ADJ8786469 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration filed by Defendant Travelers on behalf of the San Diego Chargers was denied by the WCAB panel, adopting and incorporating the WCJ report except as noted.

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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 traumaDefendant prevailedhead · neck · back · arms · shoulders · elbows · wrists · hands · fingers · legs · hips · knees · ankles · feet · toes · neuro · internal · sleep · chronic pain

The WCJ and WCAB found the applicant sustained a single cumulative trauma injury including exposure during the San Diego Chargers tryout, and liability falls on the San Diego Chargers as the last employer during the last year of injurious exposure under Section 5500.5. The statute of limitations was tolled under Section 5412 because the applicant lacked knowledge of his right to file until 2012, when he retained counsel and filed a claim in 2013, within the statutory period.

From the decision · page 61. the applicant, played professional football as a quarterback for the New York Jets from 8/1/1994 to 3/19/1999 and the Seattle Seahawks from 3/19/1999 to 8/28/2000. In 2002 he played in the Arena Football League for the New Jersey Gladiators, and on 9/24/2002, he attended a quarterback tryout for the San Diego Chargers.

The facts that decided it

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

Applicant first learned about right to file workers' compensation claim in 2012 from a colleague, then retained attorney and filed claim in 2013.

Favours Applicant prevailed

This tolled the statute of limitations under Labor Code Section 5412, making the claim timely.

From the decision · page 64. None of the applicant's employers, including the New York Jets, Seattle Seahawks, New Jersey Gladiators, or the San Diego Chargers, informed the applicant about a right to file for workers' compensation benefits for his injuries, and no doctor or trainer for the teams told him that he had a permanent disability. The applicant first learned about his right to file a workers' compensation claim in 2012 when he spoke with a colleague who advised the applicant to file a workers' compensation claim in California for his work injuries. (Trial Transcript 10/22/2019, pg. 65: 3 § 11)

Applicant sustained one cumulative trauma injury including exposure during San Diego Chargers tryout, as found credible by WCJ relying on Dr. Einbund's opinion.

Favours Applicant prevailed

This established the injury and its timing for liability purposes.

From the decision · page 2For the reasons discussed in the Report, we agree that the WCJ properly relied on the opinion of qualified medical examiner (QME) Michael Einbund, M.D., to find a single cumulative trauma injury. It is well-established that the relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525].)

Liability for cumulative trauma injury is limited to one year preceding date of injury or last date of employment exposing to hazard; applicant's last injurious exposure was with San Diego Chargers.

Favours Defendant prevailed

This allocated liability to the San Diego Chargers under Labor Code Section 5500.5.

From the decision · page 10Liability must be affixed applying Section 5500.5, which provides that liability for cumulative trauma injury claims shall be limited to one year immediately preceding either the date of injury, as determined according to Section 5412, or the last date on which the employee was employed in an occupation exposing him or her to the hazards of the cumulative injury, whichever occurs first. The applicant worked only for the San Diego Chargers during the last year of injurious exposure of the named defendants herein. The previous employers, the New York Jets and the Seattle Seahawks, fall outside of the last year of employment.

What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

QMERelied upon · orthopedic and neurological injuries

Applicant sustained one cumulative trauma injury including exposure during the San Diego Chargers tryout; tryout activities exacerbated neck and shoulder conditions; tryout constituted injurious exposure.

WCJ found Dr. Einbund's opinion more credible than Dr. Woods' contrary opinion regarding the tryout's injurious exposure and cumulative trauma.

From the decision · page 2For the reasons discussed in the Report, we agree that the WCJ properly relied on the opinion of qualified medical examiner (QME) Michael Einbund, M.D., to find a single cumulative trauma injury. It is well-established that the relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525].)

QMERejected

No extension of cumulative trauma injury to the San Diego Chargers tryout; level of play during tryout not in the same scope as regular play; no injury reported or treatment sought at tryout time.

Contrary opinion to Dr. Einbund, not credited by WCJ.

From the decision · page 9According to the applicant's QME, Dr. Michael Einbund, the applicant's injurious exposure with the San Diego Chargers was part and parcel of the cumulative trauma injury, and his overall impairment and disability related to working as a professional football player (Deposition of Michael J. Einbund, M.D, 5/26/2016, p.11 [Defense Exh. M]). On the other hand, the defendant's QME, Dr. Woods, states there was no extension of the cumulative trauma to work with the San Diego Chargers because the level of play during the workout was not in the same "scope" as when he was actively playing football with teams in regular practice and game times. As a result, he did not report an injury at the time, and he did not seek immediate treatment for his neck (Richard Woods, M.D., 12/8/2017, Discussion/Comments, pg. 28 [Defense Exh. U]).

The rules the panel named

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

California Labor Code Section 5412

Date of injury for cumulative injuries is when employee first suffered disability and knew or should have known it was caused by employment (Labor Code Section 5412).

Applied to determine the date of injury as February 27, 2013, when applicant retained attorney and filed claim.

From the decision · page 7"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."

California Labor Code Section 5500.5

Liability for cumulative trauma injury claims limited to one year preceding date of injury or last date of employment exposing to hazard (Labor Code Section 5500.5).

Applied to allocate liability to San Diego Chargers as last employer during last year of injurious exposure.

From the decision · page 10Liability must be affixed applying Section 5500.5, which provides that liability for cumulative trauma injury claims shall be limited to one year immediately preceding either the date of injury, as determined according to Section 5412, or the last date on which the employee was employed in an occupation exposing him or her to the hazards of the cumulative injury, whichever occurs first. The applicant worked only for the San Diego Chargers during the last year of injurious exposure of the named defendants herein. The previous employers, the New York Jets and the Seattle Seahawks, fall outside of the last year of employment.

Applied to reject waiver defense by San Diego Chargers.

Reynolds v. Workers' Comp. Appeals Bd. (1974) 12 Cal.3d 726

Statute of limitations purpose is to protect injured employees ignorant of procedures or existence of law (Reynolds v. WCAB 1974).

Applied to toll statute of limitations due to applicant's ignorance of right to file claim until 2012.

From the decision · page 1We do not adopt or incorporate the report to the extent that it relies on the holding in Reynolds v. Workers' Comp. Appeals Bd. (1974) 12 Cal.3d 726 [39 Cal.Comp.Cases 768] which we do not find relevant given the WCJ's finding that the Labor Code1 section 5412 date of injury was on February 27, 2013, the same date applicant retained an attorney and filed an Application for Adjudication of Claim. In addition, we do not adopt or incorporate the statement that "An injured worker is not charged with knowledge that his or her disability is job-related without medical advice to that effect." While medical advice is perhaps a common source of knowledge regarding industrial causation, in certain situations such as this case, the injured worker gains the requisite knowledge from an attorney after having spoken to a colleague.

California Labor Code Section 3202

Workers' compensation statutes are liberally construed to extend benefits to injured employees (Labor Code Section 3202).

Applied to interpret statute of limitations liberally in favor of applicant.

From the decision · page 9Section 3202 provides, "This division and Division 5 (commencing with Section 6300) shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment." Liberal construction applies to the statute of limitations. Using Sections 3202 and 5412, and based upon the date of knowledge and filing date, the statute of limitations does not bar the claim because the applicant applied within one year from the date of injury under Section 5412.

New York Knickerbockers v. WCAB (Macklin) (2015) 240 Cal.App.4th 1229

Liability can be allocated to different employer during injurious exposure without violating due process (New York Knickerbockers v. WCAB 2015).

Applied to allocate liability to San Diego Chargers for last year of injurious exposure.

From the decision · page 10Based on the hiring in California, liability can be allocated to a different employer during the period of injurious exposure without violating due process (New York Knickerbockers v. WCAB (Macklin) (2015) 240 Cal.App.4th 1229 [80 Cal.Comp.Cases 1141]). Therefore, the last date of injurious exposure in California extends to the date of the tryout with the San Diego Chargers. Thus, the liability for the applicant's cumulative trauma claim must fall on the San Diego Chargers.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's testimony was consistent with medical evidence and prior depositions; cognitive problems did not impede legal determinations.

From the decision · page 7The WCJ agrees with Petitioner that the overwhelming medical evidence and applicant's testimony establishes that the applicant has significant orthopedic, cognitive, and psychological disability related to work-related injuries sustained throughout his professional football career. However, the applicant's challenges do not affect the WCJ's determination that the applicant provided truthful and accurate testimony to the best of his ability. For the salient issues raised on appeal, the applicant's testimony was consistent with the information he provided to the examining physicians and prior depositions. Moreover, the applicant's cognitive problems did not impede the WCJ's determination of the questions of law raised by the Petitioner.

Testimony and credibilityfavours Applicant prevailed

Head trainer testified about waiver forms but did not know if applicant signed one; waiver does not bar liability for workers' compensation benefits.

Medical recordsfavours Applicant prevailed

Applicant lacked knowledge of right to file workers' compensation claim until 2012 when advised by colleague; no employer or medical staff informed him of rights or permanent disability.

From the decision · page 64. None of the applicant's employers, including the New York Jets, Seattle Seahawks, New Jersey Gladiators, or the San Diego Chargers, informed the applicant about a right to file for workers' compensation benefits for his injuries, and no doctor or trainer for the teams told him that he had a permanent disability. The applicant first learned about his right to file a workers' compensation claim in 2012 when he spoke with a colleague who advised the applicant to file a workers' compensation claim in California for his work injuries. (Trial Transcript 10/22/2019, pg. 65: 3 § 11)

ADJ8786469 · July 23, 2021