Workers’ Compensation is a Three-Card Monte Game to Find the Lady at the End of the Frame

In Case v. Union Dodge, Inc., 2023 Cal. Wrk. Comp. P.D. Lexis 94, a recent panel decision discussed how there can be more than one injury – specific, cumulative or a combination of both – resulting from the same or separate events.  Case, supra, involves a WCAB panel decision granting reconsideration and amending a prior opinion in which an Arbitrator found that applicant suffered a single period of cumulative trauma during one-year period preceding February 4, 2004.

In this case, Applicant had experienced right knee pain prior to 2004, which then continued leading up to a surgery on February 4, 2004. Applicant then returned to regular work in May of 2004. However, he experienced further pain in the right knee that led to a second surgery on September 30, 2004. Applicant then returned to work after his September 2004 second surgery in late November 2004, worked for about one week and sustained a specific injury to the right knee on December 4, 2004. He did not return to work thereafter.

Subsequently, the applicant settled with defendant, Everest, via a Compromise and Release. The applicant settled his claims, stipulating that while employed as a master automotive technician on December 2, 2004, and during a cumulative period ending on December 2, 2004, he sustained an industrial injury to his knees, psyche, internal, back, gastrointestinal system, lower extremities, feet, hernia, and hypertension. Applicant’s employer was insured by Arrowood for the calendar year 2003 and by Everest for the calendar year 2004. After the approval of the Compromise and Release, Everest instituted contribution proceedings against Arrowood.

Both defendants proceeded to arbitration and the arbitrator found two separate cumulative injury periods. Arrowood filed a Petition for Reconsideration arguing, among other things, that the arbitrator erred in finding two separate cumulative injury periods rather than the one cumulative claim alleged by Applicant and settled by Everest. In addition, Arrowood alleged that Everest was not allowed to relitigate the number of injuries in the contribution proceedings and that substantial medical evidence supported the finding of only one cumulative injury. Arrowood also contended its petition that the arbitrator should have found additional cumulative injuries subsequent to Everest’s coverage period for alleged subsequent cumulative injuries.

The WCAB agreed with Arrowood that the medical evidence supported a finding of only one cumulative trauma injury. The WCAB further concluded that per Labor Code Section 5500.5, the liability period for this cumulative injury was the one-year period preceding February 4, 2004. Since the WCAB found that the medical record supported only one cumulative injury, they did not decide whether Everest was legally barred from pursuing a second cumulative injury.

While granting reconsideration, the WCAB explained that both the Arbitrator and AME, on which Arbitrator relied, appeared to believe that based on prior law under Aetna Cas. & Surety Co. v WCAB (1973) 35 Cal. App. 3d 329, 110 Cal. Rprt. 780, 38 Cal. Comp. Cases 720, they were obligated to find separate injuries as matter of law because Applicant sustained distinct periods of disability. However, this was an outdated concept, as under the current law set forth in Western Growers Ins. Co. v. W.C.A.B (Austin) (1993) 16 Cal. App. 4th 227, 20 Cal. Rprt. 2d 26, 58 Cal Comp. Cases 323, the number of cumulative injuries was a question of fact based on medical history of the injured worker and the medical testimony received.

Thus, the WCAB concluded that the findings of the AME utilized in this matter did not constitute a medical conclusion but rather a legal opinion. In this case, the AME agreed that medically, it was logical to conclude that the applicant sustained one cumulative trauma injury, but he felt that he had to find two separate cumulative trauma periods as a matter of law because Applicant sustained two distinct periods of disability.

Therefore, the WCAB found only one cumulative injury. The WCAB also concluded that although Applicant’s injurious exposure lasted until December 2, 2004, per Labor Code Section 5412, the date of injury was on February 4, 2004. Thus, the Labor Code section 5500.5 period for the cumulative injury is the one-year period preceding February 4, 2004.

By Victora Alexeeva, Esq., Associate Attorney, San Francisco Office June 2023

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