By Gregory Grinberg
Wednesday, March 31, 2021 | 26 | 0 | min read
Cumulative trauma is tricky things at times.
Gregory Grinberg
Pursuant to Section 5412 of the California Labor Code, the Date of Injury to Cumulative Trauma is the first date on which there is a disability and knowledge of the industrial causes. Both disability and knowledge can be moving parts (and moving targets) in an employee compensation case.
Depending on the factual pattern, the stakes are sometimes particularly high as Section 5500.5 of the Labor Code establishes liability for a CT for all employers (or insurers) involved in the 52 weeks prior to the date of the injury. Accordingly, a slight movement of the needle at the time of injury may result in another defendant (or dismissed altogether).
In Cuevas v. A-1 Machine Manufacturing, both elements were controversial. The applicant had shoulder pain for three or four months and took about a week off (occasional days here and there) to rest his shoulder during that period. In September 2016, he informed his boss that he was taking time off because the work activities were causing shoulder pain.
According to the allegation, he claimed he suffered cumulative trauma until September 2016 and later, almost a year later, in August 2017, he underwent surgery. Well what is the date of the injury? Is it the first day he took off? When he told his employer about it in September 2016? Or when he went under the knife in August 2017?
The Rodarte Court of Appeal defined “disability” within the meaning of Section 5412 of the Labor Code as a compensatory disability which means either some form of loss of wages or permanent work restrictions.
In the Cuevas case, the trial judge found that the date of the infringement was August 2017, as that is the first date the applicant received temporary disability benefits. As there were no medical reports proving temporary disability for the days prior to September 2016, the judge believed that there was no disability for which compensation was payable for this data, as temporary disability benefits would not have been due.
Likewise, there was no medical report indicating that the changed work restrictions that led to the operation in August were permanent, so there was no evidence of a compensable permanent disability either.
Accordingly, the first indemnifiable disability date would have been when the applicant received temporary disability benefits after surgery. On re-examination, the Employee Compensation Appellate Body added that it was insufficient to merely show the applicant’s subjective belief that the infringement was industrial and found that the defendant “has provided no evidence that the applicant had any has specific training or medical knowledge that meets the requirements of Labor Code 5412. ”
The judge and the WCAB concluded that the defendant did not postpone the date, obstruction, or knowledge.
In terms of knowledge of industrial causation, this does not appear to be the decision of several other authorities. For example in Alford v. Industrial Acci. The California Supreme Court ruled that an injured worker’s subjective conclusions about the cause of his respiratory disease were sufficient to establish knowledge of the industrial causes. Nielson v WCAB came to the same conclusion in a 1985 appeals court ruling.
More recently, a panel in Hilton v. County of Ventura found that the complainant’s subjective awareness of the industrial cause of her symptoms was sufficient, even in the absence of a medical report.
On the plus side, depending on where you are applying for a contribution or an application to join, you might be grateful for that decision.
Gregory Grinberg is the managing partner of Gale, Sutow & Associates’ SF Bay South office and a certified employee compensation law specialist. This post was reprinted with permission from Grinberg’s WCDefenseCA blog.
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