- Gonzalez v. Jezowski & Markel Contractors (BPD) (44 CWCR 137):
The applicant last worked his duties on November 22, 2013, prior to which time he had obtained medical treatment. The applicant indicated he stopped working on that date because of back pain. The applicant’s job duties included frequent bending and lifting heavy objects. The applicant testified that the physicians could not identify the cause of his back pain, although he had, on his own, form the opinion that his back pain was caused by his work.
Applicant had back surgery on March 14, 2014, and in May 2014 the physician who performed the surgery confirmed that applicant’s injury was work related.
Parties used an Agreed Medical Evaluator who concluded that because applicant’s exposure, albeit on modified duties, continued through November 25, 2013, that was the date of injury.
The arbitrator reasoned the date of injury was the final date worked on full duty, and in a Findings and Award, dated July 23, 2015, found the applicant’s cumulative trauma date of injury was November 22, 2013. The injury caused permanent disability of 37%, with indemnity payable total amount of $41,400.
Applicant sought reconsideration contending the date of injury was May 2014, when medical opinion confirmed the applicant’s disability was caused by his work.
The WCAB indicated that date of injury for a continuous trauma is determined by Labor Code §5412, which states the date of injury in cumulative trauma cases is the date on which the employee’s suffered disability and knew, or reasonably should have known, that said disability was caused by work.
Under the case law, the panel indicated that medical opinion is important but not dispositive in establishing employee’s knowledge of industrial injury.
The WCAB, citing City of Fresno (Johnson) (50 CCC 53), in the absence of medical opinion confirming industrial injury, an employee is not usually charged with knowledge that the disability was work-related. Johnson recognized, however, an exception where the nature of the disability in the employees training, intelligence or qualifications is such that an employee should have known that the disability was caused by work.
Applying the law to the facts of this case the WCAB found that low back pain was not an exotic disease that required expert opinion to determine causation. The panel noted that applicant’s testimony was not entirely consistent as the date of knowledge of industrial disability, but, on balance, it appeared the applicant relied on the doctors regarding the cause of his back disability and surgery.
The WCAB reversed the Arbitrator found that the date of injury was May 2014.
The WCAB seemed to be saying that although the applicant was of the opinion his back condition was work-related it was only when he had the reliable conclusion made by a doctor that the date of knowledge occurred.
Editor’s note from the CWCR indicated there was no discussion of the case law distinction between the date of injury and §5412 and the time of injury when the injured worker incurs compensable disability as a result of his work exposure. These issues involve the case of Dickow (38 CCC 664) and Van Voorhis (39 CCC 137) which conclude that for the purposes of determining compensation rate and earnings the first date of compensable disability which this case would have been November 2013. The WCAB does not discuss this issue.