CUMULATIVE INJURY - Labor Code §5500.5–There is no conflict between Labor Code §5500.5 and Labor Code §§4663 and 4664 after the enactment of SB899. Labor Code §5500.5 deals with identifying liability among employers, limiting liability in cumulative-injury cases to the employer during a period of one year prior to either the date of injury or the last date of injurious exposure. Labor Code §§4663 and 4664 deal with apportionment, providing that employers are liable only for the percentage of disability caused by the injury arising out of and in the course of employment, and apportionment of permanent disability shall be based on causation. (See Portland Trailblazers v. Workers' Comp. Appeals Bd. (Whatley) (2007) 9 WCB Rptr. 10,046 [writ denied]; see also new Jersey Nets v. Workers' Comp. Appeals Bd. (Theus) (2006) 8 WCAB Rptr. 10,194 [writ denied].) Golden State Warriors v. Workers' Compensation Appeals Board (David Feitl) 9 WCAB Rptr. 10,131 [Writ Denied]
CUMULATIVE TRAUMA - Labor Code §5500.0–Pursuant to Labor Code 5500.5, liability rests with the last employer exposing the employee to hazards of the occupational disease or cumulative injury for which there is insurance for workers' compensation coverage or an approved alternative. [In this case involving an NBA professional basketball player who had played basketball in Lithuania after he retired from the NBA, liability was properly imposed on the NBA team he played for in the last year of employment, exposing him to cumulative trauma.] Portland Trailblazers v. Workers' Compensation Appeals Board (Ennis Whatley) 9 WCAB Rptr. 10,046 [Writ Denied]
CUMULATIVE INJURY– Labor Code §5500.5(e) – At any time within one year after the Appeals Board has made an award for compensation benefits in connection with an occupational disease or cumulative injury, 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 to contribution. Nelson Personnel Services v. Workers' Compensation Appeals Board (Stella Juarez) 7 WCAB Rptr. 10,318 [Writ Denied]
CUMULATIVE INJURY– Baltimore Colts football player's cumulative injury based on an injury sustained in a football game played in California was denied based on an opinion of a court-appointed neurosurgeon that the specific game injury was not the cause of all his subsequent football-related medical problems and was barred by the statute of limitations by reason of two workers' compensation specific injury claims filed seven years before the cumulative injury claim was filed. Cleveland Crosby v. Workers' Compensation Appeals Board, Baltimore Colts 7 WCAB Rptr. 10,206 [Writ Denied]
CUMULATIVE INJURY– Date of injury– Labor Code §5412 controls the date of injury in cumulative trauma injuries. "Disability" as used in Labor Code §5412 means either temporary disability or permanent disability but does not mean medical treatment or symptoms. (See Chavira v. Workers' Comp. Appeals Bd. (1991) 235 Cal.App.3d 463; State Compensation Insurance Fund v Workers' Comp. Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998, 6 WCAB Rptr. 10,195.) Franklin Templeton v. Workers' Compensation Appeals Board (Janie Raburn) 7 WCAB Rptr. 10,175
CUMULATIVE INJURY– Labor Code §5500.5– Reimbursement or subrogation rights–In a cumulative injury case, when an insurance carrier is held liable for workers' compensation benefits under Labor Code §5500.5, the insurance carrier may pursue an action in civil court seeking reimbursement from an unlawfully uninsured employer. Graphic Arts Mutual Insurance Company v. Time Travel International, Inc. 7 WCAB Rptr. 10,069
CUMULATIVE INJURY– Labor Code §3208.1– A cumulative injury occurs as a result of repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment. No cumulative injury can occur until there is compensable disability, which consists of disability and/or need for medical treatment. The claimant has no cause of action and no right accrues until that point in time when the cumulative effects of the injury result in compensable disability. (See Van Voorhis v. Workers' Comp. Appeals Bd. (1974) 37 Cal.App.3d 81.)WSE Group and Republic Indemnity Insurance Company v. Workers' Compensation Appeals Board (Teresa Salto) 7 WCAB Rptr. 10,047
CUMULATIVE INJURY– Labor Code §5412– Date of injury for purposes of liability for a cumulative injury– The date of a cumulative injury occurs when the employee is first disabled and knows or should know that the disability is work-related. The term disability is not limited compensable temporary disability when the worker suffers wage loss due to time lost from work but also includes compensable permanent disability such as when the treating physician assigns work restrictions and the employee is placed on modified duty. State Compensation Insurance Fund v. Workers' Compensation Appeals Board, California Insurance Guarantee Association (Monica Rodarte) 6 WCAB Rptr. 10,195
CUMULATIVE INJURY– Labor Code §5500.5– Cumulative-injury claims are limited to those employers who employed the injured employee during the period of the last year of employment, which exposed the employee to the hazard of the cumulative injury. [In this case involving a professional football player, a single cumulative injury was properly found despite multiple identifiable events because the player's ultimate disability was properly attributed to cumulative trauma, with the permanent and stationary date being the last date applicant worked as a professional football player.] California Insurance Guarantee Association v. Workers' Compensation Appeals Board (Gregory Townsend) 6 WCAB Rptr. 10,188
CUMULATIVE TRAUMA INJURY– Labor Code §5500.5– A single cumulative trauma injury may not be found when there are two distinct periods of disability and need for medical treatment during separate employment exposures. (See Aetna Cas. & Sur. Co. v. Workers' Comp. Appeals Bd. (Coltharp) (1973) 35 Cal.App.3d 329. A cumulative injury during the first employment must result in disability, not just medical treatment, to constitute a separate injury to prevent the application of the last year of exposure as provided in Labor Code §5500.5. When two periods of temporary disability are linked by continued need for medical treatment, a single cumulative injury may be found. (See Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227.) [In this case, the applicant was not disabled and did not receive medical treatment for mild left ventricular hypertrophy diagnosed in March 1992 while working as a police officer. He retired due to a knee injury and there was no need for medical treatment for his heart condition prior to being employed by another employer, where he died of a heart attack in April 2002.] Jack in the Box, Inc. v. Workers' Compensation Appeals Board (Robert Abel) 6 WCAB Rptr. 10,157
CUMULATIVE INJURY– Ending Date of Cumulative Injury– Labor Code §5412– The date of injury in cases of occupational diseases or cumulative injuries is the date on 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. Disability is generally temporary disability or permanent disability. (See Chavira v. Workers' Comp. Appeals Bd. (1991) 235 Cal.App.3d 463.) Disability also may be defined in terms of an impairment of bodily function that results in impairment of earning capacity. (See J.T. Thorpe, Inc. v. Workers' Comp. Appeals Bd. (1984) 153 Cal.App.3d 327.) [In this case, the applicant had restrictions placed on her generating modified work, which was clearly an impairment of bodily function resulting in the impairment of earning capacity.] Spectra Laboratories v. Workers' Compensation Appeals Board (Elma Ortiz) 6 WCAB Rptr. 10,124
CUMULATIVE INJURY– Labor Code §5412– Date of injury for purposes of liability for a cumulative injury– The date of a cumulative injury occurs when the employee was first disabled and knows or should know that the disability was work-related. Is the term disability limited to time lost from work or does disability occur when the treating physician assigns work restrictions and the employee is placed on modified duty? State Compensation Insurance Fund v. Workers' Compensation Appeals Board, California Insurance Guarantee Association (Monica Rodarte) 6 WCAB Rptr. 10,070
CUMULATIVE TRAUMA INJURY– Labor Code §5500.5– When employment has been interrupted by periods of temporary disability due to the industrial injury, each period of employment separated by the interruption may constitute a distinct and separate injury. (See Aetna Cas. & Sur. Co. v. Workmen's Comp. Appeals Bd. (Coltarp) (1973) 35 Cal.App.3d 329.) Two successive cumulative trauma periods can arise if it is shown that they are separated not by a period of temporary disability but by a need for substantial medical treatment. (See American Bridge v. Workers' Comp. Appeals Bd. (Lee) (1995) 60 Cal.Comp.Cases 869 (writ denied).) [In this case, the two periods of employment were not due to disability but rather due to a work-related layoff, and applicant continued to perform her usual and customary duties.] City of Oxnard v. Workers' Compensation Appeals Board, Area Housing Authority (Sharon Ball) WCAB Rptr. 10,244
CUMULATIVE INJURY– Labor Code §5500.5– A liability is imposed during the last year of injurious exposure for which coverage existed. [In this case involving a single continuous trauma from 1986 to 2000, Fremont insured the employer for four months in 1987 and because there was no other workers' compensation insurance during another part of the continuous trauma, Fremont, as the only carrier that insured the employer during any part of that period, was entirely responsible for the injury. Western Village Hotel, Fremont Insurance v. Worker' Compensation Appeals Board (Huon Lim) 5 WCAB Rptr 10,231
CUMULATIVE INJURY– Did the Appeals Board err as a matter of law when it found two separate cumulative injuries without the support of any competent medical evidence? State Compensation Insurance Fund v. Workers' Compensation Appeals Board, California Insurance Guarantee Association (Narciso Rodriguez) 5 WCAB Rptr. 10,047
CUMULATIVE INJURY– Date of injury– Labor Code §5412– The date of injury in cases of occupational disease or cumulative injury is the date on which the employee first knew, or in the exercise of reasonable diligence should have known, that a disability was caused by his employment. County of Mendocino v. Workers' Compensation Appeals Board (Charles Jackson) 5 WCAB Rptr. 10,021
CUMULATIVE INJURY– Employers liable for cumulative injury or occupational disease– Labor Code §5500.5– If none of the employers during the last year of employment exposure to occupational disease or cumulative injury are insured for workers' compensation, liability shall be imposed upon the last year of employment exposing the employee to hazards of the occupational disease or cumulative injury for which an employer was insured for workers' compensation or an approved alternative. Utica National Insurance Company v. Workers' Compensation Appeals Board (Joe Garcia) 5 WCAB Rptr. 10,016
OCCUPATIONAL DISEASE OR CUMULATIVE INJURY– Date of Injury– Labor Code §5412– The date of injury in cases of occupational disease or cumulative injury is the date upon which the employee first knew, or in the exercise of reasonable diligence should have known, that such disability was caused by the present or prior employment. The date of injury requires concurrence of two elements: compensable disability [time lost from work or compensable temporary disability] and knowledge of industrial causation. Seco Industries, Inc. V. Workers' Compensation Appeals Board (Paul Brown) 3 WCAB Rptr. 10,262
OCCUPATIONAL DISEASE OR CUMULATIVE INJURIES– Labor Code §5500.5– Liability for occupational disease or cumulative injuries is limited to those employers who employ the employee during a one year period immediately preceding either the date of injury under Labor Code §5412 or the last date upon which the employee was employed in an occupation exposing him or her to the hazards of the occupational disease or cumulative injury. California Insurance Guarantee Association v. Workers' Compensation Appeals Board (Forrest McGuire) 3 WCAB Rptr. 10,245
OCCUPATIONAL DISEASE– Asbestosis– Labor Code §4402(a)– Asbestosis is defined as any pathology, which results in disability or need for medical treatment from inhalation of asbestos fibers. This includes various occupational diseases resulting from the inhalation of asbestos, including mesothelioma. (See Chevron v. Workers' Comp. Appeals Bd. (1990) 219 Cal.App.3d 1265.) In this case, there was substantial evidence of work-related exposure to asbestos on which the award could be sustained. California Insurance Guarantee Association v. Workers' Compensation Appeals Board (Forrest McGuire) 3 WCAB Rptr. 10,245
CUMULATIVE INJURY– Labor Code §5412– The date of injury in cases of 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 present or prior employment. [In this case, the injured worker was able to continue to work for over there years without limitations from the first onset of her symptoms and this would tend to indicate that she had not experienced any ratable disability.] Cypress Insurance Company v. Workers' Compensation Appeals Board (Sylvia Hawkes) 3 WCAB Rptr. 10,142
CUMULATIVE INJURY– Labor Code §5500.5– In a cumulative injury or occupational disease case the liability is on those employers who employed the injured worker within one year of the last date of harmful exposure. HIH America Compensation v. Workers' Compensation Appeals Board (Lisa Diaz) 3 WCAB Rptr. 10,061
