CIGA Cannot Be Dismissed Prior To Determination Of Date Of Injury

In a pair of cases that were determined by the Workers’ Compensation Appeals Board (WCAB) it was determined that the California Insurance Guarantee Association (CIGA) could not be dismissed before underlying issues were determined.

This involves two cases that were combined into a single Decision After Reconsideration by the WCAB. Both cases stem around the same issue.

One case involved a cumulative trauma in which there was an insurance carrier as well as CIGA during the period of alleged cumulative trauma. CIGA petitioned to be dismissed on the basis there was “other coverage” within the meaning of Insurance Code section 1063.1 ©(9).  The Workers’ Compensation Judge (WCJ) issued a Notice of Intention to dismiss CIGA and then dismissed CIGA from which the insurer moved to vacate.

In the second case with a different applicant the WCAB reviewed two specific injuries. In one of the specific injuries there was a potential for a general and special employment issue. The insurance company involved alleged that the employee was provided by a temporary agency for a temporary assignment. Therefore, the insurance carrier alleged that a special employment issue existed under Insurance Code section 11663. CIGA asserted that the applicant was an employee of the personnel agency and should therefore be dismissed under Insurance Code 1063.1 © (9).

The WCJ in this case dismissed CIGA on the basis that Insurance Code 11663 applied only between “insurers” and not between employers.

The WCAB combined both of these cases for this decision. CIGA relied on Industrial Indemnity Co. V WCAB (Garcia) (1997) 62 CCC 1661. However, the WCAB indicated that case did not involve a dispute regarding the date of injury versus the date of last injurious exposure, or other threshold issue.

In these two cases the WCAB determined that there are underlying issues which if determined adversely against CIGA would establish liability against CIGA. The date of injury under Labor Code section 5412 needs to be determined before Labor Code section 5500.5 can be applied. Likewise, the issue of employment must be determined before CIGA can be dismissed.

Case: Manuel Manzano V. Flavurence Corporation

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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