DATE OF INJURY/LC 5500.5

Guzman v. Abbot’s Pizza Co. (BPD) (45 CWCR 178): 

Applicant alleged a specific injury into cumulative trauma injuries while working for Abbot’s Pizza Company. Insurance coverage was provided by Employer’s Compensation, Insurance Company of the West, and Security National Insurance.

Applicant and Employer’s Compensation and Insurance Company of the West entered into a compromise and release agreement stating that would not be liable for any liens.

The WCJ agreed to approve the compromise and release only if that language was stricken.

The settling parties agreed to delete the language but failed to do so.

The WCJ approved the settlement not realizing the disapproval language remained in the documents.

Defendant Security National was joined as a party defendant after the compromise and release had been initially approved.

During a mandatory settlement conference, the WCJ discovered that the lien language and not been stricken and rescinded the order approving the settlement.

The WCAB granted removal stating that the WCJ’s order would not be rescinded, but rather amended to order a hearing at which the WCJ could either issue an order approving the original settlement or on a showing of good cause a proven amended settlement or disapprove the settlement.

At a status conference following removal, the two signatory defendants amended the lien language as originally directed and the WCJ approved the settlement.

The WCJ wrote that the applicant was not precluded from pursuing claims against Security National and to the extent that it was uninsured, the employer.

Security National petition for reconsideration.

The WCAB dismissed the petition for reconsideration.

The panel, largely relying on the judge’s reconsideration report, observed that Labor Code §5505 provides that in any case involving a claim of occupational disease or cumulative injury, the employee and any employer or any insurance carrier for any employer may enter into a compromise and release agreement settling either all or any part of the employees claim.

Once approved, that settlement provides a total release for the employer carrier for the portion of the claim settled but does not bar applicant from proceeding against the remaining employers or carriers as provided in section 5500.5 for the period of exposure not released.

The WCJ remarked that Labor Code §5500.5 (b) does not prohibit joinder of a party after an award of benefits, and that Labor Code §5500.5 (e) permits proceedings for apportionment of liability to be initiated within one year after an award is approved, and that it is reasonable that proceedings to obtain Joinder of necessary party may also be initiated up to one year after the disapprove.

The WCJ reiterated that defendant Security National was not a signatory to the Compromise and Release, and therefore could not be aggrieved by an order rescinding and amending.

The WCAB had previously ruled that Security National could not seek to enforce an order that did not involve it as a party.

Accordingly, the panel, as previous panels, ruled that Security National had not been aggrieved by the order approving the settlement. Since not a party to it, it lacked standing to challenge it.

Gravlin v. City of Vista (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 413):

The WCAB that an applicant sustained a single cumulative trauma injury resulting in hypertension and skin cancer.

Defendant had argued that the applicant had sustained two separate cumulative trauma injuries. The first Cumulative trauma injury was to his heart and hypertension and a second separate cumulative injury to his skin arguing each had a separate date of injury pursuant to Labor Code § 5412.

The WCAB concluded that separate disabilities arising out of a single injury are rated together, even if those disabilities do not become permanent and stationary at the same time.

The general rule is that when an employee suffers contemporaneous injury to different body parts over an extended period of time, he or she has suffered one cumulative trauma injury.

The WCAB found that the date of injury for the skin cancer and the hypertensive/heart injury to both ended on April 25, 2002 and that the applicant suffered the traumatic employment through that date.

The WCAB found no evidence that the applicant had any new disability or need for treatment caused by additional work after that period.

Anaya v. Kelly (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 381):

The WCAB upheld the WCJ found that a seasonal strawberry picker sustained one cumulative trauma injury and the insurer at the end of his employment was solely liable for the injury.

The facts established that the applicant received benefits for the injury one year before his last date of employment. The applicant at that time reported symptoms and receive medical treatment and received wage loss for three weeks (did not receive temporary disability). The applicant symptoms do not resolve during the off-season.

The applicant then returned to work after the off-season and approximately 11 months later ported a new injury and receive medical treatment.

The Agreed Medical Evaluator found the applicant sustained injury through his the last date of employment. The Agreed Medical Evaluator found that when the applicant returned to work that was not a start a new CT, but a continuation of the original injury.

The WCJ then held that applicant’s report of injury in receipt of benefits in 2011 did not establish knowledge of a cumulative injury for the purposes of Labor Code §5412.  Because there was no evidence that the applicant knew his back problems were caused by work in 2011, the WCAB concluded CT injury ended in 2012 and liability under §5500.5 was limited to the insurance carrier during the last year preceding that day.

County of Riverside v. Workers’ Compensation Appeals Board (Sylves) (Court of Appeal, published) 82 C.C.C. 4

From December 12, 1998 to October 28, 2010, applicant was employed by the County as a deputy sheriff. He took his retirement and then went to work for the Pauma Police Department on a reservation belonging to the Pauma Band of Indians, which is a federally recognized Indian tribe. He was employed by the Pauma Police Department from December 28, 2010 through July 4, 2014.

The applicant filed an application for adjudication of claim on July 16, 2014. He claimed a continuous trauma injury in the form of hypertension, GERD, left shoulder, low back and both knees.

On July 16, 2015, the Workers’ Compensation Judge issued a findings of fact. The WCJ found that, pursuant to Labor Code §5500.5, applicant’s continuous trauma was limited to the last year of injurious exposure, even if it was with the Pauma Tribal Police. The WCJ found that applicant’s knee and left shoulder injuries, GERD and sleep disorder were not compensable injuries arising out of employment. The WCJ found the applicant’s hypertension and back were compensable and arose out of his employment with the County of Riverside. The County of Riverside and the Applicant filed petitions for reconsideration.

The WCAB granted reconsideration for study and issued a decision after reconsideration finding substantial medical evidence of industrial injury to applicant’s left shoulder, bilateral knees, GERD and sleep disorder. With respect to the Statute of Limitations, the WCAB found that the time in which to file a claim did not begin to run until a doctor told the applicant that the symptoms for which he had been receiving medical treatment were industrially related. The medical confirmation did not occur until 2013 and therefore the filing of the application in 2014 was timely.

The WCAB further found that Labor Code §5500.5 is not a Statute of Limitation, but provides for a supplemental proceeding in which multiple defendants have an opportunity to apportion liability. The WCAB agreed with the applicant that Labor Code §5500.5 cannot limit liability to the Pauma Police Department in this case because the WCAB lacks jurisdiction over the tribe. They determined that applicant while employed during the period December 27, 1998 through October 28, 2010, as a deputy sheriff, by the County of Riverside, sustained injury arising out of the course of his employment in the form of hypertension, injuries to the lower back, left shoulder, both knees, GERD and sleep disorder, as well as the fact that the County failed to meet its burden of proof on the Statute of Limitations defense raised. A petition for writ of review was filed.

The Court of Appeal stated that the applicant was required to file his application for adjudication of claim within one year the date of injury. The date of injury and cumulative injury case shall be the date set forth in Labor Code §5412. The date of injury, pursuant to Labor Code §5412, is the date upon which the employee first suffered disability 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 County had the burden of proof on the issue.

Citing the City of Fresno (163 Cal. App. 3d 467), the court stated that the applicant would not be charged with knowledge that his disability was job-related without medical evidence to that effect unless the nature of the disability and applicant’s training, intelligence and qualifications were such that the applicant should have recognized the relationship between the known adverse factors involved in his employment and his disability.

In this case, the facts established that the doctors first report told applicant that his medical condition was related to employment within one year of his filing an application for adjudication of claim. The applicant did not receive an opinion that his condition was work-related until 2013. Therefore, the finding of the Appeals Board is based on substantial evidence. Section 5500.5 allows an employee to select one or more employers against whom to proceed, and then permitting, any employer held liable under the award may institute proceedings before the Appeals Board for the purpose of determining an apportionment of liability or right of contribution.

The purpose of the one-year limitation period in §5500.5 was to alleviate the difficulties encountered by the parties in complying with the requirements of former §5500.5 whereby employees and their attorneys were frequently compelled to expend much time, effort and money in tracing applicant’s employment history over the entire course of his adult life. Limiting the liability of the defendants in a workers’ compensation case is not the same as prescribing the time in which the case can be filed. Labor Code §5500.5 does not relate to the Statute of Limitations for filing an application for adjudication of claim.

The Court of Appeal next dealt with the issue of Labor Code §5500.5. Labor Code §5500.5 states that liability for occupational disease or cumulative injury claims shall be limited to those employers who employ the employee during a one-year period immediately preceding either the date of injury pursuant to §5412 or the last date on which the employee was employed in an occupation exposing him or her to the hazards of the occupational disease or cumulative injury, whichever occurs first. The Court of Appeal found that the WCAB did not violate §5500 (a) when it imposed liability on the County.

It is undisputed that the applicant was employed by the Pauma Police Department and not the County of Riverside for the period December 28, 2010 through July 4, 2014 and that the applicant did not have another employer after that time. The court assumed that the job with the Pauma Police Department was injurious. The court went on to indicate the applicant’s date of injury did not occur until 2013, when the doctors first told the applicant that his ailment was industrially related. Therefore, they indicated it appeared the liability was limited to the Pauma Police Department.

However, the court stated this result does not follow in this case for two reasons. First, the WCAB noted that the Pauma Police Department was not a party, and no claim had been made as to it.  Section 5500.5 expedited matters by allowing a claimant to proceed against one or a small number of employers or carriers, while still allowing those employers and carriers to join and seek contribution from other employers and carriers. What it does not do is allow the County to diminish, restrict or alter in any way the recovery previously allowed the employee or his dependents.

Labor Code §5500.5 (a) provides that in the event that none of the employers during the last year of occupational disease or cumulative injury are insured for workers’ compensation coverage or an approved alternative thereof, liability shall be imposed upon the last year of employment exposing the employee to the hazards of the occupational disease or cumulative injury for which an employer is insured for workers’ compensation coverage or an approved alternative.

The County did not contest that the Pauma Police Department belongs to a federally recognized Indian tribe, and the answers in the record indicate this is in fact so. The WCAB lacks jurisdiction over federally recognized Indian tribes.

The appeals Board does not possess subject matter jurisdiction over the tribe as a matter of law. It seemed to the court that the fact the Pauma Police Department was not subject to the WCAB’s jurisdiction meant the department was not insured for workers’ compensation coverage or an approved alternative. Consequently, liability was imposed on the next employer in line that had workers’ compensation insurance. In this case, that was the County of Riverside. The order of the WCAB was affirmed.

Tanzman v. Warner Pacific Insurance/CIGA (BPD) (45 CWCR 236)

The matter was litigated date of injury pursuant to Labor Code §5500.5.

Applicant testified to missing work in April 2001 for several days after the initial visit with the primary treating physician in late March of that year. She returned to her regular work but was given ergonomic adjustments to her workspace and modified duties.

Applicant testified she continued to work until August 2003.

At the applicant’s initial appointment with the primary treating physician she was diagnosed with cervical degenerative disc disease with evidence of carpal tunnel syndrome.  Off work from April 9, 2001 through April 13, 2001.

The evidence established that seek a temporary disability benefits from April 12, 2001 through April 13, 2001 and then permanent disability indemnity from April 14, 2001 through October 19, 2001.

The applicant testified that her symptoms began the year prior to 2001 and it was in March 2001 she realized the symptoms were related.

The applicant was evaluated by an Agreed Medical Evaluator. The doctor found a cumulative trauma injury from the first date of work through the last date of work but in a subsequent deposition was equivocal about the date of injury and concluded the applicant sustained the CT injury through December 2000 and to date she was declared permanent and stationary. The agreed medical evaluator concluded the applicant had one long continuous trauma.

The WCJ concluded that applicant’s date of injury was from April 9, 2000 through December 2, 2002 and to the permanent and stationary date with permanent disability of 77% after apportionment and found liability only against Employers Compensation and and CIGA was not liable as there was other insurance

Applicant and Employer’s Compensation sought reconsideration.

The WCAB granted reconsideration and found a cumulative trauma injury ending April 9, 2001.

The WCAB relied on the reporting of the primary treating physician rather than the Agreed Medical Evaluator’s opinion change throughout various reports and deposition.

The Primary Treating Physician consistently affirmed that the applicant was taken off work for injuries on April 9, 2001, and her own testimony concerning this fact and that she felt at the time of her temporary disability that her symptoms were work-related.

The WCAB held they were only bound to give consideration to the AME and were not bound by the decision of the Agreed Medical Evaluator.

Labor Code §3208.1 holds that a cumulative injury occurs when the repetitive physical or mentally traumatic activities of the occupation cause any disability or need for medical treatment.

Labor Code §5412 absent the date of injury for a cumulative trauma is the date of confluence of disability and knowledge that the disability is industrially caused.

The panel indicated disability can be either temporary or permanent.  Medical treatment alone, although not sufficient to establish disability, can be evidence of permanent disability.

The panel noted that it was uncontroverted at trial that the applicant was paid temporary disability in April 2001 and combining that with the consistent trial testimony and the reports of the primary treating physician supported the conclusion that the proper ending date of the continuous trauma was April 9, 2001.

Liability pursuant to the Labor Code §5500.5 lies with the employer or carrier on the risk in the year immediately preceding the date of injury pursuant to section 5412 or the last date of injurious exposure, whichever occurs first.

The panel concluded that the liability for the injury in the present case derived from the disability payments begun in April 2001, because the first manifestation of disability occurred then, along with acquisition of knowledge of industrial nature of the injury.

Therefore, Employer’s Compensation was excluded from liability for applicant’s injury as their period of coverage was outside the cumulative trauma injury period pursuant to Labor Code §5500.5. CIGA was totally responsible for the claim as liability fell during their months of coverage.

There was also an apportionment issue which is not being discussed.

It appears based on the medical evidence and testimony that a second period of continuous trauma was not found because applicant’s condition did not change when she returned to work.

 

Bass v. State of California (BPD) (82 CCC 1034)

The WCJ found only one cumulative trauma injury covering the applicant’s entire period of employment with the California Department of Corrections through his last day of work July 15, 2014 to applicant’s heart and orthopedic injuries.

The defendant filed a petition for reconsideration agreeing there was only one cumulative trauma injury covering the period of his employment but argues there are two different dates of injury pursuant to Labor Code §5412 for the heart and the orthopedic injuries.

The defendant argues that the date of injury for heart is when the applicant then went off work on temporary disability and for the orthopedic injuries the date of injury was when the Agreed Medical Evaluator concluded the applicant had permanent disability.

The WCJ indicated in his report that even if there were two different §5412 dates of injury, Labor Code §5500.5 would still find that liability would be determined based on the last date of injurious exposure rather than the Labor Code §5412 date of injury as that was the earlier date against which to apply liability pursuant to Labor Code §5500.5.

Labor Code §5412 determines the date for commencement of the running of the Statute of Limitations and the indemnity benefit rate and when the five-year Statute of Limitations begins to run, but Labor Code §5412 does not determine a separate period of injurious exposure. Thus there is just one injury.

The WCJ states that in this case there is no sound basis for finding two Labor Code §5412 dates of injury. Applicant testified that he knew he had a cumulative orthopedic injury and a heart injury when he was advised by a lawyer. It was then that he filed an application for both parts of the body injured during the period of injurious exposure.

There is a single cumulative injury which ended on applicant’s last date of work which was July 15, 2014. Applicant, at that time, went off work on temporary disability occasioned by treatment of his heart condition but already been treated for and continued to be treated for his orthopedic complaints.

The applicant filed an application for benefits alleging both his heart condition his orthopedic conditions as injury sustained during a cumulative trauma.

The WCJ indicated in this case there is no clear separation between the data manifestation and knowledge by the applicant of his industrial orthopedic condition which had require treatment for some period of time and which was paid under the umbrella of Worker’s Compensation and his heart condition which manifests itself a time when he went off work in July 15, 2014.

The applicant testified he became aware that both his orthopedic condition his heart condition were the result of industrial a cumulative injury when informed by his attorney when he filed his application for these compensation benefits.

The WCJ concluded there was one cumulative injury and the heart disability and orthopedic disability should be combined into a single injury.

The WCJ further found that applicant’s orthopedic disabilities and heart disability should be added instead of using the combined value chart.

The WCJ upheld the judge finding of one continuous trauma but remanded the matter for more evidence on the issue of whether disability should be combined or added.

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