluated by Dr. Scott Graham as the QME. In his report dated July 16, 2019, Dr. Graham diagnosed applicant with left shoulder chronic impingement syndrome, rule out rotator cuff tear and bilateral patella femoral chondromalacia. (Exh. B, pg. 10.) The doctor opined that "within a reasonable degree of medical probability... this claimant's left shoulder condition and bilateral knee conditions are resultant from CT with date of injury 12/23/14, his last day of work." (Exh. B, pg. 11) The doctor went on to state, "In the process of formulating opinions pertaining to causation, the medical examiner takes into account numerous factors. These include the mechanism of injury, the type of temporal onset of symptoms, the history given by the examinee, the response to various treatments, the physical examination findings, radiographic findings and the results of other pertinent objective tests, knowledge of the overall health of the individual, and other pertinent information including the examiner's experience, knowledge, and training." (Ibid.)

The rules the panel named

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

Labor Code section 5405(a)

Labor Code section 5405(a) - Statute of Limitations for filing claims within one year of injury.

Applied to determine timeliness of claim filing.

From the decision · page 7Defendant asserts that applicant's claim is barred by the Statute of Limitations under Labor Code section 5405(a) which requires that proceedings be commenced for the collection of benefits within one year of the date of injury.

Labor Code section 5412

Labor Code section 5412 - Definition of date of injury for cumulative trauma claims.

Applied to define date of injury and knowledge for cumulative trauma claims.

From the decision · page 7The date of a cumulative injury under Labor Code section 5412 "is that date upon which the employee first suffered disability therefrom and either new, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment." "Disability" in this context means either temporary or permanent disability. (State Comp. Insurance Fund v. Workers' Comp. Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998, 1003 [69 Cal.Comp.Cases 579, 582] (internal citations omitted).)

Labor Code section 5503(d)(3)

Labor Code section 5503(d)(3) - Discovery rules and admissibility of evidence after settlement conference.

Applied to exclude untimely supplemental QME report.

From the decision · page 8Defendant contends that the undersigned erred in failing to admit into evidence Dr. Rubenstein's report dated 4/13/20. Pursuant to Labor Code section 5503(d)(3), "Discovery shall close on the date of the mandatory settlement conference. Evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference." Discovery was closed on 3/4/20 at the MSC. At that time, defendant did not object to discovery being closed or raise the issue of the admissibility of an additional report from Dr. Rubenstein. For the first time on the day of trial, Defendant sought to have this report admitted into evidence.

ADJ11791173 · April 26, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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