In re Moises Cobian, BIIA Dec. 10 13290 (2011): The worker filed a claim for diffuse pain in multiple areas of his upper body. The matter came before the Board upon the worker’s appeal from a Department Order which closed the claim, and segregated a number of conditions. In the Proposed Decision and Order, which affirmed the closing Order, the Industrial Appeals Judge entered a finding characterizing the date of “injury” and the date of claim filing, which were more than one year apart, and would have rendered the claim untimely. The Department had also failed to issue an allowance Order. Upon a timely Petition for Review filed by the claimant, the Board found that the parties had failed to articulate whether the condition was the result of a specific incident or an occupational disease. The Board determined that, when a claim has not been clearly allowed as an industrial injury or occupational disease, the parties and the industrial appeals judge must clearly address the question of whether the claim is for an industrial injury or occupational disease in the context of litigation before the Board.
Summary: Failure to specifically address the issue of whether a condition is the result of an industrial injury or an occupational disease may result in the Board’s acceptance of a Petition for Review, and, in some cases, possible reversal on that basis.