ADJ12963083 — California WCAB decision

What the panel ordered

Rescinded the Findings of Fact, Award, Order issued April 9, 2021 in ADJ12963083 and returned matter to trial level for further proceedings; affirmed dismissal of ADJ13167130 with prejudice

Petition for Reconsideration granted to study legal and factual issues; WCJ dismissed ADJ13167130 with prejudice; WCJ found claim barred by statute of limitations in ADJ12963083; WCJ ordered applicant take nothing on hearing loss claim; WCJ Report recommended denial of reconsideration; WCAB rescinded F&O and returned ADJ12963083 for further proceedings; affirmed dismissal of ADJ13167130

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.

Statute of limitationsRemandedhearing

The WCAB found that the WCJ's decision barring the claim based on statute of limitations was not supported by substantial evidence and rescinded it, returning the matter for further proceedings. The WCJ had found the claim barred because applicant knew or should have known of the injury earlier, but the WCAB found the date of injury to be the QME report date, making the claim timely.

From the decision · page 12Accordingly, given that the WCJ's decision in this case (ADJ12963083) to bar applicant's claim based on the statute of limitations is not based on admitted evidence or substantial evidence, it must be our decision after reconsideration to rescind the F&O and return this matter to the trial level for further development of the record consistent with this decision. We affirm the WCJ's decision to dismiss applicant's claim in ADJ13167130 pursuant to the parties' stipulation.

The facts that decided it

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

The initial QME evaluation report dated July 31, 2019 established the date of injury for the cumulative hearing loss claim.

Favours Applicant prevailed

This date was critical to determining the timeliness of the claim under the statute of limitations.

From the decision · page 3On July 31, 2019, QME Dr. Smith issued an Otolaryngologic Qualified Medical Evaluation finding that applicant suffers from a "[b]ilateral neurosensory loss of hearing and tinnitus" that is worse on the left than on the right, caused by "asymmetrical loud noise exposure, both recreationally and at work." (Joint Exh. BB, pp. 17-18.) Dr. Smith apportioned applicant's hearing loss 50% to recreational loud noise trauma from his shooting hobby and prior noise exposure and 50% to his work as a bus driver for San Mateo. (Id. at p. 19.) Dr. Smith was provided with

Applicant did not have medical advice or knowledge that his hearing loss was compensable until the QME report.

Favours Applicant prevailed

Applicant's lack of knowledge meant the statute of limitations did not start until the QME report date.

From the decision · page 8The WCJ's conclusion that applicant must have known he sustained a disability resulting from a job-related cumulative trauma injury because he and his wife knew that he had hearing related symptoms is not enough for defendant to meet its burden of proof. (See Johnson, supra, 163 Cal.App.3d at 471, citing to Chambers, supra, and Pacific Indem. Co. v. Industrial Acc. Comm. (1950) 34 Cal.2d 726.). In addition, applicant did not need miss any work as a result of his symptoms and did not retire from his job because of those symptoms. He therefore had no reason to believe that his symptoms resulted in any "disability" under the workers' compensation laws by something called "a cumulative trauma injury" until he was informed of those facts by the QME in this case on July 31, 2019. No employee is required to guess as to whether any particular symptom, illness, or injury is industrial or not, and "a layman's mistaken diagnosis...is not fatal to a claim for workers' compensation benefits [citation]..." (Nielsen, supra, 164 Cal.App.3d at p. 931.)

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's credible testimony that he did not know his hearing loss was compensable until the QME report

From the decision · page 8The WCJ's conclusion that applicant must have known he sustained a disability resulting from a job-related cumulative trauma injury because he and his wife knew that he had hearing related symptoms is not enough for defendant to meet its burden of proof. (See Johnson, supra, 163 Cal.App.3d at 471, citing to Chambers, supra, and Pacific Indem. Co. v. Industrial Acc. Comm. (1950) 34 Cal.2d 726.). In addition, applicant did not need miss any work as a result of his symptoms and did not retire from his job because of those symptoms. He therefore had no reason to believe that his symptoms resulted in any "disability" under the workers' compensation laws by something called "a cumulative trauma injury" until he was informed of those facts by the QME in this case on July 31, 2019. No employee is required to guess as to whether any particular symptom, illness, or injury is industrial or not, and "a layman's mistaken diagnosis...is not fatal to a claim for workers' compensation benefits [citation]..." (Nielsen, supra, 164 Cal.App.3d at p. 931.)

Medical recordsfavours Applicant prevailed

No evidence that Hearing Resource Center medical professionals rendered opinions on causation

From the decision · page 9Finally, we do not agree with the WCJ or the dissent that applicant's testimony that he "believes" he was told of an industrial connection by someone at the Hearing Resource Center is substantial evidence that he knew or should have known his disability was job-related under section 5412, especially because applicant did not identify who it "might" have been that told him, or whether it was a medical professional with the expertise to render an opinion about the relative causation of a cumulative trauma injury to his hearing given all the noise exposure found in this case. Moreover, there is nothing in the records from the Hearing Resource Center that can confirm that any medical professional rendered any opinion on causation whatsoever. We note defendant's questioning of applicant during trial regarding the June 18, 2014 visit to audiologist Rebecca Marulescu at the Hearing Resource Center. (MOH/SOE, February 11, 2021, p. 7; see Joint Exh. EE, Audiology Reports, p. 27.) Defendant asked applicant whether his wife questioned the audiologist or a doctor if his hearing loss was work-related, and applicant testified that he had no memory of that. (Ibid.) Applicant also testified that he was not asked at Kaiser if his hearing issues were work-related. (Ibid.)

ADJ12963083 · March 6, 2026

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