California: Election by Employee in Cumulative Injury Case

A recent noteworthy Board panel decision discusses elections by the employee in cumulative injury cases. Reminder: Board panel decisions are not binding precedent. Our headnote reads:

Lorenzo Arevalo, Applicant v. Limoneira Company, Inc., Main Limoneira Co., Zurich American Insurance Company administered by Gallagher Bassett Services, Inc., Defendants

W.C.A.B. Nos. ADJ14549823, ADJ14549350—WCJ Sandra Rosenfeld (VNO); WCAB Panel: Commissioners Razo, Snellings, Deputy Commissioner Schmitz

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed April 27, 2022

Publication Status:  CAUTION: This decision has not been designated as a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision, as these decisions are subject to appeal. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)].  LexisNexis editorial consultants have deemed this panel decision noteworthy because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.

Disposition:  The Petition for Removal is denied.

Cumulative Injury—Election by Employee—WCAB, denying removal, affirmed WCJ’s order approving applicant’s election against defendant Zurich American Insurance Company/Gallagher Bassett (Zurich) in claim involving cumulative injury to his knee during period 1/1/2004 through 2/28/2020, when both Zurich and co-defendant California Insurance Company/Applied Risk Services (Applied Risk) had coverage for portions of cumulative injury period, and WCAB found that fact that Applied Risk had majority of liability for applicant’s claim based on period of coverage did not preclude applicant’s election against Zurich to administer claim, when WCAB, distinguishing panel’s decision in Barillas v. Cellar Masters, Inc., 2014 Cal. Wrk. Comp. P.D. LEXIS 452 (Appeals Board noteworthy panel decision), concluded that though carrier’s share of liability based on length of coverage is one factor to consider in determining proper carrier to administer claim absent other “compelling reasons,” additional factors must also be considered in selecting carrier to administer claim, that in this case there were compelling reasons to elect against Zurich over Applied Risk despite Zurich’s shorter period of coverage, on basis that Zurich had coverage on two denied claims (applicant’s cumulative injury and 2/27/2020 specific injury) and had already obtained evaluation from panel qualified medical evaluator (PQME), who found compensable cumulative injury, and that because liability for applicant’s cumulative injury was clear based on PQME’s report and pursuant to Labor Code §§ 5412 and 5500.5, there was no reason for Applied Risk to obtain additional medical reports and further delay applicant’s receipt of benefits. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 26.01[2][c], 26.03[4], 31.13[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[1][d][v], Ch. 15, § 15.15, Ch. 19, § 19.37.]

PDF below.

Reminder: Board Panel Decisions are not binding precedent.

© Copyright 2022 LexisNexis. All rights reserved.