California: Dividing Up Injuries Based on Date of Knowledge

SPECIAL ALERT: On May 26, 2017, the WCAB, on its own motion, issued an order granting reconsideration for further study and decision in the Gravlin case. For the latest news about Gravlin, subscribe to our newsletter at www.lexisnexis.com/wcnews (select California Edition).

In Gravlin v. City of Vista, 2017 Cal. Wrk. Comp. P.D. LEXIS 133, applicant, a fire fighter for some 27 plus years, developed both skin cancer and a cardiovascular injury in the course and scope of his employment. He was seen by two QME’s, both of whom found that due to legal presumptions for firefighters (Labor Code Sections 3212 and 3212.1) that injury was industrial. The total impairment from the two injuries was 74%.

Defendant asserted that because of the “anti-merger doctrine” (apparently referring to Labor Code Section 3208.2), the two injuries should be provided with separate stipulations. Applicant’s attorney argued against this, relying upon the Ott Decision (City of Anaheim v. Workers’ Comp. Appeals Bd. (Ott) (2010) 75 Cal. Comp. Cases 371 (writ den.).) In that case, the court found that because applicant worked without disability until the job ended and the period of injurious exposure was continuous throughout employment, there was no justification to create two different continuous traumas. Instead, the injury remained as one CT. Defendant relied upon the Coltharp Decision (Aetna Cas. & Surety Co. v. Workmen’s Comp. Appeals Bd. (Coltharp) (1973) 35 Cal. App. 3d 329, 38 Cal. Comp. Cases 720). In that decision, because there were two separate and distinct periods of disability, the court did find two separate injuries rather than one.

On the single issue as to whether the impairment should be separated or combined, the matter went to Trial. The Judge found that the “anti-merger doctrine” had nothing to do with the facts on hand. That doctrine “prevents the ‘merger’ of specific injuries within the CT from being ‘merged’ into the CT claim.” Furthermore, the Judge found the defendant’s argument simply untenable. If the defendant’s position were accepted, the Judge opined that any continuous trauma with multiple body parts would be subject to separation and separate ratings. The Judge reiterated that in the case at hand, there was no medical evidence to suggest different periods of injurious exposure to different body parts. On Reconsideration two of the panelists focused primarily on Labor Code Section 5412. Because applicant had notice of injury for the different body parts on different dates, the Commissioners distinguished the case from Ott. Based on the date of knowledge, they opined that each of the body parts had a separate period of injury. Commissioner Newman dissented. He noted the Labor Code Section 5412 is only utilized for statute of limitations purposes. He further noted that there was no evidence that the injurious exposure was different with regards to both the skin and the heart – mainly applicant’s entire period of employment.

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Commentary:

This area of the law can be very confusing to many attorneys. Labor Code Section 5412 defines date of injury for statute of limitation purposes as the date that knowledge and disability both exist. This is especially relevant with continuous trauma claims wherein the law, as it is currently practiced, allows for the statute of limitations not to run, even if the claim is filed more than a year after the physical injury actually occurred. The reason is that knowledge of continuous trauma claims is not well-known among the populous and applicants may become first aware of continuous trauma postemployment. As to when Coltharp applies, it usually hinges on whether there was a significant period of separation as between periods of injury. In other words, if someone is permanent and stationary (or MMI) and remains so for a lengthy period of time before suffering additional injury, two continuous trauma claims will generally be found. [Note: The doctrine of “inextricably intertwined” as per Benson v. Workers’ Comp. Appeals Bd. (2009) 170 Cal. App. 4th 1535, 74 Cal. Comp. Cases 113, may still be operative nonetheless.]

When it comes to multiple body parts on a continuous trauma claim, it is not unusual for there to be different dates of knowledge but that does not necessarily turn the claims into a separate injury for each and every body part. The same is also true when one body part heals before another one on the same CT claim. The fact that there are different dates of permanent and stationary or MMI status does not necessarily turn a CT with multiple body parts into multiple injury dates.

Another reason why continuous trauma claims are particularly confusing is because of Labor Code Section 5500.5. The reason for this unique Labor Code Section is that at one time continuous traumas were very messy and even more difficult to litigate than they are today. When there are too many defendants in the room, everyone wants a report, and lawyers do what lawyers do, litigate. In order to make continuous traumas more manageable, Labor Code Section 5500.5 limited the liability to the last year of injurious exposure preceding the date found by Labor Code Section 5412.

This is an entirely artificial and a legal fiction instituted for the sake of judicial economy and more rapid settlements. But what this means is that injurious exposure can include periods other than that allowed by Labor Code Section 5500.5. This truth is evident in both directions. Sometimes injurious exposure precedes the 5412 date by more than a year. Sometimes it may extend after the 5412 date. For example, if the Labor Code Section 5412 date is on the last date of employment, the reality is that injurious exposure may have begun from the first date of employment even if it is outside of the last year from Labor Code Section 5500.5. Similarly, if the date of knowledge and disability is early on, conceivably injurious exposure can continue well beyond the date of knowledge. Either way the unfortunate carriers during that last year preceding whenever the 5412 date is found will be entirely liable. This is simply the judicial bargain arrived at. What is important here is that Labor Code Section 5412 is not determinative as to dates of injurious exposure. It helps settle issues of liability and the statute of limitations only.

Applying all of this to the case at hand, several things need to be noted. First, the anti-merger doctrine seems to have nothing to do with any of this. It does not seem to be the focus of the Commissioners. Secondly, as Commissioner Newman points out, Labor Code Section 5412 would not be key in separating out different body parts into new injury claims or a single continuous trauma. Also, I wonder if the fact that there is a presumption with firefighters makes date of knowledge even messier because, legally, injury is presumed whenever it occurs throughout employment. Thirdly, assuming that injurious exposure is entirely contemporaneous for all body parts, the Hon. Judge on this case has an extremely valid point that if the majority’s reasoning were to be accepted, every continuous trauma claim would now likely be divided into numerous different stipulated injuries, which aside from being a nightmare for the Court, is definitely not the current custom and practice.

In short, I would be very surprised if this decision is held up on appeal. Indeed, a writ of appeal has been lodged by the applicant. Stay tuned.

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