ADJ12320337 · April 18, 2024

The WCAB found the cumulative trauma injury period to be October 1, 2012 through May 28, 2019 for orthopedic injuries, but amended the psyche injury date to be the same as the orthopedic injury date based on medical opinion and evidence.

From the decision · page 1In the Findings and Award of October 11, 2021, the Workers' Compensation Administrative Law Judge ("WCJ") found that applicant, while employed by Johnny Was, LLC during the period October 1, 2012 through May 28, 2019, sustained a cumulative trauma injury arising out of and in the course of employment ("industrial injury") to her cervical spine, thoracic spine, lumbar spine, knees, shoulders, elbows and wrists, and that applicant, while employed by Johnny Was, LLC during the period May 28, 2018 through May 29, 2019, sustained an industrial cumulative trauma injury to her psyche.

Applicant sustained cumulative trauma injury to multiple body parts during October 1, 2012 through May 28, 2019.

Favours Applicant prevailed

This fact supports the WCJ's finding affirmed by the WCAB that the injury period is continuous and compensable.

From the decision · page 1In the Findings and Award of October 11, 2021, the Workers' Compensation Administrative Law Judge ("WCJ") found that applicant, while employed by Johnny Was, LLC during the period October 1, 2012 through May 28, 2019, sustained a cumulative trauma injury arising out of and in the course of employment ("industrial injury") to her cervical spine, thoracic spine, lumbar spine, knees, shoulders, elbows and wrists, and that applicant, while employed by Johnny Was, LLC during the period May 28, 2018 through May 29, 2019, sustained an industrial cumulative trauma injury to her psyche.

Applicant's psyche injury is not separate but arises from the orthopedic injury, with the same date of injury.

Favours Applicant prevailed

This fact led to the amendment of the psyche injury date to match the orthopedic injury date, affecting compensability and benefits.

From the decision · page 2Based on our review of the record and applicable law, we conclude the WCJ correctly found that applicant sustained an industrial cumulative trauma injury to her cervical spine, thoracic spine, lumbar spine, knees, shoulders, elbows and wrists during the period October 1, 2012 through May 28, 2019. Though the evidence also justifies the WCJ's finding that applicant sustained an industrial cumulative trauma injury to her psyche, we conclude that the date of the psyche injury is the same as the orthopedic injury, not May 28, 2018 through May 29, 2019 as found by the WCJ. As our Decision After Reconsideration, we will affirm the WCJ's decision in part and amend it in part, in accordance with the conclusions.

Applicant sustained industrial cumulative trauma injury to multiple body parts during October 1, 2012 through May 28, 2019.

Based on evaluation of facts, physical exams, observation, review of medical records and medical probability, correlating physical examination findings and diagnostic tests with cumulative trauma injury.

From the decision · page 3The patient is a 46-year-old female who sustained industrial injury as a result of cumulative trauma from October 1, 2012, to May 28, 2019, working as a Warehouse Worker for Johnny Was. The patient states that she developed pain to the right shoulder, elbow, neck, and lower back due to the work duties listed above. She continued working through pain. Eventually [she] sought care in the emergency department where she received an injection in February 2017. She reported the i was referred to the industrial clinic, where she received physical therapy, medications, MRI studies, neurodiagnostics, [and a] cortisone injection for the elbow. In December 2018, she was transferred to another physician who conducted another cortisone injection and then in May 2019, surgical intervention for the right elbow. She underwent postoperative physical therapy and returned to regular duty. She sought legal counsel [and] was referred to the current primary treating physician who conducted physical therapy, acupuncture treatments, updated MRI studies, neurodiagnostics, and [who] has referred the patient today for orthopedic evaluation.

Continued treatment and support for cumulative trauma injury to multiple body parts.

Applicant continued to see Dr. Haronian after surgery and reported ongoing pain in multiple body parts related to cumulative trauma injury.

From the decision · page 13She is still seeing Dr. Haronian. She started seeing him after Dr. Reisch. She does not know the exact day when she began to treat with Dr. Haronian. Dr. Haronian also said that the insurance was not authorizing treatment. She told Dr. Haronian what parts of body were bothering her. In January, most of the pain was in her right elbow and she had pain in her right shoulder, too. She was off work.

Applicant's permanent psychiatric disability is 100% due to her orthopedic cumulative trauma injury.

Medical opinion that psyche injury is not separate but arises from orthopedic injury, supported by no contrary evidence.

From the decision · page 6Qualified Medical Evaluator ("PQME") in psychiatry, who opined that "100% of the applicant's permanent psychiatric disability has occurred as a result of her orthopedic disability."4 (Exhibit

Orthopedic panel QME exam was scheduled but cancelled and report was not admitted as evidence.

The exam was cancelled and the report was not admitted, so it was not considered in the decision.

From the decision · page 7Finally, procedurally, there was a 1/15/2021 signed Joint Stipulation for issuance of an orthopedic panel (a LC Section 4060 psyche panel had already previously issued). At the MSC of 1/19/21, defendant objected to the matter being set for trial as the orthopedic panel QME exam had not yet gone forward. Judge Jackson, the MSC judge, set the matter for trial over defendant's objection. A panel in orthopedic surgery issued from the Medical Unit on 2/10/2021. An exam was scheduled with Stefan Kasimian, M.D. after the respective strikes from both parties were issued. However, the exam ultimately had to be cancelled due to Judge Walker at the 4/20/2021 trial denoting that such report would not be admissible as evidence. Defendant Travelers maintains that it was prejudiced by the orthopedic panel QME exam with Dr. Kasimian not going forward. Determinations regarding AOE/COE and the LC Section 5412 date of injury...were handed down without the benefit of a comprehensive report addressing causation. [...]

Labor Code sections 3208.1 and 5412

Labor Code section 3208.1 defines cumulative industrial injury and its date of injury determination under section 5412.

Applied to determine the date of injury and compensability of cumulative trauma injuries.

From the decision · page 5According to Labor Code section 3208.1, a cumulative industrial injury occurs whenever the repetitive physically traumatic (or repetitive mentally traumatic) activities of the employee's occupation cause any disability and/or a need for medical treatment. Section 3208.1 further provides that the date of a cumulative injury shall be determined under section 5412.

Applicant's trial testimony and medical reports of Dr. Daher and Dr. Haronian

From the decision · page 2In this case, we conclude that applicant's trial testimony, considered in conjunction with the medical reporting of Dr. Daher and Dr. Haronian, is sufficient to satisfy her burden of proof that she sustained industrial injury to her cervical spine, thoracic spine, lumbar spine, knees, shoulders, elbows and wrists during the period October 1, 2012 through May 28, 2019.