ADJ10793276 · May 6, 2022

The Appeals Board found that the medical record was insufficient to determine whether there were one or two cumulative trauma injuries and to apportion permanent disability between them, requiring remand for further medical development.

From the decision · page 5In this case, in order to determine if applicant sustained one or two cumulative trauma injuries, and, if she sustained two injuries, the portion of applicant's permanent disability caused by each injury, we must return this matter to the trial level for further development of the medical

The medical record lacks substantial evidence on whether the applicant continuously required medical treatment linking the periods of temporary disability.

Favours neutral

This lack of evidence prevents the Board from determining if there were one or two cumulative trauma injuries and how to apportion permanent disability.

From the decision · page 6record. Given that the applicant had multiple surgeries and associated periods of temporary disability, one key question will be whether applicant had a continuous need for medical treatment as a result of the injury first reported in 2010 linking the periods of temporary disability. While the benefit printout provided by Zurich establishes that applicant received medical treatment on certain dates, there is no substantial medical evidence on whether applicant continuously required medical treatment.

Dr. Hatch evaluated the applicant multiple times and provided reports and depositions. She noted the applicant's employment history, symptoms, surgeries, and impairment ratings. She suggested apportionment of injuries on a pro rata basis based on years of employment but did not address apportionment between the two injuries.

From the decision · page 2After Dr. Laura Hatch was selected by the WCJ to act as an Independent Medical Evaluator (IME), the parties agreed to utilize her as an Agreed Medical Evaluator (AME) in this case. Dr. Hatch has issued multiple reports and was deposed twice.

Labor Code sections 3208.11 and 5412

Labor Code section 3208.11 defines cumulative industrial injury and Labor Code section 5412 defines the date of injury for cumulative injuries.

The Board applied these statutes to determine the date of injury and the nature of cumulative trauma injuries.

From the decision · page 3ANALYSIS Labor Code section 3208.11 provides that a cumulative industrial injury occurs whenever the repetitive physically traumatic activities of an employee's occupation cause any disability or a need for medical treatment. The date of injury for an industrial cumulative trauma injury is defined by Section 5412, as follows: "The 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." As used in Section 5412, "disability" means either compensable temporary disability or permanent disability. (Chavira v. Worker's Comp. Appeals Bd. (1991) 235 Cal.App.3d 463 [56 Cal.Comp.Cases 631]; State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998 [69 Cal.Comp.Cases 579].) Before addressing the current dispute, we must first address the August 19, 2019 Findings and Order wherein the WCJ found, in ADJ10870183, that applicant sustained an injury from

Labor Code section 5500.5

Labor Code section 5500.5 limits liability for cumulative injury claims to employers during a one-year period preceding the date of injury or last exposure.

The Board applied this statute to explain the limitation of employer liability for cumulative injuries.

Benson v. The Permanente Medical Group (2007) 72 Cal.Comp.Cases 1620

The Board cited this case to explain the need for apportionment of permanent disability between two injuries.

From the decision · page 6If applicant sustained two injuries, it is settled law that when two industrial injuries combine to cause permanent disability, the permanent disability caused by each must be separately awarded, unless the evaluating physician cannot parcel out, with reasonable medical probability, the approximate percentages to which each distinct industrial injury causally contributed to the employee's overall permanent disability. (Benson v. The Permanente Medical Group (2007) 72 Cal.Comp.Cases 1620 (Appeals Board en banc), affirmed sub nom. Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535 [74 Cal.Comp.Cases 113].) Prior to Benson, separate industrial injuries involving a common body part were routinely combined into a single award of permanent disability when they became permanent and stationary on the same date, in accordance with the holding of the Supreme Court in Wilkinson v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 491 [42 Cal.Comp.Cases 406 (Wilkinson).

Applicant had multiple surgeries and associated periods of temporary disability, raising the question of continuous need for medical treatment linking the periods of temporary disability.

From the decision · page 6record. Given that the applicant had multiple surgeries and associated periods of temporary disability, one key question will be whether applicant had a continuous need for medical treatment as a result of the injury first reported in 2010 linking the periods of temporary disability. While the benefit printout provided by Zurich establishes that applicant received medical treatment on certain dates, there is no substantial medical evidence on whether applicant continuously required medical treatment.