Avolevan: Ordinary Work Movements Contributed to a Nurse Technician’s Knee Injury

If you already had arthritis, an insurer may point to it when questioning whether your job caused an injury. The important medical question is what the work contributed. Repeated walking, squatting and kneeling can matter even when the movements are ordinary parts of a shift.

In Avolevan v. Antelope Valley Hospital, No. ADJ10027874 (WCAB June 29, 2023), the Board upheld a cumulative right-knee injury finding supported by the medical evaluator’s opinion that work activities aggravated the knee. It rejected the employer’s “normal bodily movement” argument and separately fixed the statutory injury date as July 1, 2015.

The medical record included arthritis and a work contribution

Marina Avolevan worked as a nurse technician. Her claimed cumulative injury covered ten years, from July 2003 through July 2013. Her knee history extended further back: The evaluator reviewed records documenting problems beginning in 1998 and degenerative changes over time.

Orthopedic QME Parviz Galdjie, M.D., initially examined her without the medical records. After reviewing them, Dr. Galdjie explained in Avolevan that walking, squatting, kneeling and other work activities would aggravate the knee. He distinguished those cumulative effects from a reported episode of striking the knee against a chair.

In later reporting, he reconsidered an earlier apportionment estimate because considerable degeneration could have occurred between the end of work in 2013 and his examination in 2019. The complete reporting and deposition testimony still identified an industrial contribution to the knee condition.

Those are distinct questions. Establishing that work contributed to an injury and determining the causes of permanent disability require their own analysis. The Board’s reviewed decision concerned industrial injury and the injury date.

The QME’s reasoned opinion supported the injury finding

The employer argued that no treating physician had identified a cumulative work injury. The Avolevan panel examined the role of the QME selected to address compensability under Labor Code section 4060.

A relevant, considered opinion from one physician can provide substantial evidence. The panel relied on the QME’s reports and testimony rather than treating the lack of a matching treating-doctor opinion as a barrier.

For a worker, that makes the evaluator’s reasoning important. An opinion should connect the actual duties, medical history and findings to the proposed work contribution. The QME’s review of the records and testimony supplied that explanation here.

Ordinary movement was still capable of causing a work injury

The employer argued that Avolevan performed movements similar to those people make outside work. During the deposition, its lawyer asked the doctor about a legal theory that normal bodily mechanics would exclude an industrial injury unless employment increased the risk.

The doctor deferred the legal question to the judge. The panel then applied the governing causation analysis to the medical evidence. It relied on Lumbermen’s Mutual Casualty Co. v. Industrial Accident Commission, 29 Cal.2d 492, 496–497 (1946), in explaining why unusual strain or exertion is not required. The question remained whether substantial medical evidence connected the work to the injury.

The Avolevan opinion applied South Coast Framing, Inc. v. Workers’ Compensation Appeals Board, 61 Cal.4th 291 (2015), to the QME’s finding of industrial contribution. It affirmed the right-knee injury finding.

The supported connection between her work and the knee condition supplied the answer. Describing the movements as normal did not eliminate the aggravating effects the medical evaluator had identified.

The Board also corrected the cumulative-injury date

The trial findings described the work-exposure period but omitted the statutory injury date under Labor Code section 5412. The Board addressed it because that date affects deadlines and other incidents of the claim.

Section 5412 asks when disability and actual or reasonably expected knowledge of its work connection came together. As the Avolevan panel explained, disability before the application was undisputed on this record. Avolevan met with counsel in 2015 and filed the cumulative-injury application on July 1, 2015. The Board found those events sufficient, in the circumstances of this case, to establish the knowledge component.

It therefore amended the findings in Avolevan to identify July 1, 2015 as the injury date and otherwise affirmed. The exposure period ending in 2013 and the statutory date in 2015 served different purposes in the decision.

That is a reason to obtain advice promptly when a possible cumulative injury emerges. Current Labor Code section 5405 addresses the time to commence benefit proceedings, while section 5412 defines the date for cumulative injuries. Section 5405 lists a one-year period from the injury date, the end of a period covered by disability payments, or the last furnishing of medical benefits. The actual dates and benefit history must be checked together.

Describe the work and the medical history accurately

Provide the evaluator with a clear account of the duties, their frequency and duration, and what changed in your symptoms or ability to work. Include earlier injuries, arthritis and treatment rather than omitting them. A reliable analysis needs both the preexisting condition and the asserted work effects.

Keep the complete reports and supplements together. In Avolevan, the initial examination, later record review, revised estimate and deposition testimony all formed part of the medical history considered by the Board.

Our Escobedo analysis addresses the separate question of what caused permanent disability and how a physician explains apportionment. For a disputed cumulative-injury claim, see our California workers’ compensation practice.