ADJ11780107 · February 15, 2023

The Board found that the applicant's claim was not barred by the statute of limitations because the Amended Application filed on December 20, 2018 was timely and the applicant did not have sufficient knowledge of her cumulative trauma claim against IHSS before that date.

From the decision · page 3Date of Alleged Injury: March 1, 2016 through June 14, 2017 Parts of Body Alleged: Cervical spine, bilateral wrists, bilateral hands, back, bilateral hips, bilateral knees, Identity of Petitioner: bilateral ankles, bilateral feet, bilateral Timeliness: elbows, bilateral arms, psyche. Verification: Defendant Date of Orders: The petition was timely filed on December 19, 2022 The petition was verified November 23, 2022

Applicant's claim was filed timely on December 20, 2018, as evidenced by the Amended Application served on IHSS at the correct address.

Favours Applicant prevailed

This established that the claim was not barred by the statute of limitations under Labor Code 5405 and 5412.

From the decision · page 8Petitioner raised for the first time on Reconsideration that the "Proof of Service contained an inaccurate address and so defendant was not `reasonably put on notice that applicant was asserting a cause of action against it as of December 20, 2018'" and that it did not "receive nitice (sic) of this claim until 2020." (See Petition for Reconsideration, 5:25-28, pgs. 5-9, EAMS Doc ID 44343922.) The case law is clear, "[i]t is improper to seek reconsideration on an issue not presented at the trial level." (See Cottrell v. Worker's Comp. Appeals Bd. (1998) 63 Cal. Comp. Cases 760, 761 (writ den.).) Despite the inappropriate nature of the argument now made, the Court confirmed that the address listed on the Proof of Service for defendant IHSS is the same address that is listed on the Official Address Record and is thus the same address at which the defendant employer has been receiving all WCAB notices. At no point has petitioner ever indicated that the address for its client was incorrectly noted and at no point did the petitioner move to have the Official Address Record corrected. The evidentiary record therefore remains clear that defendant IHSS was served with the Amended Application on December 20, 2018 as is so indicated on the Proof of Service and therefore was reasonably put on notice that applicant was asserting a cause of action against it.

Applicant first suffered compensable disability from the cumulative trauma injury as of June 18, 2019, per Dr. Morris' report, supporting the timeliness of the June 10, 2020 Application if considered.

Favours Applicant prevailed

This date established the start of the statute of limitations period for the cumulative trauma claim.

From the decision · page 13No evidence has been presented that applicant knew or should have known that she sustained a cumulative trauma injury while working at IHSS in advance of November 2018 when she spoke with her attorney. Applicant first suffered a compensable disability from the cumulative trauma injury in the report of June 18, 2019 when found temporary totally disabled by her PTP Dr. Morris. There is therefore no evidence presented that supports that applicant's claim filed December 20, 2018 should deemed filed more than year from the date of injury as outlined in California Labor Code § 5405 and 5412.

Dr. Scheel's comprehensive medical record review and evaluation provided substantial evidence supporting causation and disability related to IHSS employment.

Favours Applicant prevailed

This medical opinion was relied upon to support the claim's validity and timeliness.

From the decision · page 11On May 12, 2022, applicant was evaluated by PQME Dr. Carla Scheel in connection with her claimed injuries against IHSS. Dr. Scheel was provided with 1581 pages of records for review, including medical records dating back to 2012 and those as recent as November 8, 2021. (See Applicant's Exhibit 9 at pgs., 3, 7 and 36, EAMS Doc ID 76029048.) With respect to her industrial injuries, the record review demonstrates that applicant began treating in January 2016 in connection with her left wrist injury sustained at Alsco. (Id. at p. 20.) The review confirms that the first report discussing a possible cumulative trauma is the AME report from Dr. Mandel quoted above. Thereafter the next report discussing a cumulative trauma is the report from PTP Dr. Morris, likewise quoted above.

Dr. Scheel reviewed extensive medical records and opined with reasonable medical probability that the applicant's orthopedic diagnoses and resulting disability were in part caused by her employment with In-Home Supportive Services.

Dr. Scheel's opinion was based on a comprehensive review of 1581 pages of medical records and an evaluation of the applicant's employment history, providing substantial evidence supporting the claim.

From the decision · page 11On May 12, 2022, applicant was evaluated by PQME Dr. Carla Scheel in connection with her claimed injuries against IHSS. Dr. Scheel was provided with 1581 pages of records for review, including medical records dating back to 2012 and those as recent as November 8, 2021. (See Applicant's Exhibit 9 at pgs., 3, 7 and 36, EAMS Doc ID 76029048.) With respect to her industrial injuries, the record review demonstrates that applicant began treating in January 2016 in connection with her left wrist injury sustained at Alsco. (Id. at p. 20.) The review confirms that the first report discussing a possible cumulative trauma is the AME report from Dr. Mandel quoted above. Thereafter the next report discussing a cumulative trauma is the report from PTP Dr. Morris, likewise quoted above.

Dr. Morris opined that the applicant gradually began to experience pain in her neck, back, shoulders, and hands starting March 2016, consistent with a cumulative trauma injury.

Dr. Morris was the applicant's primary treating physician who first reported the cumulative trauma injury and temporary disability in June 2019, supporting the timing of the claim.

From the decision · page 11In fact, the first report addressing applicant's claimed cumulative trauma injury at IHSS is the report from her then PTP Dr. Jerry Morris dated June 18, 2019 at which time applicant reported that "she gradually began to experience pain in her neck, back, shoulders, and hands in March 2016." (See Applicant's Exhibit 5, EAMS Doc ID 76029352.) After examination and with no record review, Dr. Morris opined,

Dr. Mandel examined the applicant in May 2018 for a specific trauma claim against Alsco and mentioned the presence of a cumulative trauma injury but did not connect it to IHSS employment.

Dr. Mandel's report was considered but did not establish causation related to IHSS employment, providing limited support for the cumulative trauma claim timing.

From the decision · page 10Petitioner offered no medical evidence. Applicant however, offered several medical reports from applicant's treating physicians, a report from AME Dr. Mark Mandel, who served as the AME in applicant's specific trauma claim versus Alsco, and the report from PQME Dr. Carla Scheel, the PQME obtained in this cumulative trauma case against IHSS.

California Labor Code 5412

Date of injury for cumulative trauma is the concurrence of compensable disability and knowledge of industrial relationship under Labor Code 5412.

Applied to determine the statute of limitations start date for the cumulative trauma claim.

From the decision · page 12Determination 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).)

California Labor Code 5405

An application for adjudication of claim is not barred if timely filed within one year of the date of injury under Labor Code 5405.

Applied to assess timeliness of the applicant's claim filing.

From the decision · page 13No evidence has been presented that applicant knew or should have known that she sustained a cumulative trauma injury while working at IHSS in advance of November 2018 when she spoke with her attorney. Applicant first suffered a compensable disability from the cumulative trauma injury in the report of June 18, 2019 when found temporary totally disabled by her PTP Dr. Morris. There is therefore no evidence presented that supports that applicant's claim filed December 20, 2018 should deemed filed more than year from the date of injury as outlined in California Labor Code § 5405 and 5412.

Applicant's testimony about onset and worsening of symptoms while working for IHSS

From the decision · page 9Under questioning from petitioner, applicant testified at length regarding her job duties at IHSS, the on-set of her symptoms and the increase in her symptoms that she attributes to her work at IHSS. Applicant began her employment with IHSS in March 2016 after her employment with Alsco ended in January 2016. At no time did the applicant work for both Alsco and IHSS at the same time. At IHSS, applicant took care of elderly people which required her to lift wheelchairs and transfer people from wheelchairs to cars and from beds to wheelchairs. Applicant first noticed pain in her neck and bilateral shoulders a few months after she commenced her employment with IHSS which she attributes to the heavier work required of her.

Comprehensive medical record review by Dr. Scheel supporting causation

From the decision · page 11On May 12, 2022, applicant was evaluated by PQME Dr. Carla Scheel in connection with her claimed injuries against IHSS. Dr. Scheel was provided with 1581 pages of records for review, including medical records dating back to 2012 and those as recent as November 8, 2021. (See Applicant's Exhibit 9 at pgs., 3, 7 and 36, EAMS Doc ID 76029048.) With respect to her industrial injuries, the record review demonstrates that applicant began treating in January 2016 in connection with her left wrist injury sustained at Alsco. (Id. at p. 20.) The review confirms that the first report discussing a possible cumulative trauma is the AME report from Dr. Mandel quoted above. Thereafter the next report discussing a cumulative trauma is the report from PTP Dr. Morris, likewise quoted above.