Avila V. Associated Pacific Construction (BPD) (2014 Cal. Wrk Comp. P.D. LEXIS 185):
The WCAB held that:
1. The applicant who claimed an injury to his respiratory system was not presumed compensable because there was no evidence the applicant filed a claim form with the employer as required by LC § 5401 (c) and (d).
The WCAB ruled as follows:
1. To trigger the LC § 5402 (b) presumption of compensability: the use of a claim form is mandatory and the filing of the application for adjudication of claim is not sufficient to trigger the presumption.
2. The applicant was allowed to amend his pretrial conference statement on day of trial to include respiratory system as an injured body part in addition to right leg injury already listed on pretrial conference statement.
The WCAB stated that when defendant filed the declaration of readiness to proceed requesting an AOE-COE trial without limitations, applicants application for adjudication of claim listed body parts injured as: his right leg, back, bilateral wrist, foot, common respiratory system. Thereby he provided the defendant with notice that other body parts, including the respiratory system, were in dispute. This was done in initial pretrial conference statement prepared at mandatory settlement conference, where applicant listed more than 40 medical reports from several physicians who treated the applicant for injury to body parts other than his right leg. All were without objection by defendant; thus WCAB found that defendant knew or should have known that applicant was actively litigating all body parts even though only the right leg was formally raised in pretrial conference statement.