What the panel ordered
Petition for Reconsideration denied, affirming that the claim is not barred by the statute of limitations.
Defendant sought reconsideration of the WCJ's Findings of Fact that applicant's claim was not barred by the statute of limitations.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The WCJ found that applicant did not have actual or constructive knowledge of the industrial causation of her cancer until the medical expert Dr. Wiseman found it in 2019, which was after the filing of the Application for Adjudication in 2018, thus the claim was not barred by the statute of limitations.
From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings of Fact of February 4, 2021, wherein it was found that applicant's claim is not barred by the statute of limitations. In this matter, applicant claims that, while employed as a police officer during a cumulative period ending on August 13, 2012, she sustained industrial injury in the form of cancer, specifically squamous cell carcinoma of the anus.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
PQME Dr. Wiseman did not find industrial causation of the cancer until his 2019 report.
Favours Applicant prevailed
This finding was critical to the WCJ's conclusion that applicant did not have knowledge of industrial causation before filing the claim in 2018.
From the decision · page 4While I cannot prove in detail the mechanism leading to this cancer, it would seem to be extremely difficult to falsify that there was no relationship between the exposure to the virus, exposure to the immunosuppressants, and the ultimate development of carcinoma of the anus. Exposure to HPV is almost universal, anal cancer is extremely rare. I do not know how to disprove the notion that the Injured Worker's exposures to hazardous, carcinogenic, and immunosuppressive agents contributed to development of her cancer. I opine that, in my considered medical opinion, the cancer is AOE/COE and is 100% industrially related." (emphasis added) (See EAMS Doc ID 34608486 under "Discussion/Causation".)
Applicant filed the Application for Adjudication of Claim on April 24, 2018, before Dr. Wiseman's 2019 report.
Favours Applicant prevailed
This timing showed the claim was filed within the statute of limitations period as applicant lacked knowledge of industrial causation before this date.
From the decision · page 2On April 24, 2018, applicant, through counsel, filed an Application for Adjudication of Claim for a cumulative trauma occurring during the period of April 18, 1994 through August 13, 2012 alleging injury to "880 other body systems", "toxic exposure and environmental carcinogens/cancer." (See EAMS Doc ID 26113263). There is no DWC-1 Claim Form on file in association with the pled cumulative trauma injury. On July 10, 2018, defendant filed an Answer to Application of Adjudication of Claim wherein the claim was denied AOE/COE. (See EAMS Doc ID 26743876.)
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Initially unable to determine industrial causation of applicant's squamous cell carcinoma of the anus in 2013, but in a 2019 report opined that the cancer is 100% industrially related and AOE/COE.
Dr. Wiseman's 2019 report was the first to find industrial causation, which was critical to the WCJ's finding on the statute of limitations issue.
From the decision · page 2While still unrepresented, applicant attended a PQME evaluation with Dr. Charles Wisemen, M.D. on March 26, 2013. In his report of the same date (signed April 26, 2013) under "Discussion/Causation" Dr. Weisman opined that not only was he unable to define a precise date of injury, he was also unable to determine if applicant's squamous cell carcinoma of the anus was casually connected to her employment. (See EAMS Doc ID 34608487.) Thereafter by way of correspondence dated May 14, 2013 defendant denied the claim based on Dr. Wiseman's reporting. (See EAMS Doc ID 34608494.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
California Labor Code §5405
The statute of limitations under California Labor Code §5405 bars claims not filed within one year of knowledge of injury's industrial relationship.
The WCJ applied this statute to determine timeliness of the claim based on knowledge of industrial causation.
From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings of Fact of February 4, 2021, wherein it was found that applicant's claim is not barred by the statute of limitations. In this matter, applicant claims that, while employed as a police officer during a cumulative period ending on August 13, 2012, she sustained industrial injury in the form of cancer, specifically squamous cell carcinoma of the anus.
California Labor Code §5412
Date of injury for cumulative trauma claims is the concurrence of compensable disability and knowledge of industrial relationship under California Labor Code §5412.
The WCJ applied this statute to analyze the date of injury and knowledge for the cumulative trauma claim.
From the decision · page 3Per California Labor Code § 5412, the "date of injury" for purposes of determining the commencement of the limitations period in a cumulative injury case is the concurrence of compensable disability and the date of the employee's knowledge of the injury's industrial relationship. Determination of a section 5412 "date of injury" is therefore a two-part analysis: 1) when did the employee first suffer a compensable disability from a cumulative injury and; 2) when did the employee know or in the exercise of reasonable diligence should have known, that the compensable disability was caused by her employment. (State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th. 998.) Whether an employee knew, or in the exercise of reasonable diligence should have known, that the disability was caused by employment is a question of fact, and the employer bears the burden of proof. (Nielsen v. Workers' Comp. Appeals Bd. (1985) 50 Cal.Comp.Cases 104; County of Riverside v. Workers' Comp. Appeals Bd. (Sylves) (2017) 82 Cal.Comp.Cases 301, 305; City of Los Angeles v. Workers' Comp. Appeals Bd. (Travers) (2010) 75 Cal.Comp.Cases 148 (writ denied).)
What proof carried it
The evidence the panel weighed, by kind.
Applicant's belief in 2012 that her cancer was work-related was refuted by the PQME's initial report.
From the decision · page 5The trier of fact is required to render an opinion based on evidence, not one based on argument or conjecture. While applicant may have believed her squamous cell carcinoma was connected to her employment back in 2012 this belief was refuted by the reporting of the PQME.
PQME Dr. Wiseman's 2019 report finding industrial causation was critical evidence favoring applicant's claim was timely.
From the decision · page 4While I cannot prove in detail the mechanism leading to this cancer, it would seem to be extremely difficult to falsify that there was no relationship between the exposure to the virus, exposure to the immunosuppressants, and the ultimate development of carcinoma of the anus. Exposure to HPV is almost universal, anal cancer is extremely rare. I do not know how to disprove the notion that the Injured Worker's exposures to hazardous, carcinogenic, and immunosuppressive agents contributed to development of her cancer. I opine that, in my considered medical opinion, the cancer is AOE/COE and is 100% industrially related." (emphasis added) (See EAMS Doc ID 34608486 under "Discussion/Causation".)
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About this page
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