Applicant was found to have three injuries and two separate periods of cumulative trauma
- Posted By: Harvey Brown
- February 1, 2019
This is a writ denied case
This is a very significant case for workers’ compensation principles.
In most cases the applicant has only one cumulative trauma. This case was different in that more than one cumulative trauma was found.
The applicant filed a cumulative trauma against an employer for the period of 1985 to 1995. The date of injury under Labor Code section 5412 was found to be in 1995, with Labor Code section 5500.5 going back one year from that date.
A specific injury was filed for 1993. Then a separate cumulative trauma was field against a different employer for 1996 to 2007. A date of injury was found under Labor Code section 5412 of 2006 when the applicant first missed time from work. Then 5500.5 was applied for the last year of employment.
At trial the Workers’ Compensation Judge (WCJ) found two separate cumulative traumas rather than a single cumulative trauma indicating defendants failed to raise the issue of a single cumulative trauma at trial.
The Workers’ Compensation Appeals Board (WCAB) affirmed the WCJ indicating the issue was not timely raised.
Additionally, they indicated that separate cumulative trauma injuries cannot be treated as a single cumulative trauma where there are separate periods of disability and separate periods of need for medical treatment.
- Posted In: Writ
Court of Appeal overturns WCAB decision on apportionment in published case
- Posted By: Harvey Brown
- January 1, 2019
This is a court of appeal case
This is a very significant case for workers’ compensation principles.
The applicant had a work related injury. The applicant saw private physicians that did not believe the applicants vision loss was work related. The Qualified Medical Examiner (QME) believed it was work related. However, he apportioned disability to a pre-existing condition.
After the doctor’s deposition he apportioned 15% to industrial and 85% to non industrial.
At trial the Workers’ Compensation Judge (WCJ) found the apportionment was not supported by substantial evidence and did not allow any apportionment. The defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ and indicated that the QME confused causation of injury with causation of disability. Therefore, no apportionment.
The appellate court reviewed Brodie, Zemke, Escobedo, etc. They also reviewed Labor Code section 4663 and 4664. The appellate court indicated the QME understood the distinction between cause of injury and cause of disability. It is not required that an asymptomatic condition become symptomatic to receive apportionment. It is only required that substantial medical evidence state that an asymptomatic condition was a contributing factor of disability. Here there was substantial medical evidence to allow apportionment.
- Posted In: Apportionment