ADJ10404221 · December 16, 2024

The WCJ failed to make findings on the period(s) of cumulative trauma injury, date of injury under Labor Code section 5412, and period of liability under Labor Code section 5500.5, requiring further development and deferral of these issues.

From the decision · page 11period June 30, 1994 to October 9, 2019, as a general manager, occupational group number: 212, at Burbank, California, by Camile's, Inc., claims to have sustained injury arising out of and in the course of employment to the cervical spine, thoracic spine, lumbar spine, cardiovascular system (in the form of hypertension) and psychiatric system. 2. The issue of what period(s) applicant sustained cumulative trauma injury is deferred. 3. The issue of the date of injury under Labor Code section 5412 is deferred. 4. The issue of the period of liability under Labor Code section 5500.5 is deferred. 5. All other issues are deferred.

The WCJ did not make findings on the period(s) of cumulative trauma injury, date of injury under Labor Code section 5412, and period of liability under Labor Code section 5500.5.

Favours Defendant prevailed

This lack of findings required the Appeals Board to grant reconsideration and defer these issues for further development.

From the decision · page 8As to the issue of the end date of the period of injurious exposure, the WCJ did not explain how he applied the foregoing authorities to find the period of cumulative trauma injury to the cervical spine, thoracic spine, and lumbar spine ended on October 9, 2019, in light of Dr. Hidaya's reporting that exposure to cumulative injury of the spine occurred during the period of January 1, 1994 to May 4, 2016, with the injury becoming permanent and stationary on August 15, 2017. (Report, pp. 1-5; Ex. T, Supplemental Report of Kinan Hidaya, D.C., February 19, 2022, pp. 2-3.)

Regular physician report supporting cumulative trauma injury period extended to October 9, 2019 for psychiatric system.

Report supports extension of cumulative trauma period to October 9, 2019.

From the decision · page 4However, pursuant to the Applicant's resignation letter dated September 27, 2019, [Defendant's Exhibit "AA"] the agreed medical evaluation report of Dr. Grodan dated February 6, 2023, [Defendants' Exhibit "V"] on page four, and Dr. Sones' regular physician report dated November 16, 2022, on page 25, [Defendants' Exhibit "Z"] the Applicant sustained an overlapping cardiological and psychiatric cumulative trauma injury during the period January 1, 1994 to October 9, 2019, extending the Applicant's concurrence of disability and knowledge to October 9, 2019.

Applicant sustained an orthopedic cumulative trauma injury during January 1, 1994 to May 4, 2016.

Report states cumulative trauma period for spine ended May 4, 2016.

From the decision · page 4The parties submitted into evidence the panel qualified medical evaluation chiropractic reports of Kinan Hadaya, D.C., and the agreed medical evaluation internal medicine reports of Paul Grodan, M.D. After deeming the record deficient, the undersigned WCJ ordered David Sones, M.D., to act as a regular physician in psychiatry.... [P]ursuant to the medical reports of Dr. Hadaya dated February 19, 2022, on page three, the Applicant sustained an orthopedic cumulative trauma injury during the period January 1, 1994 to May 4, 2016.

Agreed medical evaluation report indicating cumulative trauma injury period extended to October 9, 2019 for cardiological and psychiatric systems.

Report supports extension of cumulative trauma period to October 9, 2019.

From the decision · page 4However, pursuant to the Applicant's resignation letter dated September 27, 2019, [Defendant's Exhibit "AA"] the agreed medical evaluation report of Dr. Grodan dated February 6, 2023, [Defendants' Exhibit "V"] on page four, and Dr. Sones' regular physician report dated November 16, 2022, on page 25, [Defendants' Exhibit "Z"] the Applicant sustained an overlapping cardiological and psychiatric cumulative trauma injury during the period January 1, 1994 to October 9, 2019, extending the Applicant's concurrence of disability and knowledge to October 9, 2019.

Labor Code section 3208.1

Labor Code section 3208.1 defines cumulative injury and requires disability for cumulative injury to occur.

The WCJ must find the period of cumulative trauma injury based on disability and exposure.

From the decision · page 7Bd. (1974) 37 Cal.App.3d 81, 86-87 [39 Cal.Comp.Cases 137]; Aetna Cas. & Surety Co. v. Workmen's Comp. Appeals Bd. (Coltharp) (1973) 35 Cal.App.3d 329, 342-343 [38 Cal.Comp.Cases 720].) A cumulative injury is one that occurs as "repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment." (Lab. Code, § 3208.1.)

Labor Code section 5412

Labor Code section 5412 defines the date of injury for cumulative injuries as the date disability ripened and knowledge was or should have been acquired.

The date of injury is distinct from the period of exposure and must be found based on disability and knowledge.

From the decision · page 9But the period of exposure to cumulative injury is separate and distinct from the Labor Code section 5412 date of injury. Where permanent disability results from cumulative trauma, the injury occurs not at the time of exposure, but at the time the cumulative effect of the injury resulting from the exposure has ripened into disability. (Lab. Code, § 5412 (providing "[t]he date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment"); see also Federal Insurance Co. v. Workers' Comp. Appeals Bd. 221 Cal.App.4th 1116 [78 Cal.Comp.Cases 1257].) Whether an employee knew or should have known his disability was industrially caused is a question of fact. (City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal.App.3d 467, 471 [50 Cal.Comp.Cases 53]; Nielsen v. Workers' Comp. Appeals Bd. (1985) 164 Cal.App.3d 918, 927 [50 Cal.Comp.Cases 104]; Chambers v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 556, 559 [33 Cal.Comp.Cases 722].)

Labor Code section 5500.5

Labor Code section 5500.5 governs the period of liability and contribution among carriers for cumulative injuries.

The WCJ must determine the period of liability after finding the cumulative injury period and date of injury.

From the decision · page 10We have explained that the record requires further development as to the issue of what period(s) applicant sustained cumulative injury and the issue of the Labor Code section 5412 date of injury. Once the record as to these issues has been further developed, the WCJ may, as appropriate, determine the one-year period of cumulative injury under Labor Code section 5500.5(a), which may allow one defendant to seek Labor Code section 5500.5(e) contribution from a co-defendant. Accordingly, we will defer the issue of the Labor Code section 5500.5 period of liability.

Medical reports of Dr. Hidaya, Dr. Grodan, and Dr. Sones regarding cumulative trauma injury period

From the decision · page 4The parties submitted into evidence the panel qualified medical evaluation chiropractic reports of Kinan Hadaya, D.C., and the agreed medical evaluation internal medicine reports of Paul Grodan, M.D. After deeming the record deficient, the undersigned WCJ ordered David Sones, M.D., to act as a regular physician in psychiatry.... [P]ursuant to the medical reports of Dr. Hadaya dated February 19, 2022, on page three, the Applicant sustained an orthopedic cumulative trauma injury during the period January 1, 1994 to May 4, 2016.