Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5412
Date of injury for occupational diseases or cumulative injuries is when employee first suffered disability and knew or should have known it was caused by employment (Lab. Code, § 5412).
Applied to amend date of injury to July 15, 2021, and to assess knowledge of industrial cause.
From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of
the Report of the workers' compensation administrative law judge (WCJ) with respect thereto.
Based on our review of the record, and for the reasons stated in the WCJ's Report, which we adopt
and incorporate, except as noted below, and for the reasons stated below, we will grant
reconsideration for the sole purpose of amending the November 30, 2023 Findings of Fact, Order
& Award to make a finding of the Labor Code1 section 5412 date of injury. We otherwise affirm
the WCJ's decision.
City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal.App.3d 467
Employer has burden to prove employee knew or should have known disability was industrially caused; employee not charged without medical advice (Johnson, supra).
Applied to assess knowledge and burden of proof on employer.
From the decision · page 2The employer has the burden of proving that the employee knew or should have known
their disability was industrially caused. (Johnson, supra, at p. 471, citing Chambers v. Workers'
Comp. Appeals Bd., supra, 69 Cal. 2d at p. 559.) That burden is not sustained merely by a showing
that the employee knew they had some symptoms. (Johnson, supra, at p. 471, citing Chambers,
supra, at p. 559.) In general, an employee is not charged with knowledge that their disability is
job-related without medical advice to that effect. (Johnson, supra, at p. 473; Newton v. Workers'
Comp. Appeals Bd. (1993) 17 Cal.App.4th 147, 156, fn. 16 [58 Cal.Comp.Cases 395].)
Labor Code sections 5952 and 5953
Award must be supported by substantial evidence; findings on fact conclusive if supported by entire record (LC 5952, 5953).
Applied to uphold WCJ findings based on entire record and substantial evidence.
From the decision · page 6B.
There Exists Substantial Evidence of Industrial Injury
It has been well established under California workers' compensation law that an award for
benefits must be supported by substantial evidence. (LeVesque v. WCAB (1970) 35 CCC 16). Labor
Code section 5952(d) requires an award of the appeals board to be "supported by substantial
evidence." Furthermore, Labor Code section 5953 provides in part: "The findings and conclusions
of the appeals board on questions of fact are conclusive and final and are not subject to review.
Such questions of fact shall include ultimate facts and the findings and conclusions of the appeals
board." Together, LC 5952 and LC 5953 have been interpreted as establishing that "[t]he findings
and conclusions of the appeals board on questions of fact are conclusive and final" as long as,
"based upon the entire record," they are "supported by substantial evidence." (LeVesque at 25 fn.
19) So if the appeals board's findings are supported by inferences that may fairly be drawn from
evidence even though the evidence is susceptible to opposing inferences, the reviewing court will
not disturb the award. (Crown Appliance v.
Labor Code section 3600(a)(10)
Post-termination defense under LC 3600(a)(10) applies if claim filed after notice of termination and injury occurred before notice; employee can overcome by showing employer awareness or other conditions (LC 3600(a)(10)).
Applied to assess post-termination defense and employee rebuttal.
From the decision · page 8C.
The Injury Is Not Barred By Labor Code 3600(a)(10)
For injuries occurring on or after July 16, 1993, Labor Code section 3600(a)(10) provides
the employer with a "post-termination" defense to a claim of injury. The purpose of this defense
is to protect the employer from retaliatory and fraudulent claims made by employees who have
been terminated or laid off. Faulkner v. WCAB (2004) 69 CCC 1161 (writ denied). This statutory
defense eliminates liability for compensation for certain claims that are filed subsequent to a
termination, layoff or receipt of notice thereof.
The general rule is that an injury is not compensable if a claim "[is] filed after notice of
termination or layoff, including voluntary layoff, and... the claim is for an injury occurring prior
to the time of notice of termination or layoff." In order for Labor Code 3600(a)(10) to come into
play, the employer must establish: (1) that the claim for compensation was filed after the notice of
termination or layoff; and (2) that the claim is for an injury occurring before the time of notice of
termination or layoff. Hart v. WCAB (2002) 67 CCC 961 (writ denied). The Employer has met
their burden here. However, that does not end the inquiry.
Once the employer has established these elements, the burden shifts to the employee to
prove that the post-termination defense does not apply. Chico v.