Opinion
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MARVIN MAYEN CORDOVA, Applicant v. TIKAL, INC.; TRUCK INSURANCE EXCHANGE, Defendants Nos. ADJ10380421, ADJ11084222 Workers' Compensation Appeals Board State of California February 29, 2024OPINION AND DECISION AFTER RECONSIDERATION
KATHERINE A. ZALEWSKI, CHAIR.
We previously granted reconsideration in this matter to provide an opportunity to further study the legal and factual issues raised by the Petition for Reconsideration. Having completed our review, we now issue our Decision After Reconsideration.
Commissioners Lowe and Sweeney, who were previously members of this panel when it granted reconsideration, no longer serve on the Workers' Compensation Appeals Board. Other panelists have been assigned in their place.
Applicant seeks reconsideration of the February 10, 2020 Findings and Orders (F&O), wherein the workers' compensation administrative law judge (WCJ) found that applicant, while employed as a supervisor from February 1, 2015 to February 1, 2016, claimed to have sustained industrial injury to his low back. The WCJ found that the date of injury pursuant to Labor Codesection 5412 was January 29, 2016, and that compensation was barred pursuant to section 5405.
All further references are to the Labor Code unless otherwise noted.
Applicant contends that the date of injury was July 28, 2017. In the alternative, applicant avers the running of the statute of limitations was tolled by the employer's failure to provide applicant with a claim form.
We have received an Answer from defendant. Neither the WCJ nor the PWCJ has filed a Report and Recommendation on Petition for Reconsideration (Report).
We have considered the Petition for Reconsideration and the Answer, and we have reviewed the record in this matter. For the reasons discussed below, we will rescind the F&O and substitute new Findings of Fact finding that applicant's claim is not barred by the statute of
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limitations of section 5405, and deferring issues of injury arising out of and in the course of employment and the date of injury.
FACTS
Applicant has filed two cumulative injury claims. On April 19, 2016, applicant filed an Application for Adjudication of Claim (Case No. ADJ10380421l), alleging injury to the back, legs, abdomen, excretory and unspecified systems while employed by defendant from May 1, 2012 to May 1, 2013. The parties obtained reporting from Qualified Medical Evaluator (QME) James B. Shaw, M.D., who issued multiple reports in 2016 and 2017. Dr. Shaw's report of May 30, 2017 noted that applicant sought unremarkable medical treatment between 2013 and 2016, but that a review of the submitted medical records did not reflect complaints of chronic back pain during this interval. (Ex. 102, Report of James Shaw, M.D., dated May 30, 2017, at p. 3.) Dr. Shaw's report of July 28, 2017 reviewed additional submitted medical records and noted that applicant had previously reported to the emergency department of Highland Hospital in 2016 that he was injured while working at home. The QME concluded there was no "probative or credible evidence the patient sustained CT 5/1/13." (Ex. 101, Report of James Shaw, M.D., dated July 28, 2017, at p. 1.)
On November 3, 2017, applicant filed an Application for Adjudication of Claim (Case No. ADJ11084222), alleging injury to the back, neck and shoulders while employed by defendant from February 1, 2015 to February 1, 2016.
On November 13, 2017, the parties proceeded to trial with respect to applicant's claim of cumulative injury through May 1, 2013. However, on the day of trial, applicant voluntarily dismissed his claim of cumulative injury through May 1, 2013 without prejudice. (November 13, 2017 Stipulation and Order.)
The parties thereafter obtained medical-legal reporting responsive to applicant's claimed cumulative injury ending February 1, 2016, from QME Dennis Sosine, D.C.
On July 30, 2018, Dr. Sosine issued a report, noting a history provided by applicant of an unknown injury in 2013 when applicant fell down 3-4 steps, and was off work for one week. (Ex. 1, Report of Dennis Sosine, D.C., dated July 30, 2018, at p. 3.) The applicant reported his symptoms never went away but worsened to the point where applicant sought medical treatment from the Emergency Department at Highland Hospital on February 1, 2016. Applicant reported that on February 17, 2016, he was evaluated by Atul Patel, M.D., who recommended emergency
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surgery. (Id. at p. 4.) On February 25, 2016, applicant underwent bilateral laminectomy with removal of disc fragments at L5. (Ibid.) Based on his clinical evaluation, a review of the medical record, and applicant's history of the injury, Dr. Sosine concluded "[applicant] did suffer injuries as a result of his employment for Tikal, Inc." (Id. at p. 12.) The report does not specify when the injury occurred, or whether applicant sustained a specific or cumulative injury.
On November 13, 2018, the parties proceeded to trial and framed issues including whether compensation was barred by section 5405, and whether the defendant's failure to provide a claim form tolled the running of the statute of limitations. The parties submitted the matter for decision on November 30, 2018 without testimony.
On February 25, 2019, the WCJ issued Findings and Orders, deferring the issues of the running of the statute of limitations and related estoppel issues, and ordering development of the record.
On November 12, 2019, the parties again proceeded to trial, framing issues of injury AOE/COE, future medical care, and a period of temporary disability. The parties further framed issues relevant to the statute of limitations of section 5405, and related issues of estoppel. Following the testimony of applicant and two witnesses, the parties submitted the matter for decision.
On February 10, 2020, the WCJ issued his F&O, finding in relevant part that applicant's date of injury as defined in section 5412 was either January 30, 2016 or February 1, 2016, and that both dates were more than one year removed from the filing of the application on November 3, 2017. Because applicant commenced proceedings for the collection of benefits more than one year after the date of injury, the WCJ found that compensation was barred by the statute of limitations of section 5405.
Applicant's Petition avers he is not a medical expert and should not be expected to make a determination with regard to industrial causation. (Petition, at p. 3:19.) Applicant asserts that the report of former QME Dr. Shaw, issued on July 28, 2017, was the first time applicant knew or should have known that his disability was caused by employment. (Id. at p. 3:6.) Applicant further contends that defendant's failure to provide a claim form tolled the running of the statute of limitations of section 5405. (Id. at p. 4:14.)
Defendant's Answer observes that applicant was represented with respect to the prior claim of cumulative injury ending in 2013 at the time he filed the subsequent application claiming
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cumulative injury ending in 2016. Defendant thus avers the knowledge of applicant's counsel should be imputed to applicant for the purposes of the application of the statute of limitations. (Answer, at 4:3.) Defendant further asserts that applicant filed the application claiming cumulative injury ending in 2016 in an attempt to circumvent the voluntary dismissal of applicant's prior claim. Defendant further contends that applicant's trial testimony does not establish actual notice to the employer of an injury that would require the employer to tender a claim form. (Id. at p. 6:9.)
DISCUSSION
The WCJ found that compensation for applicant's claim of cumulative injury ending February 1, 2016 is barred by section 5405, which limits the time in which an employee may commence proceedings for the collection of California workers' compensation benefits. Section 5405 provides:
The period within which proceedings may be commenced for the collection of the benefits provided by Article 2 (commencing with Section 4600) or Article 3 (commencing with Section 4650), or both, of Chapter 2 of Part 2 is one year from any of the following:
(a) The date of injury.
(b) The expiration of any period covered by payment under Article 3 (commencing with Section 4650) of Chapter 2 of Part 2.
(c) The last date on which any benefits provided for in Article 2 (commencing with Section 4600) of Chapter 2 of Part 2 were furnished.
Thus, an applicant must commence proceedings with the WCAB within one year of (1) the date of injury or (2) the expiration of the period covered by the employer's last payment of disability indemnity or (3) the date of the last furnishing by the employer of medical, surgical or hospital treatment. (J.T. Thorp, Inc. v. Workers' Comp. Appeals Bd. (Butler) (1984) 153 Cal.App.3d 327 [49 Cal.Comp.Cases 224, 229] (Butler).)
In cases involving an alleged cumulative trauma injury, the date of injury is governed by Labor Code section 5412, which holds:
The date of injury in cases of occupational diseases 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.
The court of appeal has defined "disability" per section 5412 as "either compensable temporary disability or permanent disability," noting that "medical treatment alone is not
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disability, but it may be evidence of compensable permanent disability, as may a need for splints and modified work. These are questions for the trier of fact to determine and may require expert medical opinion." (State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998, 1005 [59 Cal.Comp.Cases 579] (Rodarte).)
With respect to the "knowledge" component of section 5412, whether an employee knew or should have known his disability was industrially caused is a question of fact. (City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal.App.3d 467, 471 [50 Cal.Comp.Cases 53].) The burden of proving that the employee knew or should have known rests with the employer. This burden is not sustained merely by a showing that the employee knew he had some symptoms. (Id. at p. 471.) This is because "the medical cause of an ailment is usually a scientific question, requiring a judgment based upon scientific knowledge and inaccessible to the unguided rudimentary capacities of lay arbiters." (Peter Kiewit Sons v. Industrial Acci. Com. (McLaughlin) (1965) 234 Cal.App.2d 831, 839 [30 Cal.Comp.Cases 188].)
Here, applicant filed an Application for Adjudication claiming cumulative injury from May 1, 2012 to May 1, 2013. QME Dr. Shaw issued multiple reports, culminating in a July 28, 2017 report in which the doctor concluded that applicant had not sustained any injury, specific or cumulative. (Ex. 101, Report of James Shaw, M.D., dated July 28, 2017, at p. 1.) As is noted by the WCJ, the record does not divulge why applicant alleged injury only through 2013, or why there was neither claim amendment nor follow-up with Dr. Shaw regarding applicant's employment activities between 2013 and 2016.
Pursuant to Workers' Compensation Appeals Board (WCAB) Rule 10517 (Cal. Code Regs., tit. 8, § 10517), pleadings shall be deemed amended to conform to the stipulations and statement of issues agreed to by the parties on the record. In addition, pleadings may be amended by the Workers' Compensation Appeals Board to conform to proof. While this issue is not before us, it could be argued that the original claim of injury could have been amended to conform to proof so as to reflect the last day of hazardous exposure based on the medical evidence.
On November 3, 2017, however, applicant filed a new cumulative injury through February 1, 2016 and the parties selected Dr. Sosine as the QME. The initial report from Dr. Sosine issued on July 30, 2018 and opined that applicant sustained "injuries as a result of his employment for Tikal, Inc." (Ex. 1, Report of Dennis M. Sosine, D.C., dated July 30, 2018, at p. 12.) It is not clear what injury or injuries the QME was referring to. A supplemental report of June 15, 2019 issued without a review of additional medical records or an examination of the applicant, and identified three separate injuries: a specific injury of May 1, 2013, an unspecified cumulative
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injury occurring thereafter, and a specific injury on February 1, 2016. (Ex. 103, Report of Dennis Sosine, D.C., dated June 15, 2019, at p. 3.) The report does not address in detail the alleged cumulative injury ending in 2016, its relation to applicant's job duties, or a mechanism of injury other than mentioning the applicant's observation that his condition was slowly worsening. (Ibid.) The record thus reflects a series of divergent medical opinions, with Dr. Shaw opining in July, 2017 that applicant had not sustained an injury of any nature, including the claimed cumulative injury ending in 2013. Following applicant's claim of cumulative injury ending in 2016, Dr. Sosine opined that applicant had sustained two specific injuries and one indeterminate cumulative injury. However, the June 15, 2019 reporting of Dr. Sosine failed to substantively address the sole cumulative injury actually claimed by applicant. Amidst these conflicting opinions as to the nature and number of injuries sustained, we must determine when applicant knew, or through the exercise of reasonable diligence should have known, that he had sustained an injury resulting in disability, and that the disability was caused by applicant's employment.
Generally, knowledge of the existence of a disability and its industrial etiology is established through medical advice. In Pacific Indem. Co. v. Industrial Acc. Com. (Rotondo) (1950) 34 Cal.2d 726 [34 Cal. 2d 726], applicant flight instructor felt his symptoms of tuberculosis were industrial as early as 1942 but received no medical advice of an industrial relationship. The applicant further inquired of his employer whether his symptoms might be industrial, but the employer advised the symptoms were not. Applicant obtained medical treatment and took several months off work. Following his return to work, applicant later began to experience the recurrence of symptoms. In 1944, applicant was advised by a physician that his tubercular condition had been reactivated by his work activities. (Id. at p. 727.) Applicant filed a claim for benefits in 1945 and was awarded benefits. Defendant appealed the award, averring applicant's date of injury was as early as 1942, and that compensation was barred by section 5405. The California Supreme Court observed, however, that applicant's undisputed testimony established he was unaware that he had a compensable condition until receiving explicit medical advice in 1944. With respect to the question of whether applicant should have known prior to that date, the court observed that no physician had advised applicant against flying prior to 1944, and that the Industrial Accident Commission (IAC) was therefore justified in finding that defendant had not sustained the burden of proving applicant's claim was barred by the statute of limitation. (Id. at p. 730.)
The Industrial Accident Commission was the predecessor to the Workers' Compensation Appeals Board (WCAB).
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Similarly, in Price v. Workers' Comp. Appeals Bd. (2007) 72 Cal.Comp.Cases 1687 [2007 Cal. Wrk. Comp. LEXIS 388] (writ den.), the Appeals Board held that the applicant's receipt of reporting from the Agreed Medical Evaluator (AME) describing her injury and its industrial relationship was sufficient to constitute knowledge and to trigger the running of the statute of limitations of section 5405. (cf. Hughes Aircraft Company v. Workers' Comp. Appeals Bd. (Zimmerman) (1993) 58 Cal.Comp.Cases 220 [1993 Cal. Wrk. Comp. LEXIS 2853] (writ den.) [general medical advice that work stress was depleting applicant's immune system insufficient to confer knowledge for purposes of section 5412].)
Panel decisions are not binding precedent (as are en banc decisions) on all Appeals Board panels and workers' compensation judges. (See Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418, 1425 fn. 6 [67 Cal.Comp.Cases 236].) A California Compensation Cases digest of a "writ denied" case is also not binding precedent. (MacDonald v. Western Asbestos Co. (1982) 47 Cal.Comp.Cases 365, 366 [Appeals Bd. en banc].) While not binding, the WCAB may consider panel decisions to the extent that it finds their reasoning persuasive. (See Guitron v. Santa Fe Extruders (2011) 76 Cal.Comp.Cases 228, fn. 7 (Appeals Bd. en banc).)
The Court of Appeal further articulated the requirements of knowledge under section 5412 in City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal.App.3d 467, 471 [50 Cal.Comp.Cases 53] (Johnson). Therein, applicant, a long-term employee of the City of Fresno, experienced chest pain on December 21, 1980, and was subsequently hospitalized with a myocardial infarction. (Johnson, supra, at p. 469.) Applicant entertained the belief that his condition was work-related in early 1981, but a medical examination conducted in June, 1981 concluded that applicant's heart problems were nonindustrial. In July, 1981, the City provided applicant with the requisite notices regarding his workers' compensation rights. However, applicant did not file his claim for workers' compensation benefits until July 9, 1982. The WCJ found applicant's claim was not barred by the statute of limitations, and the WCAB affirmed. Following defendant's Petition for Writ of Review, the Fifth District Court of Appeal began its analysis by observing that, "[w]hether an employee knew or should have known his disability was industrially caused is a question of fact." (Id. at p. 471.) The court pointed out that "[a]n employee clearly may be held to be aware that his or her disability was caused by the employment when so advised by a physician," but that "in some cumulative injury cases a medical opinion that the applicant's disability is work related is not necessary to support a finding that an applicant, in the exercise of reasonable diligence, should have known of that relationship." (Id. at pp. 472-473.) Synthesizing these principles, the Johnson court concluded that, "applicant will not be charged with knowledge that his disability is job related without medical advice to that effect unless the
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nature of the disability and applicant's training, intelligence and qualifications are such that applicant should have recognized the relationship between the known adverse factors involved in his employment and his disability." (Id. at p. 473.) Accordingly, and notwithstanding his suspicions of work-relatedness, Johnson was not charged with knowledge that his condition was work related until he received medical advice. (Ibid.)
Shortly thereafter, the Fourth District Court of Appeal articulated a more restrictive analysis in Nielsen v. Workers' Comp. Appeals Bd. (1985) 164 Cal.App.3d 918 [50 Cal.Comp.Cases 104] (Nielsen). Therein, applicant was employed as a welder and regularly performed heavy lifting as part of his job duties, which caused neither pain nor discomfort. However, in the final three weeks of his employment, applicant was assigned to assembling and disassembling bottle racks, which caused the immediate onset of radiating pain in applicant's low back and leg. (Id. at p. 924.) The applicant informed his foreman of the pain while still working and consulted a Dr. Nery on his last day worked. When asked by Dr. Nery, applicant related the causation of his injury to either his work activities, or an incident of "kick-fighting" with a friend several weeks earlier. At trial, "[a]pplicant testified emphatically he thought from the very first day he was off work that his condition was caused by the work assembling and disassembling the bottle racks ...." (Id. at p. 927.) The Court of Appeal held that "[w]ithout more, applicant's emphatic testimony he thought from the very first day he was off work that his condition was caused by the work assembling and disassembling the bottle racks and his suggesting to Dr. Nery, the first physician he consulted, that his condition might have been caused by lifting and bending on his job would be sufficient to support the determination of both the WCJ and the Board that he knew or reasonably should have known as of that date that his disability was caused by the employment (Id. at p. 927). Nielsen also addressed applicant's contention that medical advice was necessary to support "legal knowledge" for purposes of §5412, as was the holding in Johnson, supra. The Nielsen court reviewed the holding in Johnson and concluded that "the absence of a medical opinion confirming industrial causation is but one important circumstance which is to be considered together with the other circumstances in determining in a particular case whether the applicant should reasonably have known his or her injury was industrially caused." (Id. at p. 930).
Both Johnson and Nielsen are of an accord, however, with respect to the primacy of medical advice confirming industrial causation of a claimed disability. "There is no real disagreement that medical advice to an applicant for workers' compensation benefits that his
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disability was caused by his employment is sufficient to trigger the statute of limitations." (Johnson, supra, 163 Cal.App.3d 467.)
Here, applicant received medical advice in the form of the July 28, 2017 medical report of Dr. Shaw that affirmatively denied the existence of any relationship between applicant's disability and work exposures. In much the same way that medical advice establishing that disability is industrial is sufficient to trigger a date of injury under section 5412, medical advice negating such a relationship would similarly negate a finding of a section 5412 date of injury. It was for this reason that the Court of Appeal in Nielsen wrote:
However, in both his petition for reconsideration and in his petition for review in this court applicant has asserted that until he consulted Dr. Lay and a CAT scan was performed, all the doctors by whom he was examined informed him that his injury was nonindustrial. It is then implied, although the applicant did not so testify, that the failure to file a claim for workers' compensation benefits within one year after October 8, 1981, resulted from applicant's reliance on the statement that his condition was nonindustrial, allegedly made by the physicians who examined him before he saw Dr. Lay. Were those the facts the Board would no doubt have determined the statute of limitations had not run and we would have affirmed that determination.
(Nielsen, supra, 164 Cal.App.3d 918, 927-928, italics added.)
Similarly, in Chambers v. Workmens' Comp. Appeals Bd. (1968) 69 Cal.2d 556 [33 Cal.Comp.Cases 722], an employee suffering from emphysema was advised by his physician that he could no longer work, and that his emphysema was unrelated to applicant's employment. The California Supreme Court held that applicant's claim, filed some years later when the applicant read in a newspaper that his condition might be industrial, was timely filed. Despite applicant's suspicion that his condition was work-related, "[t]here is no evidence in the record that [applicant] had any indication before December 1966 that emphysema could have been caused by the conditions under which he worked and therefore no rational basis existed upon which he should have concluded that his disability was connected with his employment." (Id. at pp. 560-561.) The court's decision in Chambers declined to apply the statute of limitations to a claim where applicant was given medical advice disproving the relationship between work exposures and disability. Thus, the affirmative denial of a link between industrial exposure and the development of subsequent disability deprives the injured worker of the knowledge necessary to trigger a date of injury under section 5412 and the running of the statute of limitations under section 5405.
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Nor are we persuaded that applicant's training, background or experience would lend itself to the lay attribution of applicant's low back injury to industrial cumulative trauma. There is no indication that applicant, a countertop installer and supervisor, received any special training or had a background that would have allowed him to appreciate the nature of a cumulative injury resulting in injury, or that such an injury was caused by work, especially when superimposed on the conflicting medical advice dispensed by Drs. Shaw and Sosine.
Following our review of the record occasioned by applicant's petition, we are persuaded that as late as July 28, 2017, the date of the final report from Dr. Shaw, applicant did not possess the requisite knowledge that he had a cumulative injury resulting in disability, caused by his work activities, sufficient to establish a date of injury pursuant to section 5412. Rather, the medical advice received by the applicant as of that date affirmatively disproved any relationship between his work activities and his claimed disability. Additionally, the medical advice provided by Dr. Shaw would have vitiated any imputed knowledge gleaned from other sources or from the applicant's own suspicions that his condition might be industrial.
Although our decision regarding the section 5412 date of injury obviates further analysis of whether the running of the statute of limitations of section 5405 was tolled, we observe that "knowledge is not imputed where actual knowledge is required." (California Ins. Guarantee Assn. v. Workers' Comp. Appeals Bd. (Carls) (2008) 163 Cal.App.4th 853 [73 Cal.Comp.Cases 771] [retention of counsel for unrelated claim insufficient to impart actual knowledge of a right to file a claim].) Thus, any knowledge of rights imputed to applicant because of his representation by counsel in 2016, standing alone, was insufficient to provide applicant with the actual notice required for the running of the statute of limitations.
Accordingly, defendant has not met its burden of proving that the employee knew or should have known his disability was caused by his employment. (Johnson, supra, 163 Cal.App.3d at p. 471.) We will therefore rescind the F&O and substitute new findings deferring the issue of the date of injury per section 5412. Moreover, given our conclusion that applicant did not possess the knowledge required under section 5412 prior to July 28, 2017, and because applicant commenced proceedings for the collection of benefits less than one year later on November 3, 2017, we will find that compensation is not barred by section 5405. Because the underlying decision did not reach the issue of injury arising out of and in the course of employment, we will defer the issue. Finally, given that no party has challenged the WCJ's determinations regarding the claimed specific dates of injury, we will find that applicant did not sustain a specific injury to his low back on January 30, 2016 or on February 1, 2016.
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For the foregoing reasons,
IT IS ORDERED, as the Decision After Reconsideration of the Workers' Compensation Appeals Board, that the Findings and Orders dated February 10, 2020 is hereby RESCINDED, and the following SUBSTITUTED therefor:
FINDINGS OF FACT
1. Applicant, Marvin Mayen Cordova, born [], while employed during the period February 1, 2015 through February 1, 2016, as a supervisor by Tikal, Inc., claims to have sustained a cumulative injury arising out of and in the course of his employment to his low back.
2. At the time of the alleged injury, the employer's workers' compensation carrier was Truck Insurance Exchange, which is self-administered.
3. The issue of the date of injury pursuant to section 5412 is deferred.
4. The issue of injury arising out of and in the course of employment is deferred.
5. Compensation herein is not barred pursuant to section 5405.
6. The Applicant did not sustain a specific injury to his low back on either February 1, 2016, or January 30, 2016, on either an industrial and/or non-industrial basis.
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ORDERS
a. The Minutes of Hearing and Summary of Evidence (MOH/SOE) dated November 12, 2019, are hereby amended at p. 12, line 22, to indicate January 30, 2016, and not the September 30, 2016 date indicated, which corrects a typographical error.
b. The MOH/SOE dated November 12, 2019, are likewise amended at page 4, line 1, Issue No. 7, to indicate an alleged violation of Labor Code section 4063, and not the 4663 indicated, to correct a typographical error.
WORKERS' COMPENSATION APPEALS BOARD
I CONCUR, KATHERINE WILLIAMS DODD, COMMISSIONER, JOSEPH V. CAPURRO, COMMISSIONER.