When Does The Date Of A Cumulative Trauma Begin?

A new case not published in the official reports has solidified the opinion previously held in Western Growers Ins. Co. V. WCAB.

The applicant had neck and shoulder pain beginning in June of 1992 and was given pain pills by her manager.  She continued to have problems until she informed her employer of the industrial nature of her problem in June of 1994. A chiropractor placed her on light duty by letter dated June 15, 1994, and the employer actually placed her on light duty no later than June 18,1997. The applicant continued to work until August 19, 1994 when she was terminated.

The applicant thereafter, filed a cumulative trauma alleging injury from March of 1992 through her last date of employment of August 19, 1994. The workers’ compensation judge found injury for the entire period o f employment but divided liability between two carriers based on the last year of employment: An appeal was made on the basis of Labor Code section 5500.5 (a) and Labor Code section 5412. which defines the date of injury.

“In finding which employer, or period of employment, and carrier is liable for a cumulative injury, it must be determined pursuant to section 5500.5, subdivision (a) whether the date of injury according to section 5412 or the last date of exposure occurred first…  The date of injury for cumulative injuries according to section 5412 is when an employee first suffers disability and knew, or in the exercise of reasonable diligence should have known, it was caused by employment.

This court stated that a finding of temporary or permanent disability is sufficient for a finding of disability under section 5412. The court implied that if the applicant was off work for more than 3 consecutive days, this would be sufficient to establish a date of disability under 5412. Thus, the ending of the cumulative trauma under 5500.5 could be significantly before the ending date of employment

The court went on to say you do not even need wage loss to establish disability under section 5412. In this case, placing the applicant on “light duty” was sufficient to establish disability under section 5412. The court goes on to state that medical treatment alone is enough to establish disability under section 5412.  However, they clarify that giving pain medication alone is not sufficient to qualify. The medical treatment must be significant. What is significant medical treatment will be decided in the future on a case by case basis.

The lesson to be learned from this case is the ending of the cumulative trauma is not as easy as believing what is pled on the application or claim form.

Case: Republic Indemnity V. W.C.A.B. (Hollis)

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

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