INJURY - Date of injury for cumulative injuries-Labor Code §5412"The date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability there from and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment. Lennox Hearth Products v. Workers' Compensation Appeals Board, (Elda O. Escalante) 10 WCAB Rptr. 10,081 [Writ Denied]

INJURY - Joint and several liability for cumulative injury-In cases of cumulative injury, the injured worker has the right to enforce his or her benefit award against any jointly and severally liable defendant. See Royal Globe v. Ind. Acc. Comm. (1965) 63 Cal.2d 60.) The Appeals Board has the power to appoint either jointly liable insurer as administrator of the award. (See General Ins. Co. of America v. Workers' Comp. Appeals Bd. (Sales) (1980) 104 Cal.App.3d 278.) Explorer Insurance Company v. Workers' Compensation Appeals Board (Mansour Sohaili) 9 WCAB Rptr. 10,333 [Writ Denied]

INJURY - Cumulative injury date of injury-Labor Code §5412-The date of injury in cases of occupational disease or cumulative injuries is that date on which the employee first suffered disability therefrom. [In this case, the first actual lost time from work was the date of injury for the cumulative injury.] California Unemployment Insurance Appeals Board v. Workers' Compensation Appeals Board (Patricia Martinez) 9 WCAB Rptr. 10,318 [Writ Denied]

INJURY - Date of cumulative injury–Labor Code §5412–There must be compensable disability (either temporary or permanent) for there to be a date of cumulative injury. The need for medical treatment alone does not suffice. Nor would it appear that disability without liability for compensable benefits should meet the statutory requirement. Modified work alone is not a sufficient basis for compensable disability. (See State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998, 6 WCAB Rptr. 10,070.) Physical Rehabilitation Network v. Workers' Compensation Appeals Board (Nicole Filice) 9 WCAB Rptr. 10,318 [Writ Denied]

INJURY - Compensable consequences doctrine-When a subsequent injury is a direct and natural consequence of an original industrial injury, the subsequent injury is considered to relate back to the original injury and it is not treated as a new and independent injury. (See Southern Cal. Rapid Transit Dist. V. Workers' Comp. Appeals Bd. (Weitzman) (1979) 25 Cal.3d 158.) Sharon Nubla v. Workers' Compensation Appeals Board, Mercy Hospital of Sacramento 9 WCAB Rptr. 10,299 300 [Writ Denied]

INJURY - Presumption of compensability–The Labor Code §5402(b) presumption is properly rebutted when applicant's own medical evidence shows that the injury claimed is not compensable, even when applicant's medical evidence was obtained after the 90-day period after applicant's filing of a claim form. (See Witherall v. Workers' Comp. Appeals Bd. (1994) 59 Cal.Comp.Cases 1128 [writ denied] and Bowles v. Workers' Comp. Appeals Bd. (1995) 60 Cal.Comp.Cases 874 [writ denied].)Pedro Muna v. Workers' Compensation Appeals Board, U.S. Security Associates, Inc. 9 WCAB Rptr. 10,293 ___Cal.App.4th___

INJURY - Date of cumulative injury–Compensable temporary disability or permanent disability is required to determine the date of a cumulative injury under Labor Code §5412. (See State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998, 6 WCAB Rptr. 10,195.) County of Alameda v. Workers' Compensation Appeals Board (Latonia Pace) 9 WCAB Rptr. 10,285[Writ Denied]

INJURY - Presumption of injury– bloodborne infection–Labor Code §3212.8–A presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the case. A presumption becomes operative at trial when the basic facts giving rise to the presumption are established by the pleadings, stipulation, judicial notice or evidence. (See Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal.4th 1418, 4 WCAB Rptr. 10,101.) [In this case, applicant failed to establish the underlying basic facts necessary to invoke application of the Labor Code §3212.8 presumption that the bloodborne infectious disease manifested itself while applicant was employed as a police officer.] Rachael DuFour v. Workers' Compensation Appeals Board, City of Modesto 9 WCAB Rptr. 10,255 ___Cal.App.4th___

INJURY - Cumulative injury date of injury–Labor Code §5412–When the injured worker suffered no temporary disability, the date of the cumulative injury must be the first day of compensable permanent disability, which is the date the injured worker is determined to be permanent and stationary. (See State Compensation Insurance Fund v. Workers'Comp. Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998, 6 WCAB Rptr. 10,195.) Foothill-DeAnza College District v. Workers' Compensation Appeals Board (Mary Ward) 9 WCAB Rptr. 10,269[Writ Denied]

INJURY - Burden of proof on issue of causation–The injured worker has the burden of proving industrial causation by a reasonable probability. This burden does not require the injured worker to prove causation with scientific certainty. (See Rosas v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692.) [In this case, the applicant's QME and the medical literature provided substantial evidence to support a finding that it was reasonable that applicant's contracting hepatitis C as a utility maintenance worker in a sewage system was industrially related.] City of Turlock v. Workers' Compensation Appeals Board (STK09 YYZZZ) 9 WCAB Rptr. 10,238 ___Cal.App.4th___

INJURY - Date of injury in occupational diseases or cumulative trauma cases-Labor Code §5412-The date of injury in occupational disease and cumulative trauma injuries is that date on which the employee first suffered disability therefrom and whether he/she knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his/her present or prior employment. Ingram Micro, Inc. v. Workers' Compensation Appeals Board (Linda Solter) 9 WCAB Rptr. 10,250 [Writ Denied]

INJURY - Date of injury for cumulative injuries–Pursuant to Labor Code §5412, the date of injury for cumulative trauma injuries is the date the injured worker first suffered disability or knew with the exercise of reasonable diligence that the disability was caused by his present or prior employment. Jen-Kang Yang v. Workers' Compensation Appeals Board, Union Bank of California 9 WCAB Rptr. 10,229 [Writ Denied]

INJURY - Heart trouble presumption–Labor Code §3212–The heart trouble presumption of injury does not apply to a special investigator for the California Horse Racing Board. California Horse Racing Board v. Workers' Compensation Appeals Board (Martin Snezek) 9 WCAB Rptr. 10,220 ___Cal.App.4th___

INJURY - Going-and-coming rule–The judicially created "going and coming rule" generally precludes workers' compensation benefits for injuries sustained during a local commute en route to a fixed place of business at fixed hours. (See Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150.) Before entry onto the employer's premises, the going-and-coming rule ordinarily precludes recovery; after entry, the injury is presumed compensable as arising out of and in the course of employment. See General Ins. Co. v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 595.) Stacey Lamers v. Workers' Compensation Appeals Board, Securitas, Inc.9 WCAB Rptr. 10,166 ___Cal.App.4th___

INJURY - Presumption of compensability–Labor Code §3212.8–The bloodborne infectious-disease presumption applies to employees who are members of a sheriff's office, police or fire department of cities, counties, districts, or other public or municipal corporations, except those whose principal duties are clerical or otherwise do not clearly fall within the scope of active law enforcement service or active firefighting services. [In this case, the applicant was a teacher's assistant employed by the California Youth Authority.] Terri Foster v. Workers' Compensation Appeals Board, Department of Corrections, Deuel Vocational Institute 9 WCAB Rptr. 10,177 [Writ Denied]

INJURY - Post-termination/layoff defense–Labor Code §3600(a)(10) does not require an employer to make an affirmative showing of prejudice for the post-termination defense to apply. Emiliano Avila Chavez v. Workers' Compensation Appeals Board, Modern Developmental Company 9 WCAB Rptr. 10,110 ___Cal.App.4th___

INJURY - Date of cumulative trauma injury–Labor Code §5500.5–A cumulative trauma injury is defined as one in which the injury occurred from repetitive physically traumatic activities extending over a period of time, the continued effect of which causes any disability or need for medical treatment. For the ending date of a cumulative trauma injury, compensable temporary disability or permanent disability is required. (See State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. (Rodarte) (2004) 199 Cal.App.4th 998, 6 WCAB Rptr. 10,195.) Flanders Precisionaire v. Workers' Compensation Appeals Board (Lucia Meza) 9 WCAB Rptr. 10,116 [Writ Denied]

INJURY - Cumulative trauma injury–Labor Code–5412–The date of injury in cases of cumulative trauma is that date upon which the injured worker first suffered disability and either knew, on in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment. Disability means an impairment of bodily functions that results in the impairment of earnings capacity. (See Marsh v. Industrial Acc. Com. (1933) 217 Cal. 338.) Solar Turbines Incorporated v. Workers' Compensation Appeals Board (Benjamin Gurfinkel) - 9 WCAB Rptr. 10,118 [Writ Denied]

INJURY - Cumulative injury–Labor Code §5500.5–For the ending date of a cumulative trauma injury, compensable temporary disability or permanent disability is required. (See State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998.( [In this case, a limitation to no overtime work did not represent an impairment of earning capacity that would give rise to compensable temporary partial disability.] Taylor Made Golf v. Workers' Compensation Appeals Board, Federal Insurance (Eduardo P. Navarro) 9 WCAB Rptr. 10,084 [Writ Denied]

INJURY - Cumulative injury–Labor Code §5500.5 is couched in terms of exposure to hazards, rather than injurious exposure. Labor Code §3600 requires as a condition of compensation that an injury be proximately caused by the employment. Therefore, an employer may not be held liable for a cumulative injury unless there is medical evidence of a causal connection between the exposure and the injury. (See Scott Co. v. Workers' Comp. Appeals Bd. (Stanley) (1983) 139 Cal.App.3d 98.) California Insurance Guarantee Association v. Workers' Compensation Appeals Board (Janis Foster) 9 WCAB Rptr. 10,066 [Writ Denied]

INJURY - Can an employee acting in the furtherance of his employer's interests unilaterally and of his own volition undertake an activity that results in an injury thereby creating a special mission such that the injury can be considered AOE/COE and therefore compensable? Michael Rash v. Workers' Compensation Appeals Board, Stanislaus County Sheriff's Department 9 WCAB Rptr. 10,059 [Writ Granted]

INJURY - Cumulative injury exception to the post-termination rule–Labor Code §3600(a)(10)(D)–In general, workers are not deemed to know that cumulative trauma injuries are work related. In assessing a worker's knowledge, consideration must be given to the intelligence, training and qualifications of the worker as well as the nature of the disability. Any doubts as to compensability of injuries must be resolved in favor of the worker. (See City of Fresno v. Workers' Comp. Appeals Bd. (1985) 163 Cal.App.3d 324.) Maria Arciga v. Workers' Compensation Appeals Board, Kendall-Jackson Wine Estates 9 WCAB Rptr. 10,041 ___Cal.App.4th___

INJURY- Cumulative injury–Labor Code §3208.1–A cumulative injury is defined as one in which the injury is occurring from repetitive physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment. [In this case, a racetrack jockey valet was repeatedly kicked, knocked down and stepped on and injured by horses almost daily during his 30 years of employment but continued to work full time without restrictions. The WCJ properly found that incidents that occurred were not reported as specific injuries, not any different from the daily events of his work environment, and that the injury was a compensable cumulative trauma.] Los Alamitos Race Course v. Workers' Compensation Appeals Board (John Kanis) 9 WCAB Rptr. 10,032 [Writ Denied]

INJURY-New and further disability-The terms "new and further disability" have been defined to mean disability that results from some demonstrable change in an employee's condition. A recurrence of temporary disability into permanent disability, a gradual increase in disability, or a new need for medical treatment all constitute new and further disability. (See Nicky Blair's Restaurant v. Workers' Comp. Appeals Bd.(1980)109 Cal.App.3d 954.) Valley Behavioral Health Network v. Workers' Compensation Appeals Board (Cindy Jo Cherry) 9 WCAB Rptr. 10,034 [Writ Denied]

INJURY- Date of injury of cumulative injury-Labor Code §5412-The date of injury for a cumulative injury 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 present or prior employment. (See Bassett-Magregor v. Workers' Comp. Appeals Bd. (1988) 205 Cal.App.3d 1102.) Whether an employee knew or should have known the disability was industrially caused is a question of fact. (See City of Fresno v. Workers' Compensation Appeals Board (1985) 163 Cao.App.3d 467.) Federal Express v. Workers' Compensation Appeals Board (Jeannie Uhlik) 9 WCAB Rptr. 10,033 [Writ Denied]

INJURY - Injuries that arise from the workers' compensation litigation process do not arise out of and are not within the course of employment. (See Rodriquez v. Workers' Comp. Appeals Bd. (1994) 21 Cal.App.4th 1747.)

INJURY - Compensable consequence injury-A compensable consequence of an original industrial injury is a secondary incident that, although perhaps a new and distinct injury, is not a new and independent injury but rather the direct and natural consequence of the original industrial injury. (See Rodriquez v. Workers' Comp. Appeals Bd. (1994) 21 Cal.App.4th 1747.) Fresno Unified School District v. Workers' Compensation Appeals Board (Janett Stephens) 8 WCAB Rptr. 10,353 ___Cal.App.4th___

INJURY - Burden of proof–A physician's speculative conclusion that employment was an active factor to developing an employee's condition does not amount to sufficient evidence (See Georgia-Pacific Corp. v. Workers' Comp. Appeals Bd. (Bryne) (1983) 144 Cal.App.2d 72.) Fred Jordan v. Workers' Compensation Appeals Board, City of Farmersville 8 WCAB Rptr. 10,357 ___Cal.App.4th___

INJURY - Burden of proof—When a employee has sustained an industrial injury under the workers' compensation system, the injured worker must demonstrate a need for medical treatment or disability that diminishes his earning capacity before the employer is required to furnish benefits, whether it be monetary, medical or any form of unspecified benefits. See Shoemaker v Meyers (1990) 52 Cal.3d 1; see also, Livitsanos v. Superior Court (1992) 2 Cal,App.,4th 744.) [In this case the applicant claimed injury to his reproductive system and sought expenses which included in-vitro fertilization procedures for both the applicant and his wife.] Denys A. Bushell v. Workers' Compensation Appeals Board, City of Torrance 8 WCAB Rptr. 10,338 [Writ Denied]

INJURY-Compensable consequence injury—A compensable consequence injury is a subsequent injury, whether an aggravation of the original industrial injury or a new and distinct injury, if it is the direct and natural result of a compensable industrial injury. (See So.Cal.Rapid Transit Dist. V. Workers' Comp. Appeals Bd. (Weitzman) (1979) 23 Cal.3d 158.)

INJURY-Compensable consequence injury—For a subsequent injury to be deemed a compensable consequence or an earlier industrial injury, the earlier industrial injury need not be the exclusive cause of the subsequent injury, but a contributing factor. If the industrial injury was a contributing cause of the subsequent injury it is compensable on an industrial basis. (See State Compensation Ins. Fund v. Ind. Acc. Com. (Wallin) (1959) 176 Cal.App.2d 10.) Wal-Mart Stores, Inc. v. Workers' Compensation Appeals Board (Della Cornonel) 8 WCAB Rptr. 10,325 [Writ Denied]

INJURY-New and further injury–When the need for increased medication to control worsening hypertension was due to the stress of work and not from the natural progression of applicant's cumulative trauma heart injury, it did not give rise to a new and further injury. (See Nicky Blair's Restaurant v. Workers' Comp. Appeals Bd. (1980) 109 Cal.App.3d 941.) Darryl Blackmon v. Workers' Compensation Appeals Board, State Department of Corrections 8 WCAB Rptr. 10,294 [Writ Denied]

INJURY-Burden of proof-An employee claiming industrial injury has the burden of proving by a preponderance of the evidence that the injury arose out of and occurred in the course of employment. (See Rogers v. Workers' Comp. Appeals Bd. (1985) 172 Cal.App.3d 1195.) Leo Guevara v. Workers' Compensation Appeals Board, Specialty Crane & Rigging} 8 WCAB Rptr. 10,245 [Writ Denied]

INJURY-Burden of proof–An employee seeking workers' compensation benefits has the burden of proof by a preponderance of evidence that an injury or disease arose out of and in the course of employment. (See Livitsanos v. Superior Court (1992) 2 Cal.4th 744.) [In this case the WCJ found that the employee did not sustain either a specific injury or cumulative trauma since the treating physician reported the employee did not perform any activity other than "general daily activities and use of the hands."] Wilma Benyamino v. Workers' Compensation Appeals Board, Department of Social Services In-Home Supportive Services 8 WCAB Rptr. 10,219 ___Cal.App.4th___

INJURY-Cumulative trauma injuries–Labor Code §5500.5–Where injurious exposure is alleged over a period of time, the employer in the last 12 months of exposure is liable. New Jersey Nets, Atlanta Hawks, Orlando Magic v. Workers' Compensation Appeals Board (Reggie Theus) 8 WCAB Rptr. 10,194 [Writ Denied]

INJURY-Possible vs. probable cause of injury–A possible cause becomes probable only when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. (See Zipton v. Workers' Comp. Appeals Bd. (1990) 218 Cal.App.3d 980.) [In this case, based on the medical evidence and the autopsy, the probable cause of the injured worker's death was a fungal infection introduced with either epidural injections or lumbar surgery required by the industrial injury.] Fedco for Lumbermen's Mutual Casualty Company v. Workers' Compensation Appeals Board (Gerald Cross) 8 WCAB Rptr. 10,163 [writ denied]

INJURY-Proximate cause of injury–Labor Code §3600 requires that the injury be proximately caused by the employment. In the case of an assault on an employee, the proximate causation requirement is fulfilled if the employment is a contributory cause of the injury and need not be the sole cause, (2) where the injury occurs on the employer's premises while the employee is in the course of employment, the injury also arises out of the employment unless the connection is so remote from the employment that it is not an incident thereof, (3) the motivation of an attack upon an employee by a third party is personally unconnected with an employee's duties and does not per se render the injury non-compensable, and (4) to effectuate the purposes of the compensation statute, all reasonable doubts as to whether an injury is compensable are to be resolved in favor of the employee. (See California Compensation & Fire Co. v. Workmen's Comp. Appeals Bd. ( 1968 ) 68 Cal.2d 157.) Zenith Insurance Company v. Workers' Compensation Appeals Board (George Davis Ellis, III) 8 WCAB Rptr. 10,158 [writ denied]

INJURY- Cumulative-injury exception to the post-termination claim rule–Labor Code §3600(a)(10)–Did the Appeals Board err in its determination that the cumulative-injury exception to the post-termination claim rule did not apply because the injured worker knew her injury was work related prior to being terminated? Maria Arciga v. Workers' Compensation Appeals Board, Kendall-Jackson Wine Estates 8 WCAB Rptr. 10,140 [Writ Granted]

INJURY¬ Cumulative-injury exception to the post-termination claim rule–Labor Code §3600(a)(10)–Did the Appeals Board err in its determination that the cumulative-injury exception to the post-termination claim rule did not apply because the injured worker knew her injury was work related prior to being terminated? Maria Arciga v. Workers' Compensation Appeals Board, Kendall-Jackson Wine Estates 8 WCAB Rptr. 10,140 [Writ Granted]

INJURY- Industrial causation–The threshold of proof for the industrial causation of disease or disability requires a showing of more than mere possibility. The applicant has the burden of proof that industrial causation is reasonably probable. (See McAllister v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 408.) Charles Camarillo v. Workers' Compensation Appeals Board, Disneyland 8 WCAB Rptr. 10,135 [Writ Denied]

INJURY- Knowledge that disability is work-related–In certain cases involving a cumulative injury, a medical opinion that the worker'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. (See City of Fresno v. Workers' Comp. Appeals Bd. (1985) 163 Cal.App.3d 467.) The absence of a medical opinion of industrial disability is merely one factor to consider, particularly where the causes of disability are not obscure or debatable. (See Neilsen v. Workers' Comp. Appeals Bd. (1985) 164 Cal.App.3d 918.) Maria Arciga v. Workers' Compensation Appeals Board, Kendall Jackson Wine Estates, Ltd. 8 WCAB Rptr. 10,085 [Writ Denied]

INJURY- Labor Code §3212.1–When an injured active fire-fighter shows that he was exposed to known carcinogens and that the cancer manifested within three months of each year of service, not to exceed 60 months, the burden shifts to the employer to establish that there was no reasonable link between the exposure and the cancer. (See Law v. Workers' Comp. Appeals Bd. (2003) 5WCAB Rptr. 10,102 [writ denied].) City of Los Angeles v. Workers' Comp. Appeals Bd. (Kurt Barrett, deceased) 8 WCAB Rptr. 10,033 [Writ Denied]

INJURY– Evidence of causation of injury– Liability for an industrial injury cannot merely be imposed based on exposure to a hazardous environment for a period of time, there must be evidence of causation. (See Scott v. Workers' Comp. Appeals Bd. (Stanley) (1983) 139 Cal.App.3d 98.) Joseph Aradas v. Workers' Compensation Appeals Board, Disneyland 7 WCAB Rptr. 10,304 [Writ Denied]

INJURY– Causal connection between accident and consequences of industrial injury– When a worker participates in a vocational rehabilitation program and is injured as a result of that participation, there is sufficient proximate causation to place liability on the employer in the underlying workers' compensation claim. (See Rodgers v. Workers' Comp. Appeals Bd. (1985) 168 Cal.App.3d 567.) [In this case, the injured worker was participating in a vocational rehabilitation program involving a study group in cardiac sonography, which met in a coffee shop off campus. The worker fell and broke her arm in the coffee shop, resulting in four surgeries.] Pleasant Valley School District v. Workers' Compensation Appeals Board (Janet Padron) 7 WCAB Rptr. 10,224 [Writ Denied]

INJURY– Labor Code §5303– Specific and cumulative injuries do not merge into or form a part of another injury– There are two distinct classifications of injury in workers' compensation proceedings: specific injuries and cumulative injuries. These are separate forms of injury and constitute separate causes of action. There is one cause of action for each injury and the specific and cumulative injuries do not merge into or form a part of another injury. Fire Craft Technologies v. Workers' Compensation Appeals Board (Elda Escalante) 7 WCAB Rptr. 10,223 [Writ Denied]

INJURY– The mere fact that a specific claim followed by a cumulative claim involves the same body part does not, in and of itself, cause the settlement of the earlier specific claim to be res judicata to the later cumulative injury claim. Fire Craft Technologies v. Workers' Compensation Appeals Board (Elda Escalante) 7 WCAB Rptr. 10,223 [Writ Denied]

INJURY– Causal relationship between work conditions and death– A physician's broad conclusion that a condition is work related is not sufficient if no specific connection is made. (See Georgia-Pacific Corp. v. Workers' Comp. Appeals Bd. (1983) 144 Cal.App.3d 72.) [In this case, if decedent's exposure to diatomaceous earth caused his death, then evidence of cristobalites, also known as crystalline silica, would have been apparent in autopsy evidence.] Johns Manville International Inc. v. Workers' Compensation Appeals Board (Earl Howell, deceased, and Jean Howell (widow)) 7 WCAB Rptr. 10,211 ___Cal.App.4th___

INJURY– Exacerbation may be a compensable specific injury. (See California Compensation & Fire Co. v. Industrial Accident Commission (Smith) (1962) 27 Cal.Comp.Cases 113 [writ denied].)Franklin Templeton v. Workers' Compensation Appeals Board (Janie Raburn) 7 WCAB Rptr. 10,175

INJURY– Compensable consequences doctrine–Under the compensable-consequences doctrine, where a subsequent injury is the direct consequence of a compensable original industrial injury, the subsequent injury is normally considered to relate back to the original injury and is normally also deemed to be compensable. (See Southern Cal. Rapid Transit Dist. v. Workers' Comp. Appeals Bd. (Weitzman) (1979) 23 Cal.3d 158.) City of Encinitas Fire Department v. Workers' Compensation Appeals Board (Michael Holtel) 7 WCAB Rptr. 10,126

INJURY– Causal connection between work-related exposure and injury–Did the Appeals Board properly determine that the decedent's interstitial fibrosis was caused by his work, resulting in lung cancer and death due to exposure to diatomaceous earth? Johns Manville International Inc. v. Workers' Compensation Appeals Board (Earl Howell, deceased and Jean Howell, widow) 7 WCAB Rptr. 10,108

INJURY– Off-duty recreational, social, or athletic activity–Labor Code §3600(a)(9)–An off-duty, recreational, social, or athletic activity injury is compensable where the activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment. (See Ezzy v. Workers' Comp. Appeals Bd. (1983) 146 Cal.App.3d 252.) [In this case an off-duty police officer was injured while exercising under the belief that the exercise was required to maintain fitness as a police officer assigned to a SWAT unit.] City of Long Beach v. Workers' Compensation Appeals Board (Eric Ledesma) 7 WCAB Rptr. 10,092

INJURY– Compensable consequences doctrine–Under the compensable consequences doctrine, where a subsequent injury is the direct consequence of a compensable original industrial injury, the subsequent injury is normally considered to relate back to the original injury and is normally also deemed to be compensable. (See Southern Cal. Rapid Transit Dist. V. Workers' Comp. Appeals Bd. (Weitzman) (1979) 23 Cal.3d 158.) The secondary injury is not compensable unless it meets the statutory conditions of compensation. [In this case the injured worker's secondary injury was caused by his intravenous heroin use and was not compensable because it did not meet the statutory conditions of compensation: Labor Code §3600(a)(4) [injury caused by unlawful use of a controlled substance] and Labor Code §3600(a)(5) [injury intentionally self-inflicted] and Labor Code §3600(a)(7) [injury caused by commission of a felony].] James Doke v. Workers' Compensation Appeals Board, Frazier Truck Leasing 6WCAB Rptr. 10,343

INJURY– Proof of industrial causation–When a worker suffers an injury, the standard for proving industrial causation is reasonable medical probability, not statistical evidence. (See Rosas v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 1962.) [In this case involving an applicant who contracted HIV infection, the WCJ properly rejected evidence of the statistical probability of occurrence of injury in the general population where there was uncontroverted evidence of a "needle-stick" while applicant was performing an injection of an end-stage AIDS patient.] Hollywood Community Hospital v. Workers' Compensation Appeals Board (XYZZX) 6 WCAB Rptr. 10,316

INJURY– Date of cumulative injury–Labor Code 5412–When an employee suffered a cumulative injury prior to the last date of exposure but did not discover the causal connection between his disability and the employment activities until after the employment was terminated, the employee may apply for benefits because the date of injury would be deemed the date he discovered that the disability was caused by the prior employment. (See Fruehauf Corp. V. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 569.) Virginia Surety v. Workers' Compensation Appeals Board (Sami Imad) 6 WCAB Rptr. 10,318

INJURY– Burden of proof–Although the applicant carries the burden of proving industrial causation by a reasonable medical probability (see McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 4088), that burden does not require applicant to prove causation by a scientific certainty. (See Rosas s v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692.) The Appeals Board is bound to uphold a claim in which proof of industrial causation is reasonably probable, even though the exact causal mechanism is unclear or even unknown. County Sanitation District No. 2 of Los Angeles County v. Workers' Comp. Appeals Bd. (John Chester) 6 WCAB Rptr. 10,319

INJURY– Compensable consequence injury–For a subsequent injury to be deemed a compensable consequence of an earlier industrial injury, the earlier industrial injury need not be the exclusive cause of the subsequent injury, but a contributing factor. If the industrial injury was a contributing cause of the subsequent accident, liability is established on an industrial basis. (See State Compensation Insurance Fund v. Ind. Acc. Com. (Wallin) (1959) 176 Cal.App.2nd 10.) City of San Diego v. Workers' Compensation Appeals Board (Christopher Barker) 6 WCAB Rptr. 10,252

INJURY– Compensable consequence injury–A test for determining whether a subsequent accident is a compensable consequence of the original industrial: (1) It must be determined if the aftereffects of the disability from the industrial injury constituted a contributing cause of the subsequent accident, and (2) If the industrial injury was a contributing factor, it must be determined whether the subsequent accident occurred as a result of the applicant rashly undertaking activity with knowledge of the risk created in light of the disability from his or her industrial injury. (See Ballard v.Workers' Comp. Appeals Bd. (1971) 3 Cal.3d 832.) City of San Diego v. Workers' Compensation Appeals Board (Christopher Barker) 6 WCAB Rptr. 10,252

INJURY– Compensable consequence injury–A compensable consequence is said to be a subsequent injury, whether an aggravation of the original industrial injury or a new and distinct injury, if it is the direct and natural result of a compensable industrial injury. (See So.Cal. Rapid Transit Dist. v. Workers' Comp. Appeals Bd. (Weitzman) (1979) 23 Cal.3d 158.) [In this case, the applicant's psychiatric injury was a sequela of the initial industrial knee injury. Los Angeles Unified School District v. Workers' Compensation Appeals Board (La Tonya Carpenter) 6 WCAB Rptr. 10,254

INJURY– Cumulative Trauma Injury– Labor Code §5500.5(a)– Liability for a cumulative trauma injury is on the employers that subjected the injured worker to injurious exposure during the last year of employment. Jacksonville Jaguars v. Workers' Compensation Appeals Board (Darren Carrington) 6 WCAB Rptr. 10,122

INJURY ARISING OUT OF OR IN THE COURSE OF EMPLOYMENT– Off-duty recreational, social or athletic activity– Labor Code §3600(a)(9)– In applying section 3600(a)(9), courts have focused on whether the activity arose out of and in the course of employment or whether the activity was a reasonable expectancy of the employment. (See Ezzy v. Workers' Comp. Appeals Bd. (1983) 146 Cal.App.3d 252.) James Mason v. Lake Dolores Group, LLC. 6 WCAB Rptr. 10,116

WCAB PROCEDURE– Post-termination Claim of Injury– Labor Code §3600 (a)(10) bars retaliatory claims by terminated workers. (See CJS Company v. Workers' Comp. Appeals Bd.(Fong) (1999) 74 Cal.App.4th 294.) The exception relating to the date of injury of a cumulative claim subsequent to the date of termination or layoff will not apply if applicant was aware of, or, with the exercise of due diligence, should have been aware that a potential connection exists between his symptoms and his employment prior to the notice of termination or layoff. (See Cuen v. Workers' Comp. Appeals Bd. (2002) 4 WCAB Rptr. 10,110 [writ denied].) Thomas Faulkner v. Workers' Compensation Appeals Board, Sony Electronics, Inc. 6 WCAB Rptr. 10,093

INJURY– An injury is ordinarily established by medical evidence, but in certain cases the employee's or other lay testimony about the employee's condition may be sufficient. (See County of Los Angeles v. Ind. Acc. Comm. (Cordes) (1936) 14 Cal.App.2d 134.) [In this case, substantial evidence supported a finding of no subsequent injury because the injured worker never recovered from a prior injury, did not return to work and continued to receive medical treatment and had subsequent temporary aggravations that were only transient.] Smart and Final v. Workers' Compensation Appeals Board (Ted Duran) 6 WCAB Rptr. 10,047

INJURY– Aggravation or acceleration of pre-existing condition– In this case, the applicant, already at risk for liver disease as a result of his genetic disorder and his drinking history, worked as an undercover police officer for several years where consumption of alcohol was permitted and fostered by his employer. The record of consumption of alcohol as part of his job duties supported a finding that he had sustained a compensable injury on the basis that the consumption of alcohol aggravated and exacerbated applicant's liver condition and contributed to the progress of his liver disease and development of cirrhosis of the liver. City of Newport Beach v. Workers' Compensation Appeals Board (Albert G. Fischer) 6 WCAB Rptr. 10,028

INJURY– Subsequent injuries caused by initial industrial disability or even contributed to by initial industrial disability have been held to arise out of employment. The carelessness or contributory negligence of the injured worker does not break the causative connection unless such intervening carelessness or negligence is the sole and exclusive cause of the injury. In determining whether the subsequent incident is compensable, there are two inquiries: (1) it must be determined if the aftereffects of the disability from the industrial injury were a contributing factor to the subsequent accident, and (2) if the industrial injury was a contributing factor, did the subsequent accident occur as a result of rashly undertaking activity with knowledge of the risk created in light of the disability from the industrial injury. (See Beaty v. Workers' Comp. Appeals Bd. (1958) 80 Cal.App.3d 397.) Anheuser-Busch, Inc. v. Workers' Compensation Appeals Board (Thomas Henry, Jr.) 6 WCAB Rptr. 10,008

INJURY– Labor Code §3208.1 defines specific injury as an event that causes disability or need for medical treatment. In this case, the two QMEs could not find any specific injury or any cumulative trauma of an orthopedic or neurologic nature. Yvonne Legallo v. Workers' Compensation Appeals Board, Capital Corporation of the West. 5 WCAB Rptr. 10,360

POST-TERMINATION NOTICE OF INJURY– Labor Code §3600(a)(10)– When claim for compensation is made after notice of termination or layoff and the claim is for an injury occurring prior to the notice of termination or layoff, no compensation should be paid unless the employee demonstrates by a preponderance of evidence that the medical records existing prior to the notice of termination or layoff contain evidence of the injury. The medical records need not make reference to the causation of the injury in the workplace but simply make reference to the injury. LaVerne McAdoo v. Workers' Compensation Appeals Board, United Airlines. 5 WCAB Rptr. 10,348

INJURY– Compensable consequence injury– Substantial medical evidence supported the finding that a later reported neck injury was a compensable consequence of an admitted low back injury sustained in a altercation involving the applicant deputy sheriff and a jail inmate. The evidence showed that applicant altered his sleeping posture because of his low back condition and developed pain and stiffness in the neck. County of San Bernardino v. Workers' Compensation Appeals Board (Jack Hays) 5 WCAB Rptr. 10,328

INJURY–Cancer presumption– Labor Code §3212.1–In this case, the coalescence of medical evidence and the applicant's testimony regarding exposure to potential carcinogens to which he had been subjected during 20 years as a firefighter supported a finding of industrial causation. City of Oakland v. Workers' Compensation Appeals Board (Ronald Geddins) 5 WCAB Rptr. 10,215

INJURY– In a case involving the aggravating effect on an applicant's spontaneous coronary artery dissection, the question in the medical evidence turns on whether the activity that the decedent was engaging in at work on the date of injury was strenuous enough to cause the dissection of the aorta. [In this case, it was impossible to ascertain exactly what applicant was doing at the time his aorta was ruptured, because there were no witnesses, and decedent's activities at the time of the onset of the dissected artery, the decedent was eating a piece of pizza awaiting the conclusion of a computer repair by a technician.] Regina Reichenberg v. Workers' Compensation Appeals Board, County of Sacramento 5 WCAB Rptr. 10,213

INJURY– Nature and extent of industrial injury– In this case, the applicant was initially diagnosed with restrictive airway disease and pneumothorax, which was found to have been industrially caused by exposure to dust, fumes, mildew and possible chemical exposure. The progression of the exposure and disease resulted in multiple lung collapses ultimately requiring the left lung to be surgically attached to the chest wall to attempt to prevent further collapsing. The recurring collapsed lung condition was so intertwined with the lung disease that it was impossible to establish a nonindustrial causation for the lung condition that included the need for a lung transplant. Fireman's Fund Insurance Company v. Workers' Compensation Appeals Board (Connie Richardson) 5 WCAB Rptr. 10,192

INJURY– Cumulative trauma injury– In this case, the record supported the finding of no compensable injury because there was no evidence of prior ongoing, progressive symptoms and the medical reports and the testimony of the applicant indicated the onset of symptoms was sudden and unexplained. William L. Rowland v. Workers' Compensation Appeals Board, Wisconsin California Forest Products. 5 WCAB Rptr. 10,191

INJURY– Cumulative trauma injury– In this case, a single cumulative trauma injury was found because the applicant was subjected to the same injurious exposure over a period of years without any time off from work. Travelers Indemnity Company of Illinois v. Workers' Compensation Appeals Board (William Randall) 5 WCAB Rptr. 10,191

FEDERAL EMPLOYEES' COMPENSATION ACT– 2 United States Code §8102(a)– A psychological injury accompanied by physical injury, regardless of the order in which they occur, is within the scope of the Federal Employee's Compensation Act (FECA). Marilyn Moe v. United States of America. 5 WCAB Rptr. 10,143

INJURY– Injury traveling to medical treatment for industrial injury– Travel for medical treatment is viewed as activity within the course of employment, it must be related to the employment in the sense that it is necessary or reasonable travel that would not have been undertaken but for the compensable first injury. (See Southern California Rapid Transit District v. Workers' Comp. Appeals Bd. (1979) 23 Cal.3d 158.) [In this case, the deviation was determined to be unsubstantial and was reasonable under the circumstances and therefore the worker had not abandoned her trip for medical treatment and her accidental injury en route to or from the treatment was compensable.] Durham Transportation Company v. Workers' Compensation Appeals Board (Janice Dew) 5 WCAB Rptr. 10,115

INJURY– The fact that the applicant's internal injury to his heart was caused in part by stress of his employment does not require an underlying compensable psychiatric injury. Stress of employment may cause an injury arising out of employment without an allegation of injury to the psyche. (See Lamb v. Workers' Comp. Appeals Bd. (1974) 11 Cal.3d 274; Turner v. Workers' Comp. Appeals Bd. (1974) 42 Cal.App.3d 1036.) California Insurance Guarantee Association v. Workers' Compensation Appeals Board (Eugene Weerasekera) 5 WCAB Rptr. 10,100

INJURY– The mere presence of symptoms does not establish the existence of an industrial injury. There must be evidence of disability and/or a significant need for medical treatment. Redlands Community Hospital v. Workers' Compensation Appeals Board (Fred Michael Edwards) 5 WCAB Rptr. 10,100

INJURY– Date of injury for cumulative trauma claim– Labor Code §5412– 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. Expert scientific opinion is necessary to establish a causal relationship with employment. (See Peter Kiewit Sons v. Industrial Acc. Comm. (McLaughlin) (1965) 234 Cal.2d 831.) Modesto City Schools v. Workers' Compensation Appeals Board (Karl Finch) 5 WCAB Rptr. 10,055

INJURY– Date of injury– There can be different dates of injury for different purposes. The date of injurious exposure determines who are the responsible employers or insurers. The date of conjunction of knowledge and disability determines the statute of limitations pursuant to Labor Code §5412. Spreckels Limestone and Aggregate v. Workers' Compensation Appeals Board (Roger Diaz) 5 WCAB Rptr. 10,039

INJURY– There can be only one WCAB case for an injury, including the medical complications arising directly from the natural progression of that injury. [In this case, a claim was resolved by Stipulations and Award for cumulative injury through July 1989 to the pulmonary system due to exposure to silica dust resulting in 16% permanent disability and an award of further medical treatment. Jurisdiction was not reserved and a subsequent cumulative injury claim for asthma and cor pulmonale (heart trouble) was dismissed as duplicative as complications of the prior silicosis injury and not diseases independently arising from the same injurious exposure.] Spreckels Limestone and Aggregate v. Workers' Compensation Appeals Board (Roger Diaz) 5 WCAB Rptr. 10,039

INJURY– Combined injuries– Labor Code §3208.2– In this case the Agreed Medical Examiner did not differentiate or set forth percentages of liability attributable to the specific and the cumulative injury. The evidence taken as a whole would not have supported separate awards of disability in the two cases. California Insurance Guarantee Association v. Workers' Compensation Appeals Board (Delmar Slaughter) 4 WCAB Rptr. 10,333

INJURY– Date of cumulative injury– Labor Code §5412– The date of injury in cases of cumulative injury is the date on 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. Ronald Wyatt v. Workers' Compensation Appeals Board, Hansel Phelps Construction. 4 WCAB Rptr. 10,318

INJURY– Cumulative trauma injury– Labor Code §3208.1– Cumulative trauma is defined as occurring as 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. The dated of injury in a cumulative trauma injury is that date upon which the employee first suffered disability and knew, or in the exercise of reasonable diligence should have known, that such disability was caused by present or past employment. (See Chavira v. Workers' Comp. Appeals Bd. (1991) 235 Cal.App.3d 463.) Pacific Indemnity (Chubb) v. Workers' Compensation Appeals Board (Marsha Huber) 4 WCAB Rptr. 10,304

INJURY– Labor Code §3600(a)– An injured worker is not entitled to workers' compensation benefits unless he can demonstrate the occurrence of an injury. (See Fresno Unified School District v. Workers' Compensation Appeals Board (Humphrey) (2000) 84 Cal.App. 4th 1295, 2 WCAB Rptr. 10,380.) The injury must result in a need for medical treatment or a disability that diminishes the employee's capacity to work or compete in the open labor market, in order to be compensable. (See Livitsanos v. Superior Court (1992) 2 Cal. 4th 744.) Marriott International, Inc. v. Workers' Compensation Appeals Board (Randy Forbito) 4 WCAB Rptr. 10,269

INJURY– New and separate injury– When an employee becoses disabled, is off work and then returns to work only to again become disabled, there is a question of fact as to whether the new disability is due to the only injury or whether it is due to a new and separate injury. The mere existence of a claim of new injury accompanied by lost time from work or need for medical treatment is not sufficient to establish the existence of a new injury. (See Western Growers Insurance Company v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 227.) Carrie Richard v. Workers' Compensation Appeals Board, City of Westminster. 4 WCAB Rptr. 10,139

INJURY– Labor Code §3208– The term "injury" includes any injury or disease arising out of the employment. The injury may be a specific injury when "occurring as the result of one indent or exposure which causes disability or need for medical treatment, (Labor Code §3208.1). An injury causing a need for medical treatment is compensable even in absence of disability. (See Western Growers v. Workers' Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227.) [In this case the applicant sustained work related exposure to a pesticide, which was reported to the employer and was referred by the employer for medical treatment. The Board found that the WCJ's finding that applicant sustained an industrial injury was in conflict with his findings of no disability and no need for further medical treatment.] Tanimura & Antle v. Workers' Compensation Appeals Board (Juan Hernandez) 4 WCAB Rptr. 10,123

INJURY– Determination of industrial injury– An agreed medical evaluator is chosen by the parties presumably because of the AME's expertise and neutrality. (See Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775.) Accordingly, in the absence of contrary evidence of considerable substantiality, the AME's opinion should be generally followed. [In this case the AME included the right shoulder among the injured body parts and it should have been included in the injuries found.] Juan Perez v. Workers' Compensation Appeals Board, LCL Administrators. 4 WCAB Rptr. 10,028

INJURY– Wilkinson Rule– When successive injuries to the same part of the body cause permanent disability that cannot be separated because the injuries become permanent and stationary at the same time, the applicant is entitled to an award based on the combined disability. (See Fullmer v. Workers' Comp. Appeals Bd. (1979) 96 Cal.App.3d 164.) [In this case substantial evidence supported the finding that applicant's six industrial injuries became permanent and stationary at the same time. (See Pacific Bell v. Workers' Comp. Appeals Bd. (Marshall) (1998) 63 Cal. Comp. Cases 1087 (writ denied).] Southern California Edison Company v. Workers' Compensation Appeals Board (Jerome Remick) 3 WCAB Rptr. 10,341

PHYSICAL INJURY DUE TO WORK RELATED STRESS– Labor Code §3208.3 does not preclude a finding of internal injury due to stress, when there is factual and medical evidence to support such a finding. [In this case the applicant pled internal injury due to stress, manifesting in the form of nausea and gastrointestinal problems. Although applicant did not sustain her burden of proof as to the psychiatric injury, applicant did prove by a preponderance of the evidence that she sustained a separate and distinct internal injury caused by work-related stress.] The May Department Stores v. Workers' Compensation Appeals Board (Kelly Hull) 3 WCAB Rptr. 10,292

INJURY– Heart trouble presumption– Labor Code §3212-Hypertension alone cannot be considered "heart trouble" and therefore a finding of hypertension by itself, does not raise the presumption under Labor Code §3212. James Henderson v. Workers' Compensation Appeals Board, Sutter County District Attorney's Office. 3 WCAB Rptr. 10,188

INJURY– In this case, the need for surgery was not the result of natural deterioration from a work injury, but rather the result of a subsequent specific non-work injury. This intervening act cuts the causation from the work injury. [The injured worker had a stipulated pere-existing industrial injury for which the treating physician had recommended a work restriction precluding repetitive forceful use of the right upper extremity and the injured worker's use of an exercise device lit up the disability.] Cindy Lemon v. Workers' Compensation Appeals Board, Lumber City. 3 WCAB Rptr. 10,157

INJURY– Labor Code §3208.1 A child is not an injury, regardless of the circumstances that may arise as a result of he child's presence. The injury found in this case was a specific admitted injury to the psyche and low back resulting from an industrial rape. Therefore, any medical treatment benefits allowed must be for treatment of the psyche and low back of the injured worker. The defendants are not liable for further child support and maintenance benefits. Argonaut Insurance v. Workers' Compensation Appeals Board (Melanie J. Loeks) 3 WCAB Rptr. 10,123

INJURY–Hepatitis C exposure–An industrial injury may properly be found in a hepatitis C case when: (1) the employee was not required to prove causation by medical certainty but, rather, reasonable certainty; and (2) the employee's job exposed him to the hepatitis C virus and the employee had no other risk factors such as drug use, homosexuality, foreign travel, of family or friends with hepatitis C. (See County of Los Angeles v. Workers' Comp. Appeals Bd. (Gleason) (2002) 4 WCAB Rptr. 10,249.) [In this case, the employee was a teacher's aide and the medical record clearly indicated: (1) that the decedent was scratched on several occasions by children, and that she was bitten by a child who was known to have been infected with the hepatitis C virus; and (2) that the employee had no other known risk factors for hepatitis C.] Los Angeles County of Education v. Workers' Compensation Appeals Board (Rachel Guajardo (deceased), Jessie Guajardo (Widower)) 5 WCAB Rptr. 10,273