The WCAB granted the petition for reconsideration, rescinded the Amended Findings & Order issued on November 27, 2023, and returned the matter to the Presiding WCJ for reassignment to a new WCJ for further proceedings.
Issues decided
1
Medical opinions weighed
1
Authorities named
2
District office
Los Angeles
What the panel ordered
The WCAB granted the petition for reconsideration, rescinded the Amended Findings & Order issued on November 27, 2023, and returned the matter to the Presiding WCJ for reassignment to a new WCJ for further proceedings.
Applicant seeks reconsideration of the Amended Finding & Order issued by the WCJ on November 27, 2023, which found injury presumptions and rebuttals; the WCJ recommended denial of the petition for reconsideration; the WCAB granted reconsideration, rescinded the WCJ decision, and returned the matter for reassignment to a new WCJ for further proceedings.
The WCAB found the WCJ's order on presumption of injury was a final order and that defendant failed to timely seek review, thus the WCJ decision was rescinded and the matter was returned for reassignment for further proceedings.
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ADJ9958896 — California WCAB decision · SimilarCase
From the decision · page 1
Applicant seeks reconsideration of the Amended Finding & Order (F&O) issued by a
workers' compensation administrative law judge (WCJ) on November 27, 2023. The WCJ found
in relevant part that while employed by defendant from July 12, 2014 to July 12, 2015
(Case # ADJ9958896) and on April 12, 2014 (Case # ADJ10920695), applicant "was presumed to
have sustained injury" arising out of and occurring in the course of employment (AOE/COE) to
his arms, elbow, wrists, shoulders, knees, neck, hips, low back, spine, psyche, sexual dysfunction,
sleep disorder, internal, and diabetes; that "the Presumption of injury to arms, elbow, wrists,
shoulders, knees, neck, hips, low back, spine is rebutted by the reporting of Dr. Santaniello"; and
that "the record requires further development regarding the issue of presumed disability regarding
sexual dysfunction, sleep disorder, internal complaints and diabetes."
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The WCJ found the presumption of injury to multiple body parts was rebutted by Dr. Santaniello's report.
Favours Defendant prevailed
This finding was central to the WCJ's decision which was later rescinded on reconsideration.
From the decision · page 1Applicant seeks reconsideration of the Amended Finding & Order (F&O) issued by a
workers' compensation administrative law judge (WCJ) on November 27, 2023. The WCJ found
in relevant part that while employed by defendant from July 12, 2014 to July 12, 2015
(Case # ADJ9958896) and on April 12, 2014 (Case # ADJ10920695), applicant "was presumed to
have sustained injury" arising out of and occurring in the course of employment (AOE/COE) to
his arms, elbow, wrists, shoulders, knees, neck, hips, low back, spine, psyche, sexual dysfunction,
sleep disorder, internal, and diabetes; that "the Presumption of injury to arms, elbow, wrists,
shoulders, knees, neck, hips, low back, spine is rebutted by the reporting of Dr. Santaniello"; and
that "the record requires further development regarding the issue of presumed disability regarding
sexual dysfunction, sleep disorder, internal complaints and diabetes."
The WCJ's February 16, 2022 order finding presumption of injury was a final order and defendant did not seek review timely.
Favours Applicant prevailed
This procedural fact led to the WCAB granting reconsideration and rescinding the WCJ decision.
From the decision · page 4Here, defendant did not seek review of the final order that found a presumption of injury
to the listed body parts in applicant's cumulative injury case. That means that once the period
expired to seek review, the findings of injury were final, and defendant was obligated to provide
the benefits owed at that time. The very purpose of section 5402(b), prompt delivery of benefits,
would be thwarted if a defendant could indefinitely delay on its burden to rebut, or if a defendant
was able to stop providing benefits at some later date after providing them when a presumption
was found. This does not mean that defendant cannot muster evidence to challenge injury to a
particular body part or to the extent of disability due to the injury, but defendant cannot dispute
AOE/COE in applicant's cumulative injury claim.
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
Dr. Santaniello's report rebutted the presumption of injury to arms, elbow, wrists, shoulders, knees, neck, hips, low back, and spine.
The WCJ found the presumption of injury to these body parts was rebutted by Dr. Santaniello's report.
From the decision · page 1Applicant seeks reconsideration of the Amended Finding & Order (F&O) issued by a
workers' compensation administrative law judge (WCJ) on November 27, 2023. The WCJ found
in relevant part that while employed by defendant from July 12, 2014 to July 12, 2015
(Case # ADJ9958896) and on April 12, 2014 (Case # ADJ10920695), applicant "was presumed to
have sustained injury" arising out of and occurring in the course of employment (AOE/COE) to
his arms, elbow, wrists, shoulders, knees, neck, hips, low back, spine, psyche, sexual dysfunction,
sleep disorder, internal, and diabetes; that "the Presumption of injury to arms, elbow, wrists,
shoulders, knees, neck, hips, low back, spine is rebutted by the reporting of Dr. Santaniello"; and
that "the record requires further development regarding the issue of presumed disability regarding
sexual dysfunction, sleep disorder, internal complaints and diabetes."
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5402
Labor Code section 5402 presumption of injury and its rebuttable nature after 90 days
The presumption applies if liability is not rejected within 90 days after claim filing; rebuttable only by evidence discovered after 90 days.
From the decision · page 2DISCUSSION
Section 5402(b)(1) states that:
If liability is not rejected 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.
Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068
Final order definition and consequences for reconsideration timeliness
A final order settles a critical issue for benefits and failure to timely petition bars later challenge.
From the decision · page 3A "final" order has been defined as one that either "determines any substantive right or
liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180;
Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-
535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd.
(Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661]) or determines a "threshold"
issue that is fundamental to the claim for benefits. (Maranian v. Workers' Comp. Appeals Bd.
(2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650].) Interlocutory procedural or
evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not
considered "final" orders. (Id. at p. 1075 ["interim orders, which do not decide a threshold issue,
such as intermediate procedural or evidentiary decisions, are not `final' "]; Rymer, supra, at p.
1180 ["[t]he term [`final'] does not include intermediate procedural orders or discovery orders"];
Kramer, supra, at p. 45 ["[t]he term [`final'] does not include intermediate procedural orders"].)
Such interlocutory decisions include, but are not limited to, pre-trial orders regarding evidence,
discovery, trial setting, venue, or similar issues.
What proof carried it
The evidence the panel weighed, by kind.
Medical recordsfavours Defendant prevailed
The WCJ found the presumption of injury to arms, elbow, wrists, shoulders, knees, neck, hips, low back, spine was rebutted by Dr. Santaniello's report.
From the decision · page 1Applicant seeks reconsideration of the Amended Finding & Order (F&O) issued by a
workers' compensation administrative law judge (WCJ) on November 27, 2023. The WCJ found
in relevant part that while employed by defendant from July 12, 2014 to July 12, 2015
(Case # ADJ9958896) and on April 12, 2014 (Case # ADJ10920695), applicant "was presumed to
have sustained injury" arising out of and occurring in the course of employment (AOE/COE) to
his arms, elbow, wrists, shoulders, knees, neck, hips, low back, spine, psyche, sexual dysfunction,
sleep disorder, internal, and diabetes; that "the Presumption of injury to arms, elbow, wrists,
shoulders, knees, neck, hips, low back, spine is rebutted by the reporting of Dr. Santaniello"; and
that "the record requires further development regarding the issue of presumed disability regarding
sexual dysfunction, sleep disorder, internal complaints and diabetes."
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