ADJ18451814 — California WCAB decision

ADJ18451814 · January 3, 2025

The WCAB granted defendant's petition for reconsideration, rescinded the WCJ's October 4, 2024 decision, and substituted new findings that the application ADJ18451814 was not duplicative of ADJ12117806, the presumption of compensability under Labor Code section 5402(b) does not apply, Dr. Jeffrey Nerenberg was validly obtained as QME, and discovery has not closed in ADJ18451814.

Issues decided

Medical opinions weighed

Authorities named

District office

Lodi

What the panel ordered

Defendant Pacific Steel Group sought reconsideration of the WCJ's October 4, 2024 Amended Findings of Fact, Awards, and Orders regarding duplicative filing and presumption of compensability under Labor Code section 5402(b). The WCJ had found the application ADJ18451814 was not duplicative of ADJ12117806, denied the presumption of compensability, and validated the QME selection of Dr. Jeffrey Nerenberg. The WCJ ordered a Mandatory Settlement Conference. The WCAB granted reconsideration, rescinded the WCJ's decision, and substituted new findings.

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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.

Jurisdiction / venueApplicant prevailed

The WCJ found the applications were not duplicative due to different employers, carriers, body parts, and injury periods, and the WCAB upheld this discretionary decision.

From the decision · page 7Here, the WCJ notes correctly that each application lists a different employer and carrier, that there is not complete overlap in the body parts, and that the periods alleged as injurious differ. (Report, at p. 3.) On this basis and given the pending medical-legal discovery in this matter, the WCJ has determined that applicant's pleadings in the alternative are permissible and merit a QME evaluation with respect to injury AOE/COE which remains denied at this time. Exercising the discretion afforded him under WCAB Rule 10455, the WCJ has declined to dismiss the application in ADJ18451814 and has further determined that QME Dr. Nerenberg was validly obtained. (Findings of Fact No. 1 & 3.) Following our independent review of the record occasioned by defendant's petition, we decline to disturb the WCJ's analysis and conclusions.

The facts that decided it

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

Each application lists a different employer and carrier, different body parts, and different injury periods.

Favours Applicant prevailed

This supported the WCJ's discretionary decision not to dismiss the application as duplicative.

From the decision · page 7Here, the WCJ notes correctly that each application lists a different employer and carrier, that there is not complete overlap in the body parts, and that the periods alleged as injurious differ. (Report, at p. 3.) On this basis and given the pending medical-legal discovery in this matter, the WCJ has determined that applicant's pleadings in the alternative are permissible and merit a QME evaluation with respect to injury AOE/COE which remains denied at this time. Exercising the discretion afforded him under WCAB Rule 10455, the WCJ has declined to dismiss the application in ADJ18451814 and has further determined that QME Dr. Nerenberg was validly obtained. (Findings of Fact No. 1 & 3.) Following our independent review of the record occasioned by defendant's petition, we decline to disturb the WCJ's analysis and conclusions.

Applicant did not file a claim form as required by Labor Code sections 5401(c) and (d).

Favours Defendant prevailed

Without a filed claim form, the presumption of compensability under section 5402(b) does not apply.

From the decision · page 8In this matter, we agree with the WCJ that the presumption of compensability afforded under section 5402 does not apply. In order for an alleged industrial injury to be presumed compensable pursuant to section 5402(b), the applicant must show when defendant received the DWC-1 claim form. Here, there is no evidence applicant ever filed a claim form with the employer, as required by sections 5401(c) and (d). In order to trigger the section 5402(b) presumption of compensability, use of the claim form is mandatory, and the filing of an application is not sufficient to trigger the presumption. As applicant has not demonstrated when the employer received the claim form, the presumption of compensability under section 5402(b) is not applicable. We note, however, that even without the presumption of compensability, applicant is still "free to prove in the ordinary manner his injury's industrial causation." (Wagner, supra, at p. 104.)

The rules the panel named

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

Cal. Code Regs., tit. 8, 10455(a)

WCAB Rule 10455(a)

Rule provides for dismissal of duplicative applications but dismissal is discretionary.

From the decision · page 6Defendant contends that applicant's filing in ADJ18451814 is duplicative of his filing in ADJ2117806 and must be dismissed pursuant to WCAB Rule 10455(a), which provides, in relevant part:

Labor Code section 5402(b)

Presumption of compensability applies if employer does not deny liability within 90 days of claim form filing; applicant did not file claim form here.

From the decision · page 8In this matter, we agree with the WCJ that the presumption of compensability afforded under section 5402 does not apply. In order for an alleged industrial injury to be presumed compensable pursuant to section 5402(b), the applicant must show when defendant received the DWC-1 claim form. Here, there is no evidence applicant ever filed a claim form with the employer, as required by sections 5401(c) and (d). In order to trigger the section 5402(b) presumption of compensability, use of the claim form is mandatory, and the filing of an application is not sufficient to trigger the presumption. As applicant has not demonstrated when the employer received the claim form, the presumption of compensability under section 5402(b) is not applicable. We note, however, that even without the presumption of compensability, applicant is still "free to prove in the ordinary manner his injury's industrial causation." (Wagner, supra, at p. 104.)

Honeywell v. Workers' Comp. Appeals Bd. (Wagner) (2005) 35 Cal. 4th 24

The 90-day period to accept or deny liability runs from the date the injured worker files their claim form, not from employer's notice.

From the decision · page 8In this matter, we agree with the WCJ that the presumption of compensability afforded under section 5402 does not apply. In order for an alleged industrial injury to be presumed compensable pursuant to section 5402(b), the applicant must show when defendant received the DWC-1 claim form. Here, there is no evidence applicant ever filed a claim form with the employer, as required by sections 5401(c) and (d). In order to trigger the section 5402(b) presumption of compensability, use of the claim form is mandatory, and the filing of an application is not sufficient to trigger the presumption. As applicant has not demonstrated when the employer received the claim form, the presumption of compensability under section 5402(b) is not applicable. We note, however, that even without the presumption of compensability, applicant is still "free to prove in the ordinary manner his injury's industrial causation." (Wagner, supra, at p. 104.)

ADJ18451814 · January 3, 2025

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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