California WCABPanel decision

ADJ11905041 · December 30, 2021

Petition for Reconsideration granted in part and denied in part; new Findings of Fact substituted; injury AOE/COE to low back found; no injury to legs; statute of limitations defense rejected; no attorney fees awarded at this time

Issues decided: 2
Medical opinions weighed: 3
Authorities named: 1
District office: Marina del Rey

What the panel ordered

Petition for Reconsideration granted in part, Findings of Fact and Award rescinded and substituted with new Findings of Fact

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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.

AOE/COEDefendant prevailedlegs

Applicant did not meet burden of proof for injury to legs; no separate and distinct injury found.

From the decision · page 9Based on the entire record Applicant has not met her burden of proving that she sustained a separate and distinct injury arising out of and in the course of her employment to her legs. ATTORNEY FEES

AOE/COEApplicant prevailedlow back

Applicant's credible and unrebutted testimony and corroborating evidence established injury AOE/COE to low back on 11/25/2018.

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The facts that decided it

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

Applicant reported the injury to her employer in January 2019 after symptoms worsened and she sought medical care.

Favours Applicant prevailed

Timely reporting after symptoms appeared supported the claim and rebutted statute of limitations defense.

Applicant credibly testified she felt a pull in her back on 11/25/2018 while lifting a patient but did not report it immediately because she had no pain at the time.

Favours Applicant prevailed

This credible testimony explained the delayed reporting and supported injury AOE/COE finding.

From the decision · page 8Based on the credible and unrebutted testimony of the Applicant, the testimony of Laura Richardson, the Panel QME reports and deposition of Dr. Isaac Schmidt and the entire record, Applicant has met her burden of proving that she sustained injury arising out of and in the course of employment to her low back on 11/25/2018. Applicant testified that on 11/25/2018 while she was assisting a CNA in lifting a patient she felt a pull in her back but she did not report the injury on that date because she was not in pain. The next day she noticed soreness but did not report the injury because she thought it would resolve on its own. The Applicant continued to work her usual and customary duties as a registered nurse with the same level of soreness until the end of December when she noticed the pain had increased and began radiating down one leg. At that time she decided to make an appointment with a primary care physician in January 2019 when her insurance "kicked in".

Defendant failed to prove any actual prejudice from Applicant's delayed injury reporting.

Favours Applicant prevailed

Lack of proven prejudice led to rejection of statute of limitations defense.

From the decision · page 2Cal.App.4th 787, 790 - 791 [62 Cal. Comp. Cases 1646], quoting Pacific Employers Ins. Co. v. Industrial Accident Commission (1949) 92 Cal.App.2d 124, 126 [206 P.2d 372, 14 Cal. Comp. Cases 82].) The prejudice alleged by defendant, i.e., that the hospital was impeded from conducting an investigation and was unable to ensure the safety of approximately 67 patients under applicant's care during the 53 days following the injury, is only an allegation of possible potential prejudice with no description of any specific actual prejudice that resulted. Moreover, even if true, the alleged prejudice does not relate to "the proceedings for the collection of the claim" as required by section 5403. Defendant failed to establish that it was in fact misled or prejudiced in these proceedings due to her failure to report the injury.

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

Found Applicant credible and deferred causation to trier of fact.

Dr. Schmidt found Applicant credible and deferred causation to the trier of fact, supporting injury AOE/COE finding.

From the decision · page 7The next issue raised is that at the conclusion of his deposition, the Panel QME Dr. Schmidt deferred the issue of causation of injury to the trier of fact. However, Dr. Schmidt also testified that he found the Applicant credible. The WCJ had the unique opportunity to evaluate the Applicant's testimony via Lifesize over the course of three trial settings. The WCJ also found the Applicant to be a credible witness. Applicant successfully met her burden of proof that she sustained industrial injury to her low back based on the entire record.

PTPPartially credited

Noted Applicant's report of back pain possibly from work or housework, but causation uncertain.

Report noted uncertainty about causation but Applicant denied housework injury; testimony credited Applicant's version.

From the decision · page 6The sixth point raised is that the first workers compensation physician that Applicant saw, Dr. Kohan, acknowledges that Applicant told him that she felt lower back pain that may have occurred at work 54 days ago when she was lifting a patient. He then noted the length of time and then he states "However, it may have occurred at home with doing house-work as well, not completely sure." (See Exhibit A) It is not clear from the report exactly who is not completely sure, Dr. Kohan or the Applicant. However, Applicant testified she

PTPNot substantial evidence

Did not document a lifting injury; assessment of low back pain without causation discussion.

Lack of causation documentation by primary care physician not dispositive against industrial injury finding.

From the decision · page 6The fifth point is that the fact that her primary care physician through her private insurance, Dr. Quasi, fails to document a lifting injury. A careful review of the sixteen pages introduced as Exhibit C reveals no section that addresses causation of injury. Dr. Quasi does discuss his assessment for applicant's low back pain and some other medical issues. The mere fact that primary care physician outside workers compensation fails to address a mechanism of injury is not dispositive of whether an industrial injury occurred without additional evidence or testimony.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's credible and unrebutted testimony explaining delayed reporting and lack of pain at time of injury

From the decision · page 6Defendants' third point is that there were no witnesses to the incident of 11/25/2018 despite the fact that the incident took place in the presence of coworkers. The Applicant's credible and unrebutted description of the mechanism of injury and her lack of symptoms at the time provided a rational explanation as to why there were no witnesses. The Applicant testified that on 11/25/2018 when she was helping a CNA lift a patient higher in the bed that on the second lift her coworker, a CNA, dropped her side before the Applicant and Applicant felt a pull in her back but no pain. (See Minutes of Hearing and Summary of Evidence dated 1/27/2021 page 3 lines 23 to 25 and page 4 lines 1 to 2) The Applicant testified that the reason that she did not report the injury was because she was not feeling pain at that time.

Other evidencefavours Applicant prevailed

Defendant failed to establish actual prejudice from delayed injury reporting

From the decision · page 2Cal.App.4th 787, 790 - 791 [62 Cal. Comp. Cases 1646], quoting Pacific Employers Ins. Co. v. Industrial Accident Commission (1949) 92 Cal.App.2d 124, 126 [206 P.2d 372, 14 Cal. Comp. Cases 82].) The prejudice alleged by defendant, i.e., that the hospital was impeded from conducting an investigation and was unable to ensure the safety of approximately 67 patients under applicant's care during the 53 days following the injury, is only an allegation of possible potential prejudice with no description of any specific actual prejudice that resulted. Moreover, even if true, the alleged prejudice does not relate to "the proceedings for the collection of the claim" as required by section 5403. Defendant failed to establish that it was in fact misled or prejudiced in these proceedings due to her failure to report the injury.

ADJ11905041 · December 30, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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