ADJ15912467 — California WCAB decision

What the panel ordered

Findings of Fact and Order dated March 27, 2023, rescinded; matter returned to WCJ for further proceedings and new decision

Petition for Reconsideration granted; prior Findings of Fact and Order rescinded; case returned to WCJ for further proceedings

Read the official decision →

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/COERemandedleft hip

The Appeals Board found the AME's medical opinion persuasive that the applicant's left hip condition was industrially caused by his work and that the prior settlement did not include a left hip injury claim. The Board found no evidence contradicting the AME's opinion and noted the cumulative injury definition under Labor Code section 3208.1 supports the claim.

From the decision · page 1Applicant seeks reconsideration of the Findings of Fact and Order (F&O) issued by the workers' compensation administrative law judge (WCJ) on March 27, 2023, wherein the WCJ found in pertinent part that applicant failed to meet his burden of proving he sustained a separate and new industrial injury to his left hip arising out of and in the course of his employment (AOE/COE) on January 11, 2022; that applicant's injury claim was barred by Labor Code section 5410; and that Labor Code section 5412 is not applicable.1 The WCJ ordered that applicant take nothing by way of his injury claim.

The facts that decided it

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

AME Dr. Heskiaoff's opinion that the applicant's work contributed to the left hip condition and that the bilateral hip problems should be accepted on an industrial basis

Favours Applicant prevailed

The Board found this opinion persuasive and uncontradicted, supporting the compensability of the left hip injury claim.

From the decision · page 4As noted above, AME Dr. Heskiaoff specifically stated: "Within reasonable medical probability, the type of work the patient has been performing has contributed to the condition of the left hip. There is industrial causation from the continuous trauma of work to the left hip within reasonable medical probability." (Joint Exh. 1, p. 12.) He subsequently stated: "After evaluating this patient, it was my opinion that based on my knowledge of the type of work the patient had been performing, his hip condition within reasonable medical probability was related to his work activity...." (Joint Exh. 2, p. 1.) An AME is presumably chosen by the parties because of his or her expertise and neutrality. Therefore, the AME's opinion should ordinarily be followed unless there is a good reason to find that opinion unpersuasive. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114, 117].) Having reviewed the trial record, we see no reason to find Dr. Heskiaoff's opinions unpersuasive; nor does the trial record contain any evidence contrary to or inconsistent with Dr. Heskiaoff's opinions.

The prior settlement did not include a claim for injury to the applicant's hips or left hip

Favours Applicant prevailed

This fact supports that the left hip injury claim is not barred by the prior settlement, allowing reconsideration of the claim.

From the decision · page 4Regarding defendant's argument that applicant's hip injury claim had previously been settled by the December 18, 2013, Stipulations with Request for Award, (Stipulations); having reviewed the Stipulations it is clear that none of the injury claims resolved by that settlement identified or otherwise included a claim of injury to applicant's hips/left hip (see Joint Exh. 4). As to whether applicant's left hip symptoms were a consequence of his prior knee injuries; again, there is no evidence contrary to Dr. Heskiaoff's conclusion that applicant's work, "... which is arduous, contributed to the condition of the left hip until the last day that he worked as a deputy sheriff." (Joint Exh. 2, p. 1.)

The rules the panel named

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

Labor Code section 3208.1

Definition of injury including cumulative injury under Labor Code section 3208.1

Supports the recognition of cumulative injury claims based on repetitive traumatic activities.

From the decision · page 3Section 3208.1 defines injury as follows: An injury may be either: (a) "specific," occurring as the result of one incident or exposure which causes disability or need for medical treatment; or (b) "cumulative," occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment. The date of a cumulative injury shall be the date determined under Section 5412. (Lab. Code § 3208.1.)

Labor Code section 5412

Date of injury for cumulative injuries under Labor Code section 5412

Defines the date of injury as when the employee first suffered disability and knew or should have known it was work-related.

From the decision · page 3Section 5412 states that: The date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment. (Lab. Code, § 5412.)

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

Causation requires employment to be a contributing cause without which the injury would not have occurred

Employment must be linked causally to the injury as a contributing cause.

From the decision · page 3The concept of "in the course of employment" ordinarily refers to the time, place, and circumstances under which the injury occurs. For an injury to "arise out of employment" it must occur by reason of a condition or incident of the employment. Otherwise stated, the employment and the injury must be linked in some causal fashion. All that is required is that the employment be one of the contributing causes without which the injury would not have occurred. (South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (2015) 61 Cal.4th 291, [80 Cal.Comp.Cases 489];

ADJ15912467 · September 28, 2023

What the panel ordered

What was disputed, and how it came out

Your case already resembles someone else’s. Find whose.

The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

About this page