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The Hidden Weapon of an Earlier Date of Injury
The threat of an earlier date of injury is often necessary when dealing with that annoying codefendant who sits on the sidelines behind their Petition for Dismissal because their coverage ended earlier in a cumulative trauma claim.
Many of us are familiar with Labor Code Section 5412 which defines the date of injury for occupational diseases or cumulative injuries as the “date upon which the employee first suffered disability and either knew, in the exercise of reasonable diligence, should have known, that such disability was caused by his/her present or prior employment therefrom.” Many of us are also familiar with the conclusions regarding the meaning of “disability,” set forth in the decision in State Compensation Insurance Fund v. WCAB (Rodarte) (2004) 69 Cal.Comp.Cases 579, which held that either compensable temporary disability or permanent disability is required to satisfy the requirements of section 5412.
More importantly, many of us are aware of Western Growers v. WCAB (1993) 58 Cal.Comp.Cases 323 where the date of injury was determined to be upon his first hospitalization and, thereafter, continuing for the next three years based on the need for ongoing medical treatment. Thus, the first carrier was held liable for the entirety of the injury claim, even though, the applicant returned to work and continued working for the next three years.
When seeking to find that a date of injury occurred prior to the termination of injurious exposure or ending of medical treatment in cumulative trauma cases, determining the date of injury based on the concurrence of knowledge and compensable temporary disability or wage loss is normally straightforward.
However, seeking a finding of an earlier date of injury based on the concurrence of knowledge and permanent disability, or possibly other factors which may satisfy the meaning of disability per Labor Section 5412, can prove more problematic as there is usually no definitive expert medical determination that the injured worker suffered permanent disability until treatment has completed.
Regardless, several decisions, including Rodarte, provide support for the contention that medical treatment, work restrictions, and/or the need for splints or braces may provide enough evidence of compensable permanent disability to support the finding of an earlier date of injury.
In the writ denied case, Allianz Ins. Group v. Workers’ Comp. Appeals Bd. (Hinojosa ) (1994) 64 Cal.Comp.Cases 83, a case cited in the Rodarte decision, the Board found a date of injury based on permanent disability, occurring when the injured worker sought medical treatment for carpal tunnel syndrome and was supplied with wrist splints, indicating that the applicant’s condition deteriorated to a point where she was forced to seek medical treatment and prescribed splints and medication, and, therefore, suffered impaired earning capacity as a result of having to seek medical treatment.
In line with Hinojosa, the WCJ in a more recent writ denied case, California Insurance Guarantee Association v. W.C.A.B. (Morodomi) (2009) 74 Cal. Comp. Cases 1167 went even further, indicating that in order to define disability, one must assume a continuum, beginning with symptoms, progressing through treatment which results in modified duty, and which ripens into restrictions. Based on this continuum theory which the WCJ opined was consistent with interpretation of “disability” in Rodarte, the WCJ determined the date of injury based on when the injured worker was first diagnosed with carpal tunnel syndrome, given wrists braces, and provided with work restrictions which eventually culminated in temporary and permanent disability.
These arguments may successfully reduce or eliminate your client’s liability. However, be wary if you are the annoying codefendant. Agreeing to a division of liability early may be beneficial when facing a potential adverse finding as to the date injury, especially, when it can be used in conjunction with Western Growers.
Written by Xavier T. Tan-Sanchez, Esq. Feb. 2019