Grinberg: WCAB Comments on CT Claims
Wednesday, March 31, 2021 | 0
Cumulative traumas are tricky things sometimes.
California Labor Code Section 5412 provides that the date of injury for a cumulative trauma is the first date when there was disability and knowledge of industrial causation. Both disability and knowledge can be moving parts (and moving targets) in a workers’ compensation case.
The stakes are sometimes particularly high, depending on the fact pattern, as Labor Code Section 5500.5 puts the liability for a CT for any employers (or insurers) involved in the 52 weeks prior to the date of injury. Accordingly, moving the needle just a little bit on the date of injury can result in another defendant (or getting dismissed altogether).
In Cuevas v. A-1 Machine Manufacturing, both elements were in contention. Applicant was experiencing shoulder pain for three or four months and took roughly a week off (scattered days here and there) over the course of that period to rest his shoulder. In September 2016, he told his boss that he was taking time off work because the work activities were causing shoulder pain.
The claim thus reported, he alleged a cumulative trauma through September 2016 and later went on to have surgery almost a year afterward, in August 2017. Well, what’s the date of injury? Is it the first day he took time off work? When he told his employer about it in September 2016? Or when he went under the knife in August 2017?
The Court of Appeal in the Rodarte case defined “disability” as used by Labor Code Section 5412 to mean compensable disability, which means either some form of wage loss or permanent work restrictions.
In the Cuevas case, the trial judge held that the date of injury was August 2017 because that is the first date applicant received temporary disability benefits. Because there were no medical reports to substantiate temporary disability for the days taken off work prior to September 2016, the judge reasoned, there was no compensable disability for those dates, since temporary disability benefits would not have been due.
Likewise, there was no medical report suggesting that the modified work restrictions leading up to the August surgery were permanent, so there was no evidence of compensable permanent disability, either.
Accordingly, the first date of compensable disability would have been when applicant started receiving temporary disability benefits after the surgery. On reconsideration, the Workers' Compensation Appeals panel also added that merely showing applicant’s subjective belief that the injury was industrial was insufficient and noted that defendant “introduced no evidence that applicant had any specialized training or medical knowledge which would satisfy the requirements of Labor Code Section 5412.”
Between the judge and the WCAB, the conclusion was that defendant failed to move either date — disability or knowledge.
With respect to knowledge of industrial causation, that doesn’t seem to be the ruling from several other authorities. For example, in Alford v. Industrial Acci. Com., the California Supreme Court held that an injured worker’s subjective conclusions regarding the cause of his respiratory condition were sufficient to establish knowledge of industrial causation. Nielson v. WCAB reached the same conclusion as part of a Court of Appeal decision from 1985.
More recently, a panel held in Hilton v. County of Ventura that applicant’s subjective awareness of the industrial cause of her symptoms was sufficient, even without a medical report to that effect.
On the bright side, depending on where you end up on a petition for contribution or a petition for joinder, you might be grateful for this ruling.
Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.