What the panel ordered
Findings and Award of April 25, 2024 affirmed with non-substantive technical amendments; liability assigned to California Insurance Guarantee Association for injury period 1/1/1996 to 1/1/1997
Petition for Reconsideration granted; Decision After Reconsideration issued affirming and amending the WCJ's Findings and Award of April 25, 2024
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The WCJ's finding that the period of injurious exposure was from January 1, 1996 to January 1, 1997 was supported by credible testimony of the applicant, a co-employee's declaration, and medical expert opinions, which the WCAB adopted and affirmed on reconsideration.
From the decision · page 1Defendant California Insurance Guarantee Association (CIGA) seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Award of April 25, 2024, wherein it was found that while employed by the Zoological Society of San Diego during a cumulative period ending January 1, 1997, applicant sustained industrial injury in the form of myeloma. It was found that the sole carrier insuring the employer during the Labor Code section 5500.5 liability period was Fremont Insurance Company. On July 2, 2003, Fremont went into liquidation, and CIGA took over its California claims. CIGA is an entity created by statute in 1969 to create a fund from which insureds can seek recourse if their insurer becomes insolvent. CIGA is not an insurance company, but is required to pay statutorily defined covered claims. (Industrial Indemnity Co. v. Workers' Comp. Appeals Bd. (Garcia) (1997) 60 Cal.App.4th 548, 556-557 [62 Cal.Comp.Cases 1661].) In the instant case, it was found that CIGA was solely liable for any benefits due to the applicant as a result of the industrial injury.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant was exposed to benzene and other chemicals from 1970 to 1996, with direct work until 1983 and indirect exposure until 1997
Favours Applicant prevailed
This exposure period supported the finding of injurious exposure ending January 1, 1997, which determined liability to CIGA
From the decision · page 4The evidence presented at trial demonstrated that the applicant was exposed to benzene and 2,2,4-Trimethylpentane while employed with UCSD from 1970 to 1976 in her work as a laboratory technician in the endocrine department at UCSD. She was exposed to the same chemicals at the Zoological Society of San Diego where she worked as a laboratory technician in the Department of Reproductive Medicine from 1976 to 1983, and then as a supervisor where she had a desk in the laboratory to 1996. In 1996 they moved her desk to another area outside the laboratory. During that period, they used chromatography as a separation tool. She used Benzene, Hexane, cyclohexane, ether, and scintillation fluid. The feces and urine samples were placed in test tubes into which the chemicals were poured, and, following immunoassay, scintillation fluid was used in all the tubes. She did not work under a hood, and there were no masks or gloves. She was exposed to benzene and other chemicals 100% of the time. The applicant stopped working with the chemicals in 1983 as she had developed another methodology for doing the chromatography. However the applicant's desk was in the laboratory at that time where other workers were working with the chemicals until her desk was moved out of the laboratory in 1996. (MOH/SOE 2/13/2024 the applicant testimony 5:20-6:22).
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Opined that exposure to benzene caused the multiple myelomas and latency period was 1-40 years with median 35 years.
Supported the finding of injurious exposure period and causation of multiple myeloma by benzene exposure.
Opined that the period of injurious exposure ended in 1997 and benzene exposure contributed to multiple myeloma.
Supported the finding of injurious exposure period and causation of multiple myeloma by benzene exposure.
Agreed with other experts that exposure to benzene contributed to multiple myeloma; latency period 4-30 years prior to 2013.
Supported the finding of injurious exposure period and causation of multiple myeloma by benzene exposure.
Opined that the period of injurious exposure ended by 1997 based on applicant history and co-employee declaration.
Supported the finding of injurious exposure period and causation of multiple myeloma by benzene exposure.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
California Labor Code
Labor Code Section 5500.5
Determines the period of injurious exposure for cumulative trauma claims
From the decision · page 1Defendant California Insurance Guarantee Association (CIGA) seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Award of April 25, 2024, wherein it was found that while employed by the Zoological Society of San Diego during a cumulative period ending January 1, 1997, applicant sustained industrial injury in the form of myeloma. It was found that the sole carrier insuring the employer during the Labor Code section 5500.5 liability period was Fremont Insurance Company. On July 2, 2003, Fremont went into liquidation, and CIGA took over its California claims. CIGA is an entity created by statute in 1969 to create a fund from which insureds can seek recourse if their insurer becomes insolvent. CIGA is not an insurance company, but is required to pay statutorily defined covered claims. (Industrial Indemnity Co. v. Workers' Comp. Appeals Bd. (Garcia) (1997) 60 Cal.App.4th 548, 556-557 [62 Cal.Comp.Cases 1661].) In the instant case, it was found that CIGA was solely liable for any benefits due to the applicant as a result of the industrial injury.
What proof carried it
The evidence the panel weighed, by kind.
Credible testimony of applicant
From the decision · page 3The dispute in this case is the period of injurious exposure pursuant to Labor Code Section 5500.5. The WCJ found the period of injurious exposure to be January 1, 1996 to January 1, 1997 based on the fully credible testimony of the applicant, the declaration of Gregory Fetter (a co-employee and lab technician with the Zoological Society and the opinions of the medical doctors. Unfortunately, this period implicated only CIGA for liability to the industrial injury. Unfortunately, the trial took place 18 years after the applicant last date of work in 1996, with multiple changes in exposure and techniques during the period of the various employments. However, the WCJ relied on the concurrence between the testimony of the applicant and the evidence, including medical reports in this case. The Findings and Award issued April 25, 2024. It from this Finding and Award that CIGA has filed its timely, verified appeal.
Declaration of co-employee Gregory Fetter supporting exposure period
Medical expert opinions supporting exposure period and causation
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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