How Do You Properly Use Labor Code Section 5500.5?

The predominate theory in the industry is that you still use Labor Code section 5500.5 as was done in the past This theory is that you take the last year of the applicant’s employment or injurious exposure and figure out who had coverage in that last year. That would determine the responsible carrier. Nothing could be further from the truth.

Even though Western Growers v. WCAB (Austin) 58 CCC 323, was decided in 1993, many defendants and applicants attorneys are not paying heed to this significant ruling.

Two carriers were involved. The applicant was a farm worker who began working in 1962. In 1985, the applicant had major depression and was hospitalized during carrier number one’s coverage. The applicant did not become disabled until March of 1987 during carrier two’s coverage. The applicant was not P & S until February 1991. The WCJ found one cumulative trauma for the entire employment even though four cases had been filed.

The Court first indicated that”… if an employee becomes disabled, is off work and then returns to work only to become disabled, there is a question of fact as to whether the new disability is due to the old injury or whether it is due to anew and separate injury.”

The Court interpreted Labor Code sections 3208.1, 3208.2 and 5412 and how they applied to 5500.5. “Under section 3208.1, an injury causing a need for medical treatment is compensable even in the absence of disability.” 3208.2 deals with the combination of injuries and not the periods of disability. The Court reviewed the legislative intent of 3208.2 which was adopted to not allow the merger of past specifics into a cumulative trauma.

The Court distinguished Aetna v.  WCAB on the basis that there were two periods of disability without a compensable injury. In Austin there was two periods of disability linked by the continued need of treatment.

The Court reviewed 5412 and stated the date of a cumulative trauma is the date the applicant first has a disability that he or she knows is work related. The Court went on to state that where there is but one cumulative trauma, “…liability for the entire injury is imposed on the carrier who provided coverage during the year immediately preceding the date of injury or the date of last exposure, which ever occurs first” Under the set of facts in Austin, die first carrier, thus, became the responsible carrier under Labor Code section 5500.5. The reason for this decision is that the date of injury was determined to be under the first carrier’s coverage.

Thus, one must look to whether there is a single cumulative trauma and apply the Austin case looking at the date of injury. If not, look to whether mere are two separate cumulative traumas of specifics and apply the Aetna case.

Case: Western Growers V. W.C.A.B. (Austin)

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

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