ADJ17096552 · September 4, 2026

The WCJ and WCAB found that the last date of injurious exposure was November 21, 2021, and the date of injury under section 5412 was September 2, 2022, based on medical evidence and applicant's knowledge of industrial causation. The statute of limitations defense was rejected because the claim was filed within one year of the date of injury.

From the decision · page 3him … to the hazards of the occupational disease or cumulative injury, whichever occurs first.” Applicant worked for defendant until November 21, 2021. Zurich argues that liability cannot be imposed against it because applicant did not present substantial medical evidence that applicant sustained injurious exposure during its period of alleged coverage. In other words, while it is uncontested that applicant worked until November 21, 2021, Zurich complains that applicant did not prove that any industrial exposure between the period between September 16, 2021 and November 21, 2021 contributed to disability or the need for further medical treatment. While Zurich is correct that a defendant may escape liability if it can show that a discrete period of employment was not injurious (Scott Co. v. Workers’ Comp. Appeals Bd.

The WCAB amended the temporary disability period to start from August 10, 2022 through February 1, 2024, based on medical evidence from QME Dr. Hendel and the hospitalization of the applicant. The issue of temporary disability before or after these dates was deferred for further development.

From the decision · page 8disability. We defer the issue of temporary disability after February 1, 2024 pending further development of the record. Similarly, we defer the issue of any periods of temporary disability preceding August 10, 2022 pending further development of the record. Although the defendant also casts doubt on the temporary disability period based on “evidence” of applicant’s employment as a home health aid, the only evidence in the record was applicant’s testimony that he “stopped taking care of his son through IHSS in 2022.” (Minutes of Hearing and Summary of Evidence of March 16, 2022 trial at p. 4.) Accordingly, there is no evidence that applicant was employed during any periods for which we have found temporary disability. For the foregoing reasons, IT IS ORDERED that Zurich’s Petition for Reconsideration of the Findings and Award of June 15, 2026 is GRANTED. IT IS FURTHER ORDERED as the Decision After Reconsideration of the Workers’ Compensation Appeals Board that the Findings and Award of June 15, 2026 is AMENDED as follows:

Applicant's last date of injurious exposure was November 21, 2021, the last day worked for the employer.

Favours Applicant prevailed

This date sets the one-year liability period under Labor Code section 5500.5 for employer/carrier liability.

From the decision · page 3him … to the hazards of the occupational disease or cumulative injury, whichever occurs first.” Applicant worked for defendant until November 21, 2021. Zurich argues that liability cannot be imposed against it because applicant did not present substantial medical evidence that applicant sustained injurious exposure during its period of alleged coverage. In other words, while it is uncontested that applicant worked until November 21, 2021, Zurich complains that applicant did not prove that any industrial exposure between the period between September 16, 2021 and November 21, 2021 contributed to disability or the need for further medical treatment. While Zurich is correct that a defendant may escape liability if it can show that a discrete period of employment was not injurious (Scott Co. v. Workers’ Comp. Appeals Bd.

Applicant's date of knowledge of industrial causation was September 2, 2022, when Dr. Lira informed him his condition was work-related.

Favours Applicant prevailed

This date establishes the Labor Code section 5412 date of injury and supports the timeliness of the claim filing.

From the decision · page 5However, we find that applicant’s main symptoms of difficulty with exertion were not obviously caused by exposure to silica, and applicant was actually initially referred to a cardiologist rather than a pulmonologist. (December 18, 2023 report of QME Hendel at p. 19.) Applicant was not given a definitive diagnosis of silicosis until October 12, 2022. (October 12, 2022 report of Dr. Lira.) The WCJ correctly found that applicant was not chargeable with knowledge of industrial causation until he first saw Dr. Lira. Applicant testified at trial that “Dr. Lira told him that his condition was caused by work. He was told this by Dr. Lira in approximately August of 2022.” (Minutes of Hearing and Summary of Evidence of March 16, 2026 trial at p. 3.) The record shows that applicant first saw Dr. Lira on September 2, 2022, just two days after August of 2022, and thus consistent with applicant’s testimony. Accordingly, we affirm the WCJ’s analysis that applicant’s date of knowledge of industrial causation was September 2, 2022. C. Date of First Disability

Applicant was temporarily totally disabled from August 10, 2022 through February 1, 2024, based on medical evidence and hospitalization records.

Favours Applicant prevailed

This fact supports the award of temporary disability benefits for the specified period.

From the decision · page 8disability. We defer the issue of temporary disability after February 1, 2024 pending further development of the record. Similarly, we defer the issue of any periods of temporary disability preceding August 10, 2022 pending further development of the record. Although the defendant also casts doubt on the temporary disability period based on “evidence” of applicant’s employment as a home health aid, the only evidence in the record was applicant’s testimony that he “stopped taking care of his son through IHSS in 2022.” (Minutes of Hearing and Summary of Evidence of March 16, 2022 trial at p. 4.) Accordingly, there is no evidence that applicant was employed during any periods for which we have found temporary disability. For the foregoing reasons, IT IS ORDERED that Zurich’s Petition for Reconsideration of the Findings and Award of June 15, 2026 is GRANTED. IT IS FURTHER ORDERED as the Decision After Reconsideration of the Workers’ Compensation Appeals Board that the Findings and Award of June 15, 2026 is AMENDED as follows:

Dr. Hendel testified that he could not definitively state when applicant first contracted silicosis and suggested the entire period of employment may have been injurious. He opined in December 18, 2023 report that applicant was temporarily disabled and likely to continue, but left continuation to treating physicians' discretion.

Dr. Hendel's medical opinion supported the finding of temporary disability from August 10, 2022 through February 1, 2024.

From the decision · page 7Since we find that applicant was temporarily disabled as of August 10, 2022 at the latest, we will amend the commencement date of applicant’s temporary disability to reflect that date. With regard to the finding of continuous temporary disability, we agree with Zurich that the record does not support a finding of temporary disability beyond a reasonable period after the issuance of Dr. Hendel’s December 18, 2023 report, which is the only report to address temporary disability. Dr. Hendel opined in his December 18, 2023 report that applicant was then temporarily disabled. Although Dr. Hendel opined that applicant would likely continue to be temporarily disabled, at his November 22, 2024 deposition, Dr. Hendel left the question of continuing temporary disability to the discretion of applicant’s treating physicians. (November 22, 2024 deposition at p. 32.) Administrative Rule 9785(f)(8) requires a primary treating physician to issue a status report at least every 45 days. (Cal. Code Regs., tit. 8, § 9785, subd. (f)(8).) Although this rule is not applicable to qualified medical evaluators, we find 45 days a reasonable amount of time for temporary disability status to continue after a physician’s finding of then-current temporary

Dr. Lira provided the diagnosis of silicosis and informed the applicant that his condition was caused by work, establishing the date of knowledge of industrial causation as September 2, 2022.

Dr. Lira's diagnosis and communication to applicant established the date of injury under Labor Code section 5412.

From the decision · page 5However, we find that applicant’s main symptoms of difficulty with exertion were not obviously caused by exposure to silica, and applicant was actually initially referred to a cardiologist rather than a pulmonologist. (December 18, 2023 report of QME Hendel at p. 19.) Applicant was not given a definitive diagnosis of silicosis until October 12, 2022. (October 12, 2022 report of Dr. Lira.) The WCJ correctly found that applicant was not chargeable with knowledge of industrial causation until he first saw Dr. Lira. Applicant testified at trial that “Dr. Lira told him that his condition was caused by work. He was told this by Dr. Lira in approximately August of 2022.” (Minutes of Hearing and Summary of Evidence of March 16, 2026 trial at p. 3.) The record shows that applicant first saw Dr. Lira on September 2, 2022, just two days after August of 2022, and thus consistent with applicant’s testimony. Accordingly, we affirm the WCJ’s analysis that applicant’s date of knowledge of industrial causation was September 2, 2022. C. Date of First Disability

Labor Code section 5500.5

Labor Code section 5500.5 limits liability for occupational disease to employers during the one-year period preceding the date of injury or last injurious exposure.

Applied to determine the liability period for the occupational disease.

From the decision · page 2A. Last Date of Injurious Exposure Labor Code section 5500.5(a) states in pertinent part, “liability for occupational disease or cumulative injury … shall be limited to those employers who employed the employee during a period of [one year] immediately preceding either the date of injury, as determined pursuant to Section 5412, or the last date on which the employee was employed in an occupation exposing

Labor Code section 5412

Labor Code section 5412 defines the date of injury in cumulative injury cases as the date the employee first suffered disability and knew or should have known it was caused by employment.

Applied to determine the date of injury and knowledge of industrial causation.

From the decision · page 5B. Knowledge of Industrial Injury As noted above, Labor Code section 5500.5(a) sets the liability date as the earlier of the one-year period preceding the last date of injurious exposure and the Labor Code section 5412 date of injury. Section 5412 defines the date of injury in cumulative injury cases 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.” (Lab. Code, § 5412.) With regard to the date that an injured worker “knew, or in the exercise of reasonable diligence, should have known” that a disability was industrial, in City of Fresno v. Workers’ Comp. Appeals Bd. (Johnson) (1985) 163 Cal.App.3d 467, 472 [50 Cal.Comp.Cases 53], the Court of Appeal advised, “An employee clearly may be held to be aware that his or her disability was caused by the employment when so advised by a physician. Generally, until he receives such medical advice, he is not chargeable with knowledge of his condition and its relation to his work…” Zurich argues that applicant was chargeable with knowledge of the industrial nature of the injury because he knew that he worked in a dusty environment and that he was told in the hospital in August of 2022 that his condition “could have been caused” by his work.

Administrative Rule 9785(f)(8)

Administrative Rule 9785(f)(8) requires a primary treating physician to issue status reports at least every 45 days, used here to justify a 45-day period of temporary disability continuation after a physician's report.

Applied to limit the temporary disability period after the QME report to 45 days.

From the decision · page 7Since we find that applicant was temporarily disabled as of August 10, 2022 at the latest, we will amend the commencement date of applicant’s temporary disability to reflect that date. With regard to the finding of continuous temporary disability, we agree with Zurich that the record does not support a finding of temporary disability beyond a reasonable period after the issuance of Dr. Hendel’s December 18, 2023 report, which is the only report to address temporary disability. Dr. Hendel opined in his December 18, 2023 report that applicant was then temporarily disabled. Although Dr. Hendel opined that applicant would likely continue to be temporarily disabled, at his November 22, 2024 deposition, Dr. Hendel left the question of continuing temporary disability to the discretion of applicant’s treating physicians. (November 22, 2024 deposition at p. 32.) Administrative Rule 9785(f)(8) requires a primary treating physician to issue a status report at least every 45 days. (Cal. Code Regs., tit. 8, § 9785, subd. (f)(8).) Although this rule is not applicable to qualified medical evaluators, we find 45 days a reasonable amount of time for temporary disability status to continue after a physician’s finding of then-current temporary

Applicant's testimony that he stopped taking care of his son through IHSS in 2022, contradicting defendant's claim of employment during temporary disability period.

From the decision · page 8disability. We defer the issue of temporary disability after February 1, 2024 pending further development of the record. Similarly, we defer the issue of any periods of temporary disability preceding August 10, 2022 pending further development of the record. Although the defendant also casts doubt on the temporary disability period based on “evidence” of applicant’s employment as a home health aid, the only evidence in the record was applicant’s testimony that he “stopped taking care of his son through IHSS in 2022.” (Minutes of Hearing and Summary of Evidence of March 16, 2022 trial at p. 4.) Accordingly, there is no evidence that applicant was employed during any periods for which we have found temporary disability. For the foregoing reasons, IT IS ORDERED that Zurich’s Petition for Reconsideration of the Findings and Award of June 15, 2026 is GRANTED. IT IS FURTHER ORDERED as the Decision After Reconsideration of the Workers’ Compensation Appeals Board that the Findings and Award of June 15, 2026 is AMENDED as follows: