ADJ13906646 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied; WCJ decision affirmed that applicant did not prove industrial injury

Petition for Reconsideration of the WCJ Findings and Order of June 29, 2021, denied

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.

AOE/COEDefendant prevailedleft foot

Applicant's testimony was found not credible and he did not carry his burden of proof to establish industrial injury. No presumption of compensability arose because no claim form was filed.

From the decision · page 1Applicant seeks reconsideration of a workers' compensation administrative law judge (WCJ) Findings and Order of June 29, 2021, wherein it was found that "applicant did not meet his burden to prove injury arising out of and occurring in the course of employment to his left foot." The WCJ thus issued an Order that applicant take nothing by way of his workers' compensation claim.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

The rules the panel named

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

LaTourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal.App.4th 644

Applicant has burden to prove reasonable probability of industrial causation

Applicant's testimony was found not credible, so burden was not met

From the decision · page 2"The applicant for workers' compensation benefits has the burden of establishing the `reasonable probability of industrial causation'" (LaTourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal.App.4th 644, 650 [63 Cal.Comp.Cases 253] citing McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413 [33 Cal.Comp.Cases 660]; Lab. Code, § 3202.5, 5705.) Here, since his testimony was found not credible, applicant neither set forth a prima facie case, nor carried his ultimate burden of proof.

Honeywell v. Workers' Comp. Appeals Bd. (Wagner) (2005) 35 Cal.4th 24

Presumption of compensability under Labor Code section 5402(b) arises only if claim form filed and liability not rejected within 90 days

No claim form was filed, so presumption did not arise

From the decision · page 3rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division. The presumption of this subdivision is rebuttable only by evidence discovered subsequent to the 90-day period." In Honeywell v. Workers' Comp. Appeals Bd. (Wagner) (2005) 35 Cal.4th 24 [70 Cal.Comp.Cases 97], the California Supreme Court expressly held that, except where estoppel has been established, the 90-day period to accept or deny liability runs from the date that an injured worker filed an actual claim form, not when applicant reported his or her injury, or when the employer otherwise gained knowledge of injury. "`A presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action.' ( Evid. Code, § 600, subd. (a), italics added; State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1995) 37 Cal. App. 4th 675, 682 [60 Cal.Comp.Cases 717].) As correctly articulated in Davis [v. Interim Healthcare (2000) 65 Cal.Comp.Cases 1039, 1043 (Appeals Bd. en banc)], `a presumption becomes operative at trial when the basic facts giving rise to the presumption are established by the pleadings, by stipulation, by judicial notice, or by evidence.'" (Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418, 1425 [67 Cal.Comp.Cases 236].)

ADJ13906646 · September 21, 2021

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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The rules the panel named

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