ADJ14380906 · September 15, 2023

The WCJ found substantial evidence that applicant sustained injury AOE/COE to his right shoulder and that the date of injury was October 15, 2020, which is after the termination notice date, thus the claim is not barred by the post-termination defense.

From the decision · page 1Defendant seeks reconsideration of the Findings of Fact (Findings) issued by the workers' compensation administrative law judge (WCJ) on June 30, 2023, wherein the WCJ found in pertinent part that applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to his right shoulder, that the Labor Code section 5412 date of injury is October 15, 2020, that applicant was notified of the October 12, 2020 termination of his employment with defendant on October 8, 2020; and that applicant's injury claim is not barred by the Labor Code section 3600(a)(10)(D) post-termination defense.1

Applicant's date of injury was October 15, 2020, after the October 8, 2020 notice of termination and October 12, 2020 termination date.

Favours Applicant prevailed

This established an exception to the post-termination defense, allowing the claim to proceed.

From the decision · page 4Dr. Anderson did certify to EDD that the applicant's disability due to his right shoulder began October 15, 2020. I therefore find the EDD certification, in conjunction with Dr. Anderson having examined the applicant on October 15, 2020 to be substantial evidence that the first date of disability was October 15, 2020. This is also supported by the Lam Research "Attending Physician Statement" completed by Dr. Anderson that has October 15, 2020 as the start date of disability..... The first date the applicant had both knowledge and disability for purposes of Labor Code section 5412 is therefore shown by a preponderance of the evidence to be October 15, 2020. Accordingly I find the date of injury for the applicant's right shoulder cumulative trauma injury is October 15, 2020. (Opinion on Decision, p. 13.) Based on our review of the trial record, we agree with the WCJ that the record contains substantial evidence that applicant sustained an injury AOE/COE to his right shoulder and that October 15, 2020, is the proper section 5412 date of injury. Thus, we also agree with the WCJ that applicant's injury claim is not barred by the section 3600(a)(10) post-termination defense. Accordingly, we deny reconsideration.

Dr. Anderson certified to EDD that applicant's disability began October 15, 2020, supported by medical records and attending physician statement.

Favours Applicant prevailed

This was substantial evidence of the first date of compensable disability under Labor Code section 5412.

From the decision · page 4Dr. Anderson did certify to EDD that the applicant's disability due to his right shoulder began October 15, 2020. I therefore find the EDD certification, in conjunction with Dr. Anderson having examined the applicant on October 15, 2020 to be substantial evidence that the first date of disability was October 15, 2020. This is also supported by the Lam Research "Attending Physician Statement" completed by Dr. Anderson that has October 15, 2020 as the start date of disability..... The first date the applicant had both knowledge and disability for purposes of Labor Code section 5412 is therefore shown by a preponderance of the evidence to be October 15, 2020. Accordingly I find the date of injury for the applicant's right shoulder cumulative trauma injury is October 15, 2020. (Opinion on Decision, p. 13.) Based on our review of the trial record, we agree with the WCJ that the record contains substantial evidence that applicant sustained an injury AOE/COE to his right shoulder and that October 15, 2020, is the proper section 5412 date of injury. Thus, we also agree with the WCJ that applicant's injury claim is not barred by the section 3600(a)(10) post-termination defense. Accordingly, we deny reconsideration.

Applicant did not receive medical treatment for shoulder pain until October 15, 2020, despite earlier complaints.

Favours Applicant prevailed

This supported the finding that compensable disability did not exist before October 15, 2020.

From the decision · page 11He did not receive medical treatment for his shoulder pain until his first appointment with Dr. Anderson on October 15, 2020. (MOH/SOE, supra. at page 5, lines 44-45, and page 6, lines 24- 25.) He made that appointment to see Dr. Anderson before he was terminated. (Id. at page 6, line 45.) He did not discuss getting an MRI with Dr. Anderson before he was terminated. (Id. at page 7, lines 2-3.) Although Dr. Sims had been his personal doctor for 10 years, he did not talk to Dr. Sims about his shoulder complaints. (Id. at page 7, lines 12-14.)

Diagnosed right shoulder joint arthritis, probable SLAP lesions, possible rotator cuff tear; found applicant not at maximum medical improvement initially; later found adhesive capsulitis, possible posterior labral tear, acromioclavicular joint arthritis, and maximum medical improvement absent treatment; opined injury worsened by usual job duties and included specific event in 2019 in cumulative trauma claim; denied compensable disability before October 15, 2020.

Dr. Fisher's reports were considered but did not establish compensable disability before October 15, 2020; his opinion supported cumulative trauma injury and causation by job duties.

From the decision · page 2BACKGROUND Applicant claimed injury to his right shoulder while employed by defendant as a process technician specialist during the period from October 1, 2019, through April 1, 2020. Applicant contacted the office of Jeffrey Anderson, M.D on October 7, 2020, regarding his right shoulder pain and an appointment was scheduled for October 15, 2020. (App. Exh. 4, p. 21.) On October 8, 2020, applicant received notice that his employment with defendant would be terminated as of October 12, 2020. (Def. Exh. C, p. 1.) He received medical treatment from Dr. Anderson starting on October 15, 2020 (the exhibits pertain to treatment applicant received through March 31, 2021; see Def. Exh. A, Jeffrey Anderson, M.D., pp. 11 § 35). On July 7, 2021, applicant was evaluated by orthopedic qualified medical examiner (QME) David E. Fisher, M.D. After examining applicant, taking a history, and reviewing a June 4, 2021 right shoulder MRI, Dr.

State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Rodarte) (2004) 119 Cal. App. 4th 998

Labor Code section 5412 requires compensable disability, either temporary or permanent, for date of injury determination.

The panel applied this standard to determine that October 15, 2020 was the first date of compensable disability.

From the decision · page 14Disability for the purposes of Labor Code section 5412 requires either compensable temporary disability or permanent disability. (State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Rodarte) (2004) 119 Cal. App. 4th 998, 1005-1006.) "Because actual wage loss is required for temporary disability, modified work alone is not a sufficient basis for compensable temporary disability. But, a modification may indicate a permanent impairment of earning capacity, especially if the worker is never able to return to the original job duties." (State Comp. Ins. Fund v. Workers' Comp. Appeals Bd., 119 Cal. App. 4th 998, 1005.)

Labor Code section 3600(a)(10)(D)

Labor Code section 3600(a)(10)(D) post-termination defense exception applies when date of injury is after notice of termination.

The panel found the exception applied because the date of injury was after the termination notice date.

From the decision · page 13"Except for psychiatric injuries governed by subdivision (e) of Section 3208.3, where the claim for compensation is filed after notice of termination or layoff, including voluntary layoff, and the claim is for an injury occurring prior to the time of notice of termination or layoff, no compensation shall be paid unless the employee demonstrates by a preponderance of the evidence that one or more of the following conditions apply: (A) The employer has notice of the injury, as provided under Chapter 2 (commencing with Section 5400), prior to the notice of termination or layoff. (B) The employee's medical records, existing prior to the notice of termination or layoff, contain evidence of the injury. (C) The date of injury, as specified in Section 5411, is subsequent to the date of the notice of termination or layoff, but prior to the effective date of the termination or layoff. (D) The date of injury, as specified in Section 5412, is subsequent to the date of the notice of termination or layoff."

Dr. Anderson certified to EDD that applicant's disability due to right shoulder began October 15, 2020, supported by Lam Research Attending Physician Statement listing same date.

From the decision · page 4Dr. Anderson did certify to EDD that the applicant's disability due to his right shoulder began October 15, 2020. I therefore find the EDD certification, in conjunction with Dr. Anderson having examined the applicant on October 15, 2020 to be substantial evidence that the first date of disability was October 15, 2020. This is also supported by the Lam Research "Attending Physician Statement" completed by Dr. Anderson that has October 15, 2020 as the start date of disability..... The first date the applicant had both knowledge and disability for purposes of Labor Code section 5412 is therefore shown by a preponderance of the evidence to be October 15, 2020. Accordingly I find the date of injury for the applicant's right shoulder cumulative trauma injury is October 15, 2020. (Opinion on Decision, p. 13.) Based on our review of the trial record, we agree with the WCJ that the record contains substantial evidence that applicant sustained an injury AOE/COE to his right shoulder and that October 15, 2020, is the proper section 5412 date of injury. Thus, we also agree with the WCJ that applicant's injury claim is not barred by the section 3600(a)(10) post-termination defense. Accordingly, we deny reconsideration.

Applicant did not receive medical treatment for shoulder pain until October 15, 2020, despite earlier pain complaints.

From the decision · page 11He did not receive medical treatment for his shoulder pain until his first appointment with Dr. Anderson on October 15, 2020. (MOH/SOE, supra. at page 5, lines 44-45, and page 6, lines 24- 25.) He made that appointment to see Dr. Anderson before he was terminated. (Id. at page 6, line 45.) He did not discuss getting an MRI with Dr. Anderson before he was terminated. (Id. at page 7, lines 2-3.) Although Dr. Sims had been his personal doctor for 10 years, he did not talk to Dr. Sims about his shoulder complaints. (Id. at page 7, lines 12-14.)