ADJ12562949 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; July 14, 2021 Findings of Fact rescinded; matter returned to trial level for further proceedings and new decision.

Defendant sought reconsideration of the July 14, 2021 Findings of Fact by the WCJ, which found applicant sustained injury arising out of employment; the WCJ recommended denial of the petition; the WCAB granted reconsideration, rescinded the Findings, and returned the matter for further proceedings and a new decision.

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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.

Cumulative traumaRemandedcervical spine · bilateral shoulders · wrists · hands · lumbar spine

The WCAB found that the record lacked substantial medical evidence on causation and that a medical evaluation under Labor Code sections 4060 and 4062.2 was necessary before a proper finding could be made.

From the decision · page 1Defendant seeks reconsideration of the July 14, 2021 Findings of Fact wherein the workers' compensation administrative law judge (WCJ) found that applicant, while employed as a Certified Nursing Assistant at Encino Hospital Medical Center, sustained injury arising out of and in the course of employment to her cervical spine, bilateral shoulders, wrists, hands, and lumbar spine.

The rules the panel named

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

Labor Code section 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627

A finding of cumulative injury must be supported by substantial evidence in light of the entire record.

The WCAB emphasized the need for substantial evidence to support a cumulative injury finding.

From the decision · page 1As with any decision by a WCJ, a decision whether applicant sustained a cumulative injury must be supported by substantial evidence in light of the entire record. (Lab. Code, § 5952(d); See Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35

Labor Code section 3208.11

A cumulative industrial injury occurs when repetitive physically traumatic activities cause disability or need for medical treatment.

The WCAB cited this statute to define cumulative industrial injury and the need for medical proof on causation.

From the decision · page 2Labor Code section 3208.11 provides that a cumulative industrial injury occurs whenever the repetitive physically traumatic activities of an employee's occupation cause any disability or a need for medical treatment. The question of whether repetitive traumatic activities caused injury can only be answered with substantial medical evidence. It has long been recognized that medical proof is required when issues of diagnosis, prognosis, and treatment are beyond the bounds of ordinary knowledge. (City & County of San Francisco v. Industrial Acc. Com. (Murdock) (1953) 117 Cal.App.2d 455 [18 Cal.Comp.Cases 103]; Bstandig v. Workers' Comp. Appeals Bd. (1977) 68 Cal.App.3d 988 [42 Cal.Comp.Cases 114].)

Labor Code section 4060(c)

Medical evaluations to determine compensability after claim filing must follow the procedure in Labor Code section 4062.2 if the employee is represented by an attorney.

The WCAB noted the requirement for medical evaluations under section 4062.2 when the employee has attorney representation.

From the decision · page 2Labor Code section 4060(c) states, "[i]f a medical evaluation is required to determine compensability at any time after the filing of the claim form, and the employee is represented by an attorney, a medical evaluation to determine compensability shall be obtained only by the procedure provided in Section 4062.2." Section 4060(c) clearly provides that "the section 4062.2 procedure for medical evaluations on compensability may be undertaken 'at any time' after a claim form has been filed." (Mendoza v. Huntington Hospital (2010) 75 Cal.Comp.Cases 634, 642 (Appeals Bd. en banc).)

ADJ12562949 · September 27, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

The rules the panel named

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