ADJ11665067 · September 29, 2025

Defendants failed to prove notice of termination or layoff or that the claim was filed post-termination; thus, compensation is not barred under section 3600(a)(10).

The medical evidence from QME Dr. Mikhael and treating physician Dr. Bazel uniformly supports injury AOE/COE, and defendants offered no rebuttal evidence; the WCJ's requirement for applicant testimony was not supported by law as substantial evidence supports injury AOE/COE.

From the decision · page 4The March 25, 2019 report of orthopedic QME Dr. Mikhael diagnosed applicant as having sustained injury to the lumbar spine, bilateral shoulders, and right hand and wrist. (Ex. 25, Report of Mark Mikhael, M.D., dated March 25, 2019, at p. 9.) The QME concluded that "[i]t is within [a] reasonable degree of medical probability that the injury sustained by the examinee arose out of the course of employment due to cumulative trauma from the dates of October 24, 2013 to October 24, 2018." (Ibid.) Thus, the QME has identified injury AOE/COE.

Medical evidence from QME Dr. Mikhael and treating physicians uniformly supports injury AOE/COE.

Favours Applicant prevailed

This uncontradicted medical evidence was accepted as true and led to rescinding the prior Findings and Order.

From the decision · page 6Here, the medical reporting in evidence is uniform in its endorsement of industrial injury. Defendants offer no substantive factual, medical, or medical-legal challenge to the assessment of injury AOE/COE reached by the evaluating and treating physicians in this matter. While the Compromise and Release agreement asserts that employer witnesses could testify as to whether applicant timely reported an injury (Compromise and Release, dated October 15, 2019, at p. 7), the issue of injury AOE/COE was specifically raised and submitted for decision in these supplemental proceedings, and defendants declined to interpose witness testimony to rebut the medical and medical-legal reporting. (Minutes, at p. 2:10.)

Defendants failed to provide evidence of termination or layoff notice to support compensation bar under section 3600(a)(10).

Favours Applicant prevailed

Without proof of termination or layoff, defendants did not meet their burden to bar compensation.

Diagnosed injury to lumbar spine, bilateral shoulders, and right hand and wrist; opined injury arose out of and in the course of employment due to cumulative trauma from October 24, 2013 to October 24, 2018.

The QME report establishes injury AOE/COE.

From the decision · page 4The March 25, 2019 report of orthopedic QME Dr. Mikhael diagnosed applicant as having sustained injury to the lumbar spine, bilateral shoulders, and right hand and wrist. (Ex. 25, Report of Mark Mikhael, M.D., dated March 25, 2019, at p. 9.) The QME concluded that "[i]t is within [a] reasonable degree of medical probability that the injury sustained by the examinee arose out of the course of employment due to cumulative trauma from the dates of October 24, 2013 to October 24, 2018." (Ibid.) Thus, the QME has identified injury AOE/COE.

Identified orthopedic injuries as cumulative trauma while working as fabric cutter; agreed with QME that applicant sustained industrial injury; noted applicant remains temporarily partially disabled.

The treating physician's reports support injury AOE/COE and temporary partial disability.

From the decision · page 4In addition, treating physician Michael Bazel, M.D. has identified orthopedic injuries in his reporting of November 20, 2018, characterized as a "cumulative trauma, while working as fabric cutter." (Ex. 11, Reports of Michael Bazel, M.D., dated November 20, 2018, at p. 1.) Dr. Bazel noted that applicant's clinical findings were consistent with the history provided by applicant, while instituting both a treatment plan and work restrictions. (Id. at p. 2.) Dr. Bazel's

Supplemental report concurs with QME findings and notes ongoing temporary partial disability.

The treating physician's supplemental report supports injury AOE/COE and ongoing disability.

From the decision · page 5report of June 24, 2019 similarly notes applicant's complaints of orthopedic injury to the neck, right shoulder, left hand, back, bilateral legs, ankles and heels. (Ex. 12, Reports of Michael Bazel, M.D., dated June 24, 2019, at p. 2.) Dr. Bazel notes his agreement with QME Dr. Mikhael that applicant sustained industrial injury and further noted that applicant "remains temporarily partially disabled from the effects of his cumulative industrial injury." (Id. at p. 3.) And in a supplemental report of September 24, 2019, Dr. Bazel noted his general concurrence with the findings of the QME and applicant's ongoing temporary partial disability. (Ex. 18, Report of Michael Baze, M.D., dated September 24, 2019, at p. 3.)

Labor Code section 5902; Cal. Code Regs., tit. 8, 10940(c)

Petition for reconsideration must be verified under Labor Code section 5902 and WCAB Rule 10940(c).

The Board reviewed the unverified petition on the merits but reminded lien claimant of the verification requirement.

Labor Code sections 3600(a)(10), 5705

Burden of proof for compensation bar under Labor Code section 3600(a)(10) rests with the party asserting the defense.

Defendants failed to prove termination or layoff notice; thus, did not meet burden to bar compensation.

Uniform medical reporting from QME and treating physicians supports injury AOE/COE; no rebuttal evidence from defendants.

From the decision · page 6Here, the medical reporting in evidence is uniform in its endorsement of industrial injury. Defendants offer no substantive factual, medical, or medical-legal challenge to the assessment of injury AOE/COE reached by the evaluating and treating physicians in this matter. While the Compromise and Release agreement asserts that employer witnesses could testify as to whether applicant timely reported an injury (Compromise and Release, dated October 15, 2019, at p. 7), the issue of injury AOE/COE was specifically raised and submitted for decision in these supplemental proceedings, and defendants declined to interpose witness testimony to rebut the medical and medical-legal reporting. (Minutes, at p. 2:10.)

Lack of applicant testimony was held by WCJ to be necessary but was rejected by the Appeals Board as not required for injury AOE/COE finding.

From the decision · page 5The WCJ's Opinion on Decision reasons that "[f]actual disputes typically require the applicant's testimony, particularly when there is an issue as to whether the asserted injury occurred in the course of employment." (Opinion on Decision, at p. 2.) The WCJ's Report concludes that "in order for lien claimant to establish their prima facie case, the applicant's testimony was necessary," and that because lien claimant failed to subpoena the appearance of applicant at trial to testify, lien claimant did not meet its affirmative burden of proving injury AOE/COE. (Report, at p. 3.)