ADJ11091494 · August 15, 2022

The WCJ and WCAB found that although applicant had knowledge of the injury as early as 2009, compensable disability did not occur until October 10, 2017, the date of first surgery with temporary disability, making the claim timely filed within one year thereafter.

From the decision · page 5at pp.11-12.) The WCJ determined that while applicant had the requisite knowledge of the work-relatedness of her injuries as early as 2009, the evidence did not establish disability arising from the injury prior to applicant's first carpal tunnel release surgery in 2017. Accordingly, the WCJ set the date of injury at October 10, 2017, the date applicant first had both disability in the form of compensable temporary disability following surgery, and knowledge of its industrial causation. (Id. at p.13.) Because the application for adjudication was filed on November 9, 2017, the commencement of proceedings for collection of benefits was within one year of the date of injury, and the claim was not barred by the limitations period of section 5405. (Ibid.)

Applicant had knowledge of work-related injury as early as 2009 but did not have compensable disability until October 10, 2017.

Favours Applicant prevailed

This fixed the date of injury for statute of limitations purposes, making the claim timely filed within one year thereafter.

From the decision · page 9The WCJ determined the section 5412 date of injury to be October 10, 2017. (F&A, Opinion on Decision, p.13.) The WCJ observed that the `knowledge' requirement of section 5412 was satisfied as early as 2009, when applicant was evaluated by her private physician Dr. Rathbun, for her wrist-related complaints. (Ibid.; September 21, 2021 Minutes, at 7:22.) Noting that the `disability' requirement of section 5412 requires either compensable permanent or temporary disability, the WCJ observed the first compensable wage loss due to the injury as supported in the record was the period of temporary disability following applicant's carpal tunnel release surgery on October 10, 2017. (Ex. 2, records from Neurosurgical Medical Group dated January 5, 2018, p.30.) The concurrence of preexisting knowledge, and the first compensable temporary disability, fixed the section 5412 date of injury as October 10, 2017. (F&A, Opinion on Decision, p.13.)

Applicant filed the application for adjudication on November 9, 2017, within one year of the date of injury.

Favours Applicant prevailed

This established timeliness of the claim under Labor Code section 5405.

From the decision · page 5at pp.11-12.) The WCJ determined that while applicant had the requisite knowledge of the work-relatedness of her injuries as early as 2009, the evidence did not establish disability arising from the injury prior to applicant's first carpal tunnel release surgery in 2017. Accordingly, the WCJ set the date of injury at October 10, 2017, the date applicant first had both disability in the form of compensable temporary disability following surgery, and knowledge of its industrial causation. (Id. at p.13.) Because the application for adjudication was filed on November 9, 2017, the commencement of proceedings for collection of benefits was within one year of the date of injury, and the claim was not barred by the limitations period of section 5405. (Ibid.)

Defendant failed to prove prejudice from lack of timely notice of injury claim.

Favours Applicant prevailed

Without proof of prejudice, the statute of limitations defense fails.

From the decision · page 7Here, defendant has not substantively addressed the issue of whether the employer was in some way misled or prejudiced for want of notice of the claim. Defendant interposes no witness testimony on the issue, marshals no documentary evidence, and offers no specific argument on this point. Defendant has therefore not proven prejudice for lack of notice of any injury prior to June 1, 2017, and has not carried the burden of establishing that compensation is barred under section 5400.

Applicant's bilateral carpal tunnel syndrome is causally related to the industrial injury during employment from 08/17/09 to 06/01/17, supported by medical literature and work activity biomechanics.

Supports industrial causation and compensability of injury.

From the decision · page 4Along those lines, as illustrated above, the applicant's work activities, which included manual tasks such as typing, definitely contributed to her symptomatology, need for medical treatment, and need for labor disability. That being the case, and once again appreciating that the biomechanics of the applicant's work activities which she performed between 08/17/09 and 06/0l/17are pathophysiologically consistent with carpal tunnel syndrome, and recognizing the references from the current medical literature which document an association between carpal tunnel syndrome and the types of manual activities which the applicant performed during this time period, the undersigned examiner puts forth a supported conclusion to state with reasonable medical probability that the applicant's bilateral carpal tunnel syndrome is causally related to the subject industrial injury of CT 08/17/09 - 06/01/17, arising out of and through the course of employment with Sharp Healthcare. (Ex. 1, report of QME Alexander Caligiuri, D.C., dated January 23, 2018, p.13.)

Labor Code sections 5405, 5412

Applicant has one year to file an application for adjudication from the date of injury, which for cumulative trauma claims is defined by the concurrence of compensable disability and knowledge of industrial causation under Labor Code section 5412.

The WCJ applied this standard to determine the date of injury as October 10, 2017, when compensable temporary disability first occurred, making the claim timely filed.

From the decision · page 16The WCJ disagrees and concludes that defendant has failed to bear its burden of proof on the affirmative defense of the statute of limitations. The WCJ discusses below. It is well established that an applicant has one year to file an application for adjudication from: (a) the date of injury, (b) The expiration of any period covered by payment under Article 3 (commencing with Section 4650), (c) The last date on which any benefits provided for in Article 2 (commencing with Section 4600)....were furnished (Labor Code section 5405). In this case, no benefits were paid. Thus, in order to properly analyze the statute of limitations defense, the WCJ must first determine the date of injury. In the instant matter, Applicant filed a cumulative trauma claim. Per Labor Code section, 5405 (a)-(c) the determination of the "date of injury" for a CT claim is governed by Labor Code section 5412. Thus, the WCJ begins the analysis under Labor Code section 5412. Labor Code section 5412 contains the definition of "date of injury" for a cumulative injury. The date of a cumulative injury is based on the concurrence of two elements: (1) compensable disability...and (2) knowledge of industrial causation.... Under Labor Code section 5412, the term

Applicant's credible testimony and consistent medical reporting established industrial causation to bilateral wrists, fingers, hands, and carpal tunnel syndrome.

From the decision · page 15Applicant's unrebutted testimony regarding how the alleged injury occurred is consistent throughout the medical reporting as well as at the trial. There is no evidence presented by either testimony or medical reporting indicating that Applicant has not sustained injury arising out of and in the course of employment to her bilateral wrists. Rather, defendant relies upon the affirmative defense of statute of limitations.

Defendant failed to prove prejudice from lack of timely notice of injury claim.

From the decision · page 7Here, defendant has not substantively addressed the issue of whether the employer was in some way misled or prejudiced for want of notice of the claim. Defendant interposes no witness testimony on the issue, marshals no documentary evidence, and offers no specific argument on this point. Defendant has therefore not proven prejudice for lack of notice of any injury prior to June 1, 2017, and has not carried the burden of establishing that compensation is barred under section 5400.