Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5909
Petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board.
The Board acted on the petition within the 60-day period, making the petition timely.
From the decision · page 1I.
Preliminarily, we note that former Labor Code1 section 5909 provided that a petition for
reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days
from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended
to state in relevant part that:
(a) A petition for reconsideration is deemed to have been denied by the appeals
board unless it is acted upon within 60 days from the date a trial judge transmits a
case to the appeals board.
Labor Code section 5705
Burden of proof on party holding affirmative of issue; employee must prove injury arising out of employment by preponderance of evidence.
Applicant failed to prove industrial causation for claimed thumb injuries.
From the decision · page 2II.
In addition to the reasons given by the WCJ in the Report, we note that every party holding
the affirmative of an issue bears the burden of proof. (Lab. Code, § 5705.) The employee bears
the initial burden of proving injury arising out of and in the course of employment (AOE/COE) by
a preponderance of the evidence. (Lab. Code, § 5705; South Coast Framing v. Workers' Comp.
Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code,
Labor Code sections 3208 and 5401
Definition of injury requiring lost time beyond shift or medical treatment beyond first aid.
Applicant did not meet burden to establish industrial causation for thumb injuries, so no injury found.
From the decision · page 3We do not adopt or incorporate the section of the Report with the heading "3. Acceptance
of Both Thumbs:" on page six. An "injury" is defined as an "injury or disease arising out of the
employment" (Lab. Code, § 3208) which "results in lost time beyond the employee's work shift
at the time of injury or which results in medical treatment beyond first aid...." (Lab. Code, § 5401.) Therefore, had applicant met her burden of proof to establish industrial causation for her
thumbs, she would be entitled to a finding of industrial injury even if the symptoms had resolved
after receiving medical treatment. Evidence that the thumbs had been "cured" by that medical
treatment would go to the issue of disability. Nevertheless, we agree that applicant did not meet
her burden of proof to establish industrial causation for the claimed injury to her thumbs.
Labor Code section 5814
Penalties under Labor Code section 5814 subject to two-year statute of limitations.
No penalty imposed for alleged medical or PD payment delays due to lack of evidence or statute of limitations.
From the decision · page 6As for medical delays, applicant made no specific claims and provided no specific evidence
that her medical treatment was delayed. I have no evidence from the applicant of a specific treatment
that was delayed, and the proof of said delay is her burden of proof. I therefore have no bases to
impose a penalty on medical treatment. She did provide testimony that her surgery itself took a while
to perform. She testified about it initially being authorized around October 8, 2019 and not actually
being performed until September 9, 2021. (See MOH/SOE Part 2 of Trial, Pages 3-4, Lines 15-13).
However, no further specifics were given about this and there is no corroborating documentary
evidence of any such delay. The surgery was authorized by the defendant from the outset, so they
never took any action to delay the actual performance of the surgery. The COVID pandemic caused a
delay, so that already was not defendant's fault.