25 Jan 2017

California: When the “Date of Injury” Becomes a Moving Target

The California Labor Code distinguishes between two different types of industrial injuries, a specific injury and a cumulative trauma (CT) injury. This is not the case in other states where their law recognizes only specific injuries. However, there is great justification for allowing workers’ compensation benefits to be bestowed on an employee who suffers a repetitive trauma injury over a number of years, months or even a number of weeks.

(Publisher’s Note: Citations link to Lexis Advance.)

Labor Code § 3208.1 “An injury may be either:

(a) ‘specific,’ occurring as the result of one incident or exposure which causes disability or need for medical treatment; or

(b) ‘cumulative,’ occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment. The date of a cumulative injury shall be the date determined under Section 5412.”

I. Labor Code § 5412 Determines Date of CT Injury for Triggering Statute of Limitations

The two most common types of cumulative traumas are carpal tunnel syndrome (CTS) and injuries to the low back, but there are many other types as well. There is not usually much confusion as to the “date of injury” for a specific injury. However, the results can be all over the map, when trying to pin down the “date of injury” for a cumulative trauma. As stated above, Labor Code § 3208.1 states that the date of a cumulative trauma injury shall be determined in accordance with Labor Code § 5412 that provides as follows:

“The date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability there from and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment.”

II. Labor Code § 5500.5 Determines Date of CT Injury for Carrier Liability Purposes

As stated above, Labor Code § 5412 determines the date of the CT injury, which triggers the statute of limitations for the applicant. However, Labor Code § 5500.5 provides a different formula for determining the date of a CT injury with regard to which insurance carrier is liable for the workers’ compensation benefits.

Labor Code § 5500.5 provides, in part:

> Liability is “…limited to those employers who employed the employee…” during a period of one year “…immediately preceding either the date of injury, as determined pursuant to Section 5412,” or

> “the last date on which the employee was employed in an occupation exposing him or her to the hazards of the occupational disease or cumulative injury,”

> “…whichever occurs first.”

III. Applicant May Have Two Different Dates of Injury for the Same CT claim

To summarize, Labor Code § 3208.1 explains that the date of injury for cumulative traumas (CT), which determine when applicant’s statute of limitation is triggered and governed by Labor Code § 5412. That would be when the applicant has both disability PLUS knowledge that his or her disability is work related.

Labor Code § 5500.5 on the other hand explains what the CT date of injury would be with regard to determining carrier liability (either applicant’s “last injurious exposure” OR the date determined by Labor Code § 5412, whichever date arrives first).

It is therefore quite possible for an injured worker’s single cumulative trauma claim to have two totally different dates of injury, given the “inextricably intertwined” language of Labor Code §§ 3208.1, 5412 and 5500.5. This fact situation is illustrated below, in the Noteworthy Panel Decision (NPD) of Pfundstein v. Hendrickson Trucking, 2016 Cal. Wrk. Comp. P.D. LEXIS 403.

A. Facts of the Case

When Michael Pfundstein began working as a truck driver for Henrickson Trucking in 2007, he had no symptoms of Carpal Tunnel Syndrome (CTS). However, after about four months into his work with Henrickson Trucking, he developed pain in his wrists. He was diagnosed with CTS and received appropriate medical treatment, which he self procured. He continued working for Henrickson Trucking, but during this period of time, he did not file a workers’ compensation claim, since Michael did not realize his CTS was work related.

In 2013, Michael was evaluated for an industrial back injury by a QME who noticed Michael was experiencing CTS symptoms in his wrists. The QME suggested that Michael discuss this painful wrist condition with his workers’ compensation attorney, and suggested it might be work related. This was the first time Michael became aware that his CTS might be industrial. He promptly filed a workers’ compensation claim on 10/3/2013, and then filed an Application for Adjudication the following day.

In his report of 7/11/2015, the QME in the CTS case, Dr. Weinmann confirmed that Michael sustained a cumulative trauma of CTS while working for Henrickson Trucking.

B. Application of the Law to the Facts

At trial, the judge determined that Michael’s CT ended on 10/3/2013, since that was the day Michael had both disability and knowledge that his disability was industrial, pursuant to Labor Code § 5412. However, for purposes of carrier liability, the judge determined the carrier for Henrickson Trucking was liable, since date of the CT injury under Labor Code § 5500.5 would be 8/8/2008, the date of “last injurious exposure.”

Defendant filed a Petition for Reconsideration claiming no responsibility for the CTS injury. Since the date of injury was a CT ending 10/3/2013, and Michael was not employed by Henrickson Trucking on 10/3/2013, the defendant argued it could not possibly be liable. And even if they might have some liability for a CTS injury during Michael’s employment in 2008, his workers’ compensation claim would be barred by the one-year statute of limitations.

The WCAB affirmed the judge and explained, that CT date of injury ending 10/3/2013 was the correct date for statute of limitations purposes, since that was the first time that Michael realized his CTS was work related. Under the applicable Labor Code § 5412, the date of 10/3/2013, was the date when IW had both disability and knowledge that his CTS injury was work-related. That “concurrence of disability with knowledge” suffices under Labor Code § 5412 to trigger the statute of limitations and to result in a determination that applicant sustained a CT ending 10/3/2013. Since Michael filed his Application on 10/4/2013, he is not barred from workers’ compensation benefits for his CTS injury by the one-year statute of limitations.

On the other hand, with regard to date of injury for carrier liability, Labor Code § 5500.5 would be controlling. Again, the WCAB held the judge was correct in finding that 8/8/2008 was the date of “last injurious exposure.” Since this is an earlier date, than the date of injury per Labor Code § 5412 (which was 10/3/2013), Labor Code § 5500.5 mandates that 8/8/2008 is the applicable date of CT injury for carrier liability. It was therefore appropriate to hold defendant liable for Michael’s workers’ compensation benefits for his cumulative trauma CTS injury.

IV. Is the Date of Injury Determination a Medical Issue or a Legal Issue?

Another issue that has presented itself recently is whether the date of injury determination is a medical determination or a legal determination. This was discussed in the recent NPD of Webb v. The Vintage Club, 2015 Cal. Wrk. Comp. P.D. LEXIS 675.

A. Date of Injury for Statute of Limitations Purposes – Labor Code § 5412

Stefanie Webb was an accounts payable clerk for “The Vintage Club.” She was diagnosed with Carpal Tunnel Syndrome (CTS) in 2005. At that time, in 2005, she received cortisone shots for her CTS symptoms and she wore wrist braces while at work to ease her pain. She continued her usual and customary work duties and did not report any type of work injury.

On 4/14/2009, Stefanie pushed down on a stapler with both hands. This action sent severe radiating pain up both of her arms. She reported her injury, stopped work for the day and saw a physician. Her doctor explained that her CTS (which had been diagnosed four years previously) was work related and he eventually recommended and performed CTS release surgery.

What is the applicable date of injury that would trigger Stefanie’s statute of limitations for filing a workers’ compensation claim? Would it be 2005 when she was diagnosed with CTS? Or would it be 2009 when she first learned her CTS was work related? As stated above, for purposes of the applicable date of injury for triggering the statute of limitations, the Labor Code § 5412 would be controlling. It would be the date she had disability from her CTS and knowledge that her CTS was industrial.

Stefanie didn’t know her injury was work-related until her physician told her in 2009. Therefore, under Labor Code § 5412, 4/14/2009 would be the end date of her cumulative trauma, since that was the date when Stefanie had both disability from her CT and knowledge that her CT was work-related.

B. Date of Injury for Carrier Liability – Labor Code § 5500.5

The next question would be which carrier is liable for payment of Stefanie’s workers’ compensation benefits? Again, as stated above, for purposes of determining the applicable date of injury for triggering liability, Labor Code § 5500.5 would be controlling.

Stefanie worked for the same employer, “The Vintage Club,” since 2001. However, the employer’s insurance carriers during this period were as follows:

4/1/2001 – 3/27/2006 – Federal Insurance Company

4/1/2006 – 3/31/2008 – Pacific Compensation

4/1/2008 – 3/31/2009 – Insurance Company of the West (ICW)

4/1/2009 and continuing – Fireman’s Fund

If the date of injury was determined to be a CT ending in 2005, Federal Insurance Company would be liable. If the date of injury was determined to be a CT ending 4/19/2009, then ICW would be the primary carrier, liable for Stephanie’s workers’ compensation benefits.

C. Is Labor Code § 5500.5 date of injury determination a “legal” or “medical” question?

The facts of the Webb NPD present an interesting question. Is the determination of a Labor Code § 5500.5 date of injury a “legal” or “medical” question? In Stephanie’s case, the PQME, Dr. Styner, determined that there was one period of CT which ended in 2005. So if the Labor Code § 5500.5 determination was a medical question, then the date of injury would be 2005, and Federal Insurance Company would be the liable entity. This is what the dissenting WCAB commissioner would have found.

However, the judge analyzed this issue as a legal one and made the determination that the evidence indicated injurious work-related exposure for Stephanie continued until April of 2009. The majority of WCAB commissioners affirmed the judge. They concluded the issue was a legal one, and not medical. Therefore, Insurance Company of the West (ICW) bore the majority of liability in this case.

The WCAB used a similar analysis in the NPD of Gonzalez v. Jezowski & Markel Contractors, Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS 348. In that case, the arbitrator determined the CT date of injury under Labor Code § 5412 to be based on the medical evidence. It was the determination of the parties’ AME in the case, Dr. Jackson, that the CT ended 11/22/2013, and that applicant was barred by the one year statute of limitations from pursuing his workers’ compensation benefits. However, the WCAB overturned the arbitrator’s determination, and found the determination of the Labor Code § 5412 CT date of injury to be a legal issue. The WCAB found that pursuant to Labor Code § 5412 the “concurrence of disability and knowledge” did not occur until applicant’s back surgeon, Dr. Chambi, told him his back injury was industrial on 5/30/2014. Therefore, applicant was not barred by the statute of limitations from collecting his workers’ compensation benefits.

V. Conclusion

When litigating cumulative trauma injuries, it is incumbent on all practitioners to make sure they have accurate timelines of all relevant events for the application of the controlling statutes. As in most things, timing is everything.