ADJ12262190 · December 29, 2022

The WCAB found that the record lacked a comprehensive medical-legal report on causation and that the WCJ improperly relied on applicant's credibility without sufficient expert medical evidence. The case was remanded for further medical evaluation.

From the decision · page 7In this case, the record does not reflect that the parties obtained a comprehensive medical- legal report on the issue of causation of injury. As discussed above, a finding that applicant did or did not sustain an injury must be based on substantial medical evidence. Given that there is a clear need for a medical evaluation to determine compensability, the parties should obtain an evaluation following the procedure set forth in Sections 4060 and 4062.2.

The WCAB found that the employer had actual or constructive knowledge of the injury before termination, satisfying the notice requirement under Labor Code section 5402, thus the claim was not barred for untimely reporting.

From the decision · page 9Here, the testimony of defendant witness Venegas established that he first learned of the claimed injury in late February or early March 2019 from the superintendent Durant (December 12, 2019 MOH/SOE, pp. 5-6); this is evidence of actual or constructive notice which satisfies notice under section 5402. Venegas also admitted knowledge of applicant's knee complaint (though denies he knew whether it was an industrial injury) (Id. at pp. 7-8.) This was also prior to termination (Id.) Therefore, it can reasonably be concluded on the evidence presented by applicant that Venegas had knowledge of applicant's injury, which was sufficient knowledge on the part of the defendants to meet the requirement for actual notice or at least notice sufficient to cause the defendants to make an investigation.

No comprehensive medical-legal report on causation was obtained by the parties.

Favours Applicant prevailed

Without expert medical evidence, the WCJ's finding on injury causation was unsupported.

From the decision · page 7In this case, the record does not reflect that the parties obtained a comprehensive medical- legal report on the issue of causation of injury. As discussed above, a finding that applicant did or did not sustain an injury must be based on substantial medical evidence. Given that there is a clear need for a medical evaluation to determine compensability, the parties should obtain an evaluation following the procedure set forth in Sections 4060 and 4062.2.

Employer had actual or constructive knowledge of applicant's injury before termination.

Favours Applicant prevailed

This satisfied the notice requirement under Labor Code section 5402, preventing claim bar for untimely reporting.

From the decision · page 9Here, the testimony of defendant witness Venegas established that he first learned of the claimed injury in late February or early March 2019 from the superintendent Durant (December 12, 2019 MOH/SOE, pp. 5-6); this is evidence of actual or constructive notice which satisfies notice under section 5402. Venegas also admitted knowledge of applicant's knee complaint (though denies he knew whether it was an industrial injury) (Id. at pp. 7-8.) This was also prior to termination (Id.) Therefore, it can reasonably be concluded on the evidence presented by applicant that Venegas had knowledge of applicant's injury, which was sufficient knowledge on the part of the defendants to meet the requirement for actual notice or at least notice sufficient to cause the defendants to make an investigation.

Return to modified work/activity with restrictions including no squatting and no kneeling.

From the decision · page 2FACTUAL BACKGROUND Applicant claims he sustained a specific injury to his left knee and left leg while employed by the defendant as a brick layer on January 27, 20192. Applicant's primary treating physician is Jose de la Llana, M.D. A Request for Authorization form by Rachel Barros, PA-C dated April 12, 2019 states applicant's diagnosis is "knee strain, left, initial encounter" and requests authorization for physical therapy. (Applicant's Exhibit 6, Medical report of Dr. Barros, April 12, 2019, p. 1.) A report by Raymond Yen, M.D. dated May 9, 2019 states "Return to modified work/activity today. [...] No squatting. No kneeling..." (Applicant's Exhibit 8, Medical report of Dr. Yen, May 9, 2019, p. 1.) A report by Gerardo Cudich, LAC dated May 29, 2019 states "Chief Complaint: knee pain with work duties". (Applicant's Exhibit 1, Medical report of Dr. Cudich, May 29, 2019, p.

South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291

Applicant bears the burden of proving injury AOE/COE by a preponderance of the evidence.

Applied to the issue of injury causation.

From the decision · page 5Applicant bears the burden of proving injury AOE/COE by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3600(a); 3202.5.) It is sufficient to show that work was a contributing cause of the injury. (See Clark, supra, 61 Cal.4th at p. 298; McAllister

Peter Kiewit Sons v. Industrial Acc. Com. (1965) 234 Cal.App.2d 831

A finding of injury must be based on substantial medical evidence; lay testimony is insufficient.

Applied to the need for expert medical opinion on injury causation.

From the decision · page 5Although the factual issue of the occurrence of the alleged incident is a determination for the WCJ, the issue of injury is a medical determination, which requires expert medical opinion. As the Court of Appeal explained in Peter Kiewit Sons v. Industrial Acc. Com. (1965) 234 Cal.App.2d 831, 838-839 [30 Cal.Comp.Cases 188]: "Where an issue is exclusively a matter of scientific medical knowledge, expert evidence is essential to sustain a [WCAB] finding; lay testimony or opinion in support of such a finding does not measure up to the standard of substantial evidence. Expert testimony is necessary where the truth is occult and can be found only by resorting to the sciences."

Labor Code sections 5400, 5401, 5402, 3600(a)(10); Honeywell v. Workers' Comp. Appeals Bd. (Wagner) (2005) 35 Cal.4th 24

Notice to employer sufficient if employer had actual or constructive knowledge of injury before termination.

Applied to the issue of timely reporting of injury claim.

From the decision · page 8II. We further note one of the issues presented at trial was whether applicant timely reported the claim. A party must prove each issue in its case for which it bears the burden by a preponderance of the evidence; once a party has proven an element, the burden of proof shifts to the other party to produce evidence to rebut it. (Lab. Code § 3202.5). Under Labor Code section 3600(a)(10), a claim will be barred unless the applicant can demonstrate by a preponderance of the evidence that the employer had notice of the injury prior to notice of termination to the applicant. Labor Code section 3600(a)(10)(A) allows an applicant to prove notice prior to termination as defined by the provisions set forth in the Labor Code. Therefore, even if the applicant did not notify the employer under the procedure for notice set forth in section 5400, which requires that written notice of injury be given to the employer within thirty days of the injury, notice may be sufficient under section 5402(a) if the employer has knowledge of the injury.5 Under section 5402(a), this knowledge is defined as: (1) knowledge obtained by the employer6 from any source or (2) knowledge that was enough to "afford opportunity to the employer to make an investigation into the facts." (Lab.

Applicant's credibility was found lacking by the WCJ, but this did not negate the medical evidence and employer knowledge of the injury.

From the decision · page 5In the Opinion on Decision and the Report, the WCJ explained in detail why he found applicant not to be credible. A WCJ's opinions regarding witness credibility are entitled to great weight, (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 319 [35 Cal.Comp.Cases 500, 505]), and we do not question the WCJ's opinion as to applicant's credibility. However, when deciding a medical issue, such as whether an applicant sustained an injury, the WCJ must utilize expert medical opinion. (See Insurance Company of North America v. Workers' Comp. Appeals Bd. (Kemp) (1981) 122 Cal.App.3d 905 [46 Cal.Comp.Cases 913].) With respect to matters requiring medical knowledge, the WCJ cannot disregard a medical expert's conclusion when the conclusion is based on expertise in evaluating the significance of medical facts. (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006)145 Cal.App.4th 922 [71 Cal.Comp.Cases 1687].)

Employer had actual or constructive knowledge of the injury before termination, satisfying notice requirements.

From the decision · page 9Here, the testimony of defendant witness Venegas established that he first learned of the claimed injury in late February or early March 2019 from the superintendent Durant (December 12, 2019 MOH/SOE, pp. 5-6); this is evidence of actual or constructive notice which satisfies notice under section 5402. Venegas also admitted knowledge of applicant's knee complaint (though denies he knew whether it was an industrial injury) (Id. at pp. 7-8.) This was also prior to termination (Id.) Therefore, it can reasonably be concluded on the evidence presented by applicant that Venegas had knowledge of applicant's injury, which was sufficient knowledge on the part of the defendants to meet the requirement for actual notice or at least notice sufficient to cause the defendants to make an investigation.