ADJ15567442 · May 9, 2023

Substantial evidence supports finding of industrial injury to abdomen in the form of umbilical and inguinal hernia; other body parts deferred

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, we will grant reconsideration, and as our Decision After Reconsideration, we will affirm the Findings, Award and Order, except that we will amend to find that applicant sustained injury to the abdomen in the form of umbilical and inguinal hernia and to defer the issue of injury to any other body parts and to correct the award. Based on the medical record, including applicant's emergency room records and the reports of the qualified medical evaluators (QME), at this time substantial evidence only supports a finding that applicant sustained industrial injury to the abdomen in the form of umbilical and inguinal hernia. (Exhibit A, QME Report of Dr. Michael Fujinaka, M.D., dated May 4, 2022, p. 65; Exhibit C, QME Report of Rommel Hindocha, D.C., dated July 22, 2021, page 11; Exhibit I, Emergency Room visit San Mateo Medical (excerpted record) dated May 4, 2019, pp. 128 & 129.) Thus, we will grant reconsideration, amend Finding of Fact #1, Award #1, and the Amended Order.

Applicant entitled to medical treatment for industrial injury to abdomen in the form of hernia

Applicant was not terminated but forced to quit for unrelated medical reasons; post termination defense does not apply

From the decision · page 8That purpose is not met here, since applicant was not terminated from his job, but was forced to quit as he was unable to perform his usual and customary job duties for medical reasons completely unrelated to the industrial hernia injury he is claiming in the instant case.

Applicant filed claim within one year of knowledge of injury; statute of limitations defense not met by defendant

From the decision · page 7The DCA in Rodarte was very clear that medical treatment alone is not equivalent to either temporary or permanent disability. Defense has not presented any evidence in this case to establish that applicant's hernia injury resulted in entitlement to either temporary disability or permanent disability on their claimed date of injury of 4/30/2019. Therefore, the first prong of Labor Code § 5412 has not been met to establish that there was a date of injury of 4/30/2019 per Labor Code § 5412 in this case. Therefore, defendant has not met their burden of proof on this issue.

Applicant sustained industrial cumulative trauma injury to abdomen in the form of umbilical and inguinal hernia

Favours Applicant prevailed

Supported by medical records and QME reports, leading to granting of petition for reconsideration and amendment of findings

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, we will grant reconsideration, and as our Decision After Reconsideration, we will affirm the Findings, Award and Order, except that we will amend to find that applicant sustained injury to the abdomen in the form of umbilical and inguinal hernia and to defer the issue of injury to any other body parts and to correct the award. Based on the medical record, including applicant's emergency room records and the reports of the qualified medical evaluators (QME), at this time substantial evidence only supports a finding that applicant sustained industrial injury to the abdomen in the form of umbilical and inguinal hernia. (Exhibit A, QME Report of Dr. Michael Fujinaka, M.D., dated May 4, 2022, p. 65; Exhibit C, QME Report of Rommel Hindocha, D.C., dated July 22, 2021, page 11; Exhibit I, Emergency Room visit San Mateo Medical (excerpted record) dated May 4, 2019, pp. 128 & 129.) Thus, we will grant reconsideration, amend Finding of Fact #1, Award #1, and the Amended Order.

Applicant filed claim within one year of knowledge of injury

Favours Applicant prevailed

Defendant failed to prove statute of limitations defense

From the decision · page 7The DCA in Rodarte was very clear that medical treatment alone is not equivalent to either temporary or permanent disability. Defense has not presented any evidence in this case to establish that applicant's hernia injury resulted in entitlement to either temporary disability or permanent disability on their claimed date of injury of 4/30/2019. Therefore, the first prong of Labor Code § 5412 has not been met to establish that there was a date of injury of 4/30/2019 per Labor Code § 5412 in this case. Therefore, defendant has not met their burden of proof on this issue.

Applicant was not terminated but forced to quit for unrelated medical reasons

Favours Applicant prevailed

Post termination defense does not apply

From the decision · page 8That purpose is not met here, since applicant was not terminated from his job, but was forced to quit as he was unable to perform his usual and customary job duties for medical reasons completely unrelated to the industrial hernia injury he is claiming in the instant case.

Found cumulative trauma injury through April 26, 2019 to abdomen in the form of hernia

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, we will grant reconsideration, and as our Decision After Reconsideration, we will affirm the Findings, Award and Order, except that we will amend to find that applicant sustained injury to the abdomen in the form of umbilical and inguinal hernia and to defer the issue of injury to any other body parts and to correct the award. Based on the medical record, including applicant's emergency room records and the reports of the qualified medical evaluators (QME), at this time substantial evidence only supports a finding that applicant sustained industrial injury to the abdomen in the form of umbilical and inguinal hernia. (Exhibit A, QME Report of Dr. Michael Fujinaka, M.D., dated May 4, 2022, p. 65; Exhibit C, QME Report of Rommel Hindocha, D.C., dated July 22, 2021, page 11; Exhibit I, Emergency Room visit San Mateo Medical (excerpted record) dated May 4, 2019, pp. 128 & 129.) Thus, we will grant reconsideration, amend Finding of Fact #1, Award #1, and the Amended Order.

Found separate cumulative trauma injury in the form of hernia; deferred to appropriate QME such as internal medicine

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, we will grant reconsideration, and as our Decision After Reconsideration, we will affirm the Findings, Award and Order, except that we will amend to find that applicant sustained injury to the abdomen in the form of umbilical and inguinal hernia and to defer the issue of injury to any other body parts and to correct the award. Based on the medical record, including applicant's emergency room records and the reports of the qualified medical evaluators (QME), at this time substantial evidence only supports a finding that applicant sustained industrial injury to the abdomen in the form of umbilical and inguinal hernia. (Exhibit A, QME Report of Dr. Michael Fujinaka, M.D., dated May 4, 2022, p. 65; Exhibit C, QME Report of Rommel Hindocha, D.C., dated July 22, 2021, page 11; Exhibit I, Emergency Room visit San Mateo Medical (excerpted record) dated May 4, 2019, pp. 128 & 129.) Thus, we will grant reconsideration, amend Finding of Fact #1, Award #1, and the Amended Order.

California Labor Code

LC 3208.1(b) defines industrial cumulative trauma and entitlement to benefits

Applicant met burden of proof for industrial cumulative trauma injury

From the decision · page 6LC § 3208.1(b) defines an industrial cumulative trauma as: "occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment."

California Labor Code

LC 5405(a) mandates one year statute of limitations from date of injury

Applicant filed claim within one year of knowledge of injury

From the decision · page 6California Labor Code § 5405(a) mandates that the period within which proceedings must be commenced for the collection of benefits is one year from the date of injury. The next question is, "What is the date of injury?" Labor Code § 5412 defines date of injury for cumulative trauma (CT) injuries, such as the claim of hernia, in the instant case as follows:

California Labor Code

LC 5412 defines date of injury for cumulative trauma injuries

Date of injury defined as date applicant entitled to temporary or permanent disability

From the decision · page 6California Labor Code § 5405(a) mandates that the period within which proceedings must be commenced for the collection of benefits is one year from the date of injury. The next question is, "What is the date of injury?" Labor Code § 5412 defines date of injury for cumulative trauma (CT) injuries, such as the claim of hernia, in the instant case as follows:

State Comp Ins Fund v. WCAB (Rodarte)

State Comp Ins Fund v. WCAB (Rodarte) (2004) 69 Cal Comp Cases 579 clarifies date of injury for CT claims

Medical treatment alone is not equivalent to temporary or permanent disability for date of injury

From the decision · page 7The 2nd District Court of Appeal in the case of State Comp Ins Fund v. WCAB (Rodarte) (2004) 69 Cal Comp Cases 579 clarified that "date of injury" in cases such as this means that date upon which the applicant was entitled to either compensable temporary disability or permanent disability because of the industrial injury in the form of a hernia." (Emphasis added.)

California Labor Code

LC 4600(a)(10) post termination defense conditions

Applicant not terminated; defense does not apply

From the decision · page 8LC § 3600 (a)(10) "....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. (D) The date of injury, as specified in Section 5412, is subsequent to the date of the notice of termination..."

Applicant's emergency room records and QME reports support industrial injury to abdomen in the form of hernia

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, we will grant reconsideration, and as our Decision After Reconsideration, we will affirm the Findings, Award and Order, except that we will amend to find that applicant sustained injury to the abdomen in the form of umbilical and inguinal hernia and to defer the issue of injury to any other body parts and to correct the award. Based on the medical record, including applicant's emergency room records and the reports of the qualified medical evaluators (QME), at this time substantial evidence only supports a finding that applicant sustained industrial injury to the abdomen in the form of umbilical and inguinal hernia. (Exhibit A, QME Report of Dr. Michael Fujinaka, M.D., dated May 4, 2022, p. 65; Exhibit C, QME Report of Rommel Hindocha, D.C., dated July 22, 2021, page 11; Exhibit I, Emergency Room visit San Mateo Medical (excerpted record) dated May 4, 2019, pp. 128 & 129.) Thus, we will grant reconsideration, amend Finding of Fact #1, Award #1, and the Amended Order.

Applicant's testimony that hernia occurred at work in 2018 after lifting a heavy rock

From the decision · page 5AA contends causation was not found for the hernia for the 4/29/2019 date of injury. Page 17 - "The patient also complains of what appears to be an umbilical hernia. According to the deposition of the applicant, dated 10/03/2019, the applicant stated that he sustained a hernia sometime in 2018 after lifting a heavy rock. The patient was subsequently seen at San Mateo Medical Center. This current evaluation is limited to the 4/29/2019 specific injury and it appears that the patient's hernia complaints were subsequent to the specific injury sustained on 4/29/2019. Therefore, I do not find any industrial causation of the patient's hernia complaints to the specific industrial injury dated 4/29/2019." 12/30/2020 Applicant was evaluated by Dr. Hindocha (Exhibit D) (ADJ12230813) who opined that the hernia was a separate CT injury because the applicant testified that it occurred at work sometime in 2018 after his hernia complaints had continued to worsen.