ADJ325769 · February 2, 2024

The WCJ erred in relying on a barred cumulative trauma claim to deny permanent disability benefits for two specific injuries; the cases involve different body parts and dates of injury, so the barred claim does not preclude compensation in these cases.

From the decision · page 2Based on our review of the record and applicable law, we conclude that the WCJ erred in relying upon her July 16, 2013 denial of applicant's claim of cumulative trauma through November 18, 2001 (ADJ8143323) to reject amendment of the specific injuries of May 18, 1999 (ADJ325769) and January 11, 2001 (ADJ812096) to cumulative trauma claims. Therefore, we will rescind the WCJ's decisions and return the latter two cases to the trial level for further proceedings and new decisions by the WCJ.

The WCJ's July 16, 2013 decision barred a cumulative trauma claim (ADJ8143323) by Statute of Limitations, but this claim involved different body parts and dates than the two specific injuries in ADJ325769 and ADJ812096.

Favours Applicant prevailed

This distinction means the barred cumulative trauma claim does not preclude compensation for the specific injuries in the two cases, undermining the WCJ's basis for denying permanent disability benefits.

Dr. Brourman found the two stipulated specific injuries were actually cumulative traumas ending on the same dates as the specific injuries.

Favours Applicant prevailed

The WCJ relied on this opinion to deny permanent disability benefits, but the Board found this reliance erroneous because the barred cumulative trauma claim does not bar compensation for the specific injuries.

From the decision · page 2Notwithstanding that applicant has sustained two industrial injuries, which admittedly resulted in some degree of permanent disability, the WCJ disallowed permanent disability benefits altogether - for two reasons. First, Dr. Brourman, the Agreed Medical Evaluator ("AME") in orthopedics concluded that, as opposed to two specific injuries, applicant sustained cumulative trauma to his bilateral wrists "through May 18, 1999" and to his left elbow and left shoulder "through January 11, 2001." (WCAB Exhibit II, Brourman report dated August 13, 2019, pp. 68- 69.)2 Secondly, the WCJ found in her now-final Findings and Order of July 16, 2013 in ADJ8143323 that applicant sustained injury to both upper extremities during the period August 28, 1986 through November 18, 2001, and that this claim (ADJ8143323) was barred by the Statute of Limitations. The WCJ reasoned that since Dr.

The parties stipulated to permanent disability for psychiatric injuries at 5.5% each and acknowledged permanent disability for orthopedic injuries, though extent was undetermined.

Favours Applicant prevailed

This supports the conclusion that permanent disability benefits should not be disallowed outright and that the cases should be returned for further proceedings.

From the decision · page 2As noted in the WCJ's Report, the parties stipulated that applicant sustained industrial injury to his psyche and both wrists on May 18, 1999 (ADJ325769) and to his left elbow, left shoulder and psyche on January 11, 2001 (ADJ812096). The parties also stipulated that each of the two psychiatric injuries resulted in permanent disability of five and one-half percent, and that the two orthopedic injuries resulted in permanent disability, but the nature and extent of disability was not agreed upon. (See Minutes of Hearing, 6/5/14, pp. 4-7.)

Found cumulative trauma to bilateral wrists through May 18, 1999 and to left elbow and left shoulder through January 11, 2001, corresponding to the stipulated specific injuries.

The WCJ relied on Dr. Brourman's opinion converting specific injuries to cumulative trauma to deny permanent disability benefits, but the Appeals Board found this reliance erroneous because the barred cumulative trauma claim does not preclude compensation for the specific injuries.

From the decision · page 2Notwithstanding that applicant has sustained two industrial injuries, which admittedly resulted in some degree of permanent disability, the WCJ disallowed permanent disability benefits altogether - for two reasons. First, Dr. Brourman, the Agreed Medical Evaluator ("AME") in orthopedics concluded that, as opposed to two specific injuries, applicant sustained cumulative trauma to his bilateral wrists "through May 18, 1999" and to his left elbow and left shoulder "through January 11, 2001." (WCAB Exhibit II, Brourman report dated August 13, 2019, pp. 68- 69.)2 Secondly, the WCJ found in her now-final Findings and Order of July 16, 2013 in ADJ8143323 that applicant sustained injury to both upper extremities during the period August 28, 1986 through November 18, 2001, and that this claim (ADJ8143323) was barred by the Statute of Limitations. The WCJ reasoned that since Dr.

Labor Code section 5702

Labor Code section 5702 regarding amendment of injury claims

The Board held that the stipulations characterizing the injuries as specific must be disregarded and amended to cumulative trauma claims as per Dr. Brourman's opinion.

Stipulations by parties that applicant sustained industrial injury to psyche and wrists on May 18, 1999 and to left elbow and shoulder on January 11, 2001, with psychiatric permanent disability ratings agreed at 5.5% each.

From the decision · page 2As noted in the WCJ's Report, the parties stipulated that applicant sustained industrial injury to his psyche and both wrists on May 18, 1999 (ADJ325769) and to his left elbow, left shoulder and psyche on January 11, 2001 (ADJ812096). The parties also stipulated that each of the two psychiatric injuries resulted in permanent disability of five and one-half percent, and that the two orthopedic injuries resulted in permanent disability, but the nature and extent of disability was not agreed upon. (See Minutes of Hearing, 6/5/14, pp. 4-7.)

Chronology of prior WCJ findings and stipulations showing permanent disability was deferred but recognized, supporting the conclusion that disallowing benefits now would be unjust.

From the decision · page 3We are also persuaded that it would be manifestly unjust to apply the WCJ's July 16, 2013 decision in ADJ8143323 to bar applicant's claims of compensation in ADJ325769 and ADJ812096 given the chronology presented in this matter. In the latter two cases, the WCJ issued Findings and Awards long ago, on July 16, 2013, finding that applicant sustained industrial injury to both wrists (ADJ325769) and to his left elbow and shoulder (ADJ812096), and that each injury resulted in permanent disability "in an amount to be determined with jurisdiction reserved." (Italics added.) Within a year, the parties stipulated at hearing on June 5, 2014 that applicant also sustained industrial injury to his psyche in both cases, with a psychiatric permanent disability rating of five and one-half percent in each case.