ADJ10834249 · May 9, 2022

The WCJ found that the date of injury for cumulative trauma was September 12, 2017, based on the presence of permanent disability and applicant's knowledge of the disability caused by employment on that date, supported by Dr. Silverman's evaluation and reports.

From the decision · page 3This matter proceeded to trial on December 22, 2021. At trial the parties stipulated that the applicant age 62 on the alleged date of injury, while employed during the period April 12, 2016, through April 12, 2017, as a laborer, Occupational Group Number 360, at Tarzana, California, by Country Fresh Herbs, sustained injury arising out of and in the course of employment to his lumbar spine, neck, shoulders, knees, feet, and thoracic spine. The parties also stipulated that Applicant was employed by Country Fresh Herbs from 1995 to December 20, 2020 and that PQME Silverman found that the Applicant's entire period of employment was injurious. At the time of injury, the employer's workers' compensation carriers were Republic Underwriters for the period January 1, 2016, through December 31, 2016; Falls Lake Insurance Company for the period January 1, 2017, through December 31, 2017; and Preferred Professional Insurance Company for the period January 1, 2018, through December 20, 2020. The sole issue presented for determination was the date of injury pursuant to Labor Code § 5412 and Labor Code § 5500.5, with Republic Underwriters contending that the liability period pursuant to Labor Code § 5500.5 is after its last date of coverage.

Dr. Silverman's September 12, 2017 evaluation found bilateral end stage bone on bone knee arthritis with complete loss of joint space, a ratable condition under AMA Guides.

Favours Applicant prevailed

This established the presence of permanent disability as of September 12, 2017.

From the decision · page 6Dr. Silverman's findings as set forth in his September 12, 2017 report are unrebutted. There is no dispute that applicant had a "bone on bone" arthritic condition with complete loss of joint space in the medial compartments of both of his knees at the time of that evaluation. This condition is clearly ratable under the AMA Guides. Thus, applicant had permanent disability at that time.

Applicant told Dr. Silverman that his injuries were work-related and filed an Application for Adjudication of Claim alleging cumulative trauma injury before September 12, 2017.

Favours Applicant prevailed

Supports that applicant knew or should have known the disability was caused by employment on September 12, 2017.

From the decision · page 7Silverman's September 12, 2017 report (Defendant's Exhibit G) the doctor states that the applicant presents with respect to an injury "which the claimant states occurred on March 30, 2016 and a CT 4/12/16 to 4/12/17, while employed by the above-mentioned employer." Additionally applicant retained counsel and filed an Application for Adjudication of Claim dated April 19, 2017 which is in evidence as Applicant's Exhibit 2. The application alleges that applicant sustained a cumulative trauma injury to his neck, back, shoulders, lower extremities, knees, and feet due to his work. On this basis it was found that on September 12, 2017, when applicant was first found to have disability by Dr. Silverman, applicant knew or should have known that it was caused by his employment. Thus, based on this coalescence of disability and knowledge, applicant's Labor Code § 5412 date of injury was found to be September 12, 2017.

Provided whole person impairment ratings for multiple body parts including bilateral end stage bone on bone knee arthritis, lumbar spine, cervical spine, shoulders, and biceps tendon rupture, based on AMA Guides and Almaraz/Guzman principles.

Dr. Silverman's September 12, 2017 evaluation and November 13, 2017 supplemental report established the presence of permanent disability and impairment as of the date of injury.

From the decision · page 4lower extremities and multiple body parts. Applicant presented himself for an evaluation by Panel Qualified Medical Evaluator Mitchell Silverman M.D. on September 12, 2017 stating that he had sustained a March 30, 2016 specific injury and a cumulative trauma. Dr. Silverman performed a thorough orthopedic evaluation and reviewed voluminous medical reports including x-ray studies of applicant's bilateral knees. He provided a number of orthopedic diagnoses including, but not limited to, bilateral end stage bone on bone knee arthritis. He noted that the applicant continued to work with pain. On October 1, 2017 the parties sent a joint interrogatory to Dr. Silverman requesting "... a provisional rating in this matter to assist the parties in early settlement efforts." (Exhibit E, Medical Report of Mitchel Silverman M.D. dated November 13, 2017, page 1, paragraph 1). Dr. Silverman then issued a supplemental report dated November 13, 2017 in which he noted that:

Labor Code a7 5412

Labor Code a7 5412 defines the date of injury for a cumulative trauma as the date upon which the employee first suffered disability and knew or should have known the disability was caused by employment.

Applied to determine the date of injury as September 12, 2017 based on disability and knowledge.

From the decision · page 4Labor Code § 5412 defines the date of injury for a cumulative trauma as "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." Petitioner argues that

AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition; Almaraz/Guzman decisions

Permanent impairment ratings are calculated according to the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, and the principles established by the Almaraz/Guzman decisions.

Used by Dr. Silverman to assess whole person impairment and permanent disability.

From the decision · page 4"Permanent impairment ratings are calculated in accord with the criteria and methods of the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition, and the principles established by the Almaraz/Guzman decisions.

California Code of Regulations a7 9812 (e) (1)

California Code of Regulations a7 9812 (e) (1) contemplates that permanent disability can exist prior to permanent and stationary status.

Supports the finding that permanent disability existed as of September 12, 2017.

From the decision · page 5Although the extent of permanent disability is normally reported when permanent and stationary status is achieved, a physician is not precluded from reporting that permanent disability exists before the time when an injured worker has reached permanent and stationary status, or the extent of ratable permanent disability is known. (See Genlyte Group, L.L.C. v. WCAB (Zavala) (2008) 73 CCC 6). Additionally, this WCJ notes that California Code of Regulations § 9812 (e) (1) contemplates that permanent disability can exist prior to permanent and stationary status in that it requires a permanent disability notice to be sent to the injured worker under the following condition:

Applicant's statements to Dr. Silverman that his injuries were work-related and the filing of an Application for Adjudication of Claim alleging cumulative trauma injury.

From the decision · page 7Silverman's September 12, 2017 report (Defendant's Exhibit G) the doctor states that the applicant presents with respect to an injury "which the claimant states occurred on March 30, 2016 and a CT 4/12/16 to 4/12/17, while employed by the above-mentioned employer." Additionally applicant retained counsel and filed an Application for Adjudication of Claim dated April 19, 2017 which is in evidence as Applicant's Exhibit 2. The application alleges that applicant sustained a cumulative trauma injury to his neck, back, shoulders, lower extremities, knees, and feet due to his work. On this basis it was found that on September 12, 2017, when applicant was first found to have disability by Dr. Silverman, applicant knew or should have known that it was caused by his employment. Thus, based on this coalescence of disability and knowledge, applicant's Labor Code § 5412 date of injury was found to be September 12, 2017.