Case BriefCIGAWCAB Clarifies When Applicant Sustains Successive Cumulative Traumas

March 10, 20160


(2015) 2015 Cal. Wrk. P.D. Lexis 662

Applicant was employed as a machine operator from 1998 through August 29, 2001. He alleged injury to his back as well as several internal medicine and a psych issues. The injuries were pled as both a specific injury (August 17, 2000) and cumulative trauma (through August 15, 2000). Following trial, the Workers’ Compensation Judge found cumulative trauma, but no specific injury. He awarded 72% permanent disability.

Defendant was insured during the applicant’s employment by both Pacific National and Highlands Insurance. Pacific National was in liquidation and its obligations were administered by CIGA.

CIGA filed a Petition for Reconsideration of the Findings and Award, arguing that there should have been a finding of two separate cumulative trauma. This would result in joint and several liability as between CIGA and the solvent insurer (Highlands) and CIGA would be dismissed under Insurance Code §1063.1.

The Board Panel reviewed the cases and Code Sections defining cumulative trauma and dates of injury including Coltharp and Western Growers. They noted that “If after returning to work from a period of temporary disability and need for medical treatment, the employee’s repeated work activities again result in injurious trauma (new period of temporary disability or new or increased level of permanent disability or need for medical treatment), then there are two separate and distinct cumulative trauma, injuries. However, if the employees occupational activities after returning to work are not injurious, there is only a single cumulative trauma.

In this case, the applicant’s testimony and medical records showed he developed back pain which required medical treatment on August 17, 2000. He was taken off work for four days. Therefore, there was evidence of a cumulative trauma August 17, 1999 through August 17, 2000.

The evidence also showed that after returning to work he continued to do the same job duties until November 2000 when he went to jail for three months. After his release, he returned to work. He reported worsening symptoms for which he sought medical treatment and was given work restrictions. The employer could not accommodate the restrictions and the applicant’s last day of work was August 29, 2001. Therefore, the evidence supported a second date of cumulative injury, for the period August 29, 2000 through August 29, 2001.

The Petition for Reconsideration was granted and the matter was returned to the trial Judge in order to address the issue of apportionment between the two dates of injury (Benson) and to address liability as between CIGA and Highlands.

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