ADJ13355568 — California WCAB decision

What the panel ordered

Findings of Fact and Orders issued on January 14, 2022, rescinded; matter returned to trial level for further proceedings consistent with this decision.

Petition for reconsideration of the Findings of Fact and Orders issued by the WCJ on January 14, 2022, granted to allow further study of factual and legal issues.

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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.

Statute of limitationsRemandedlow back

The WCJ failed to determine the date of injury under section 5412 and when CIGA last paid benefits under section 5405(c), thus the claim's timeliness could not be properly assessed.

From the decision · page 5Here, the WCJ failed to determine the date of injury in accordance with section 5412 and failed to determine when CIGA last paid benefits under section 5405(c) for its administrated claim. Accordingly, upon return, the WCJ must determine not only when CIGA had knowledge of its right to file an Application, but must also determine when applicant first suffered temporary or permanent disability from the cumulative injury in order to raise a cognizable claim for CIGA's reimbursement of benefits. In addition, the WCJ must determine when CIGA last paid benefits on companion case number ADJ2881803, to determine the applicability of section 5405(c) in the

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.

QMERelied upon

Opined that approximately 33% of the impairment was due to the 1982 injury, with the remainder due to subsequent cumulative trauma at Safeway and dental jobs.

The opinion was used to assess the date of injury and causation relevant to the timeliness of the reimbursement claim.

From the decision · page 2With respect to the evidentiary record, Peter J. Mandell, M.D., who served as a Qualified Medical Evaluator (QME), wrote in his report dated October 19, 2016, that, as a result of her injury on June 14, 1982, she "developed symptomatic L5 on S1 spondylolysis and spondylolisthesis as well as some right-side lower extremity radiculopathy." (Def. Safeway Ex. A., p. 6.) Applicant continued working for Safeway for a few years in the office and, subsequently, as a produce clerk/checker. After that, she had concurrent employment as a dental assistant and, later, as a dental hygienist. (Ibid.)4 James Rhee, M.D., treated applicant for her low back pain for 10 years. (Id. at pp. 6-7.) With respect to causation, Dr. Mandell opined as follows:

secondary_treaterRelied upon

Treated applicant for low back pain for 10 years.

Treatment history was relevant to the ongoing disability and medical treatment issues.

From the decision · page 2With respect to the evidentiary record, Peter J. Mandell, M.D., who served as a Qualified Medical Evaluator (QME), wrote in his report dated October 19, 2016, that, as a result of her injury on June 14, 1982, she "developed symptomatic L5 on S1 spondylolysis and spondylolisthesis as well as some right-side lower extremity radiculopathy." (Def. Safeway Ex. A., p. 6.) Applicant continued working for Safeway for a few years in the office and, subsequently, as a produce clerk/checker. After that, she had concurrent employment as a dental assistant and, later, as a dental hygienist. (Ibid.)4 James Rhee, M.D., treated applicant for her low back pain for 10 years. (Id. at pp. 6-7.) With respect to causation, Dr. Mandell opined as follows:

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 5412

Date of injury in cumulative injury cases is when employee first suffered disability and knew or should have known it was caused by employment (Lab. Code, 5412).

The WCJ must determine the date of injury under section 5412 to assess timeliness of claim.

From the decision · page 4Pursuant to section 3208.1: An injury may be either: (a) `specific' occurring as the result of one incident or exposure which causes disability or need for medical treatment; or (b) `cumulative' occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment. The date of a cumulative trauma injury shall be the date determined under []5412. (Lab. Code, § 3208.1.) In addition, pursuant to section 5412: The date of injury in cases of occupational disease or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment. (Lab. Code, § 5412.) "Disability," as used in section 5412, is evidence that there is either "compensable

Plotnick v. Workers' Comp. Appeals Bd. (1970) 1 Cal. 3d 622

Medical treatment for earlier injury overlapping with subsequent injury may toll statute of limitations under section 5405(c) (Plotnick v. Workers' Comp. Appeals Bd.).

The WCJ must determine when CIGA last paid benefits to apply section 5405(c) tolling.

From the decision · page 5Finally, in De Lay v. CIGA (2019) 84 Cal.Comp.Cases 934, the Appeals Board rescinded the WCJ's decision that section 5405 barred CIGA's petition for reimbursement for a subsequent injury against a permissibly self-insured employer for benefits paid by CIGA up through the date of trial. The Appeals Board relied on the California Supreme Court case of Plotnick v. Workers' Comp. Appeals Bd. (1970) 1 Cal. 3d 622, 623-626 [35 Cal.Comp. Cases 13]), holding that medical treatment provided by an employer for an earlier injury that also overlaps with treatment for a subsequent injury may toll the statute of limitations for the subsequent injury under section 5405(c). In Plotnick, the injured worker sustained successive injuries to the same body part. (Id. at pp. 623-624.) The Supreme Court found that "[i]t follows inevitably" that any medical treatment received from the employer for a previous injury "must to some extent have been designed to relieve [the injured employee] from the effects" of the subsequent injury, even when the treatment "may also had as their purpose to relieve petitioner from the effects of the original injury." (Id. at pp. 625-626.) The Supreme Court therefore held that filing of the claim was timely within the one year of the provision of medical treatment pursuant to section 5405(c). (Id.)

ADJ13355568 · May 8, 2026

What the panel ordered

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The facts that decided it

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