ADJ17812320 · April 8, 2024

The Board found the claim was not barred by the post-termination defense because defendant failed to prove applicant had disability and knowledge of industrial cause prior to layoff, and amended Findings of Fact to include injury to cervical spine and left shoulder.

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, and for the reasons stated in the WCJ's report, which we adopt and incorporate, except as noted below, and the reasons stated below, we will grant reconsideration, amend the WCJ's decision in order to properly note the jurisdictional findings in Finding of Fact number 1, including injury arising out of and occurring in the course of employment (AOE/COE) to the cervical spine and left shoulder. We otherwise affirm the January 19, 2024 Findings and Award. Pursuant to our authority, we accept defendant's supplemental pleading. (Cal. Code Regs., tit. 8, § 10964.)

Applicant did not have compensable temporary or permanent disability prior to layoff as required by Labor Code section 5412.

Favours Applicant prevailed

This fact meant the post-termination bar to compensation did not apply, favoring applicant's claim acceptance.

From the decision · page 7employer training material in English, she testified at trial that Spanish was her first language. (MOH/SOE, 4/21/23, at p. 7:18-19.) On the other hand, applicant reported pain to a team coordinator and did not receive a claim form. (MOH/SOE, 4/21/23, at p. 5:8-10.) Based on this record, we do not find the requisite knowledge pursuant to section 5412. Likewise, we do not find applicant suffered compensable temporary disability prior to that found by the WCJ. While there is trial testimony that applicant used PTO and unpaid time due to her pain, there is no evidence in the record as to when this occurred.

Applicant's credible testimony that she reported pain to team coordinator but was not given a claim form and had limited knowledge of workers' compensation due to language barrier.

Favours Applicant prevailed

Supported finding that applicant did not have requisite knowledge of industrial cause prior to layoff, favoring applicant.

From the decision · page 4Applicant mentioned that she reported her pain to her "TC" which stood for Team Coordinator. This person was Rosa Gonzalez, and applicant told her about the pain. She did not receive a claim form."

Found injury to cervical spine and left shoulder and recommended further medical work up for additional body parts; opined injury was compensable but deferred final causation acceptance due to post-termination defense.

The PQME found injury to cervical spine and left shoulder and recommended further work up; the Board relied on this opinion to amend jurisdictional findings and defer other body parts.

From the decision · page 1Defendant does not dispute the WCJ's finding of industrial cumulative injury in its Petition for Reconsideration. The panel qualified medical examiner (PQME), Kelly Keough, D.C., found injury to the cervical spine and left shoulder (Joint Exhibit 2, at pp. 3-4) and recommended further medical work up for additional body parts. (Joint Exhibit 1, at p. 2.) Therefore, we will amend

Labor Code sections 3600(a)(10), 5412, 5705

Post-termination bar to compensation under Labor Code section 3600(a)(10) and statute of limitations under Labor Code section 5412 require defendant to prove claim was filed after notice of termination and injury occurred prior to notice; burden of proof rests with defendant.

The Board applied these statutes to find defendant failed to meet burden to bar claim and that applicant did not have disability or knowledge prior to layoff.

From the decision · page 2industrial injury to the cervical spine and left shoulder, and to defer all other body parts. As relevant here, Labor Code1 section 3600(a)(10) states, that:

Applicant's credible trial testimony describing job duties causing pain and reporting pain to team coordinator but not receiving claim form; employer's failure to provide claim form and applicant's limited knowledge of workers' compensation due to language barrier favored applicant.

From the decision · page 3The December 21, 2023 Minutes of Hearing and Summary of Evidence (MOH/SOE) summarize the totality of applicant's trial testimony as follows: