Court of Appeal indicates that 5500.5 may not apply with a prior injurious exposure
- Posted By: Harvey Brown
- May 1, 2018
This is a published appellate decision
This is a very significant case for workers’ compensation principles.
The applicant was a firefighter for the City of South San Francisco from 1973 to 2001. Thereafter, he worked for the City of Pacifica from 2001 on. He was exposed to known carcinogens during each employment. The cancer manifested itself in 2005 causing disability in 2007.
The applicant filed a cumulative trauma against Pacifica the last employer. Pacifica denied liability and joined the City of South San Francisco for the prior employment. The City of South San Francisco settled with the applicant for the entire period of both employments and sought contribution from Pacifica.
The case went to an arbitrator for contribution. The arbitrator ruled that section 3212.1 and 5500.5 governed. The arbitrator indicated you also look at section 5412 for date of injury.
In this case the arbitrator found there was a latency period that made harmful exposure in 1996 or 1997. This was during the first employers coverage. Based on this the arbitrator found liability on the first employer and not during the last year of employment under 5500.5.
The city of South San Francisco petitioned for reconsideration. The Workers’ Compensation Appeals Board (WCAB) agreed with the arbitrator. It was then appealed to the appellate level.
The appellate court reviewed 3212.1 and 5500.5 and they indicated the arbitrator ruling was correct based on the latency period.