California: WCAB Practices Are Evolving: Are Their Templates Evolving as Well?

By Hon. Colleen Casey, Former Commissioner, California Workers’ Compensation Appeals Board

The struggle is real. How and when should Workers’ Compensation Judges (WCJs) apply the statute of limitations to bar compensation claims of injured workers? This process is especially challenging when dealing with industrial cumulative traumas (CT) and their end date pursuant to Lab. Code § 5412.

As discussed below, it appears the WCAB template for the Lab. Code § 5412 definition of “disability” has recently been tweaked a bit, making it easier for defendants to bar an injured worker’s claim using the statute of limitations.

Cumulative trauma injuries are complex. It’s no wonder the analysis of this issue has morphed over the years. In general, Lab. Code § 3208.2 requires each successive industrial injury, in a series of injuries, with the same industrial exposure, to be identified and litigated separately. However, there are legitimate circumstances when all injuries should be combined into a single cumulative trauma. But that’s not true if the sole purpose for that action is to allow an earlier injury to avoid being barred by the statute of limitations.

The configurations are endless:

• What if each successive injury affects a different body part?
• What if each injury has a different permanent and stationary date?
• What if the employee doesn’t have a clue the injuries are industrial?
• What if some of the injuries occurred on a date certain, while others were a result of repetitive physical activities or an occupational related disease?

Over the years, the legislature has attempted to provide instructions on how to proceed in these plural injury scenarios. Judges have attempted to apply these laws to the facts.  Still, questions remain. Conclusions arise, but they are all over the map. Perhaps it’s because the legislative intent in creating these roadmaps appears to be diametrically opposed?

For example, the intent of Lab. Code § 5412 is to preserve applicant’s claim until the employee is reasonably aware their claim exists. Whereas the intent of Lab. Code §§ 3208 and 5303 (the anti-merger statutes) is to bar applicant from placing a prior claim onto the coattails of a later valid claim, which would make application of a statute of limitations against the earlier claim impossible.

What is the ultimate impact of this divergence in legislative intent? In the past, the WCAB used the same legal template to analyze both sets of scenarios. However, recent WCAB decisions bring that practice into question. Many believe there are now two sets of guidelines to follow. One would apply under the Lab. Code § 5412 definition of disability and the other would apply under the anti-merger legislations, which also uses the Lab. Code § 5412 definition of disability in its calculation. Doesn’t this mean that this newly crafted WCAB template would apply to both?

As we sort through the history of the case law below, answers will float to the surface, while other queries remain in limbo. Perhaps, current Noteworthy Panel Decisions (NPDs) hold hints of what is to come.

I. Hypothetical—Case of Joe Quarterback

A. Chronology of events

A common hypothetical of the issues that arise when multiple injuries are sustained over a course of a career might be a professional football player named Joe Quarterback, with the following chronology of industrial injuries:

2009:   Joe begins his career as a pro football quarterback

2010:   Joe sustains a brain injury

2018:   Joe sustains a spine injury

2019:   Joe retires from pro ball

2021:   Joe files a workers’ comp claim/Application for a CT ending 2019

B. Lab. Code § 5412—DOI = Disability + Knowledge

Under Lab. Code § 5405, Joe has one year to file an application from the date of injury (DOI). For cumulative trauma (CT) injuries, (as opposed to specific injuries) the date of injury is defined per Lab. Code § 5412 as follows,

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

Joe offers proof at trial that even though he did not file a claim until 2021 for the CT ending 2019, neither of the injuries to his head or spine should be barred since he didn’t have “disability” from either injury as defined by the WCAB template utilized in 2020. This gave him one year from 2020 to file his application, which he timely did.

Lab. Code § 5412 mandates that a claim is not barred until applicant has both disability + knowledge. Most cases go to trial on the sole issue of when applicant was provided knowledge (usually from a medical professional) that an injury or injuries were industrial.

For some odd reason parties often fail to present evidence that applicant sustained disability for the claimed injuries, which can have unexpected consequences at trial. In this hypothetical, Joe’s attorney remembered to do this. Therefore, none of his industrially injured body parts were deemed barred by the WCJ.

A “real life” situation where evidence of “disability,” the first prong of Lab. Code § 5412, was not presented at trial can be found in the Noteworthy Panel Decision (NPD) of Raymond Craig Penrose v. Denver Gold, 2023 Cal. Wrk. Comp. P.D. LEXIS 256 [2018 Cal. Wrk. Comp. P.D. LEXIS 290]). This case dealt with a professional quarterback, Raymond Penrose, who retired in 1985. Defense sought to bar his claim based on the statute of limitations, since he retired in 1985, but did not file a claim until 2011. Applicant argued that Lab. Code § 5412 applied and that his claim should not be barred. At trial, focus was placed on the “knowledge” factor of Lab. Code § 5412, but the parties failed to present evidence of the 1st prong of Lab. Code § 5412, the date of Penrose’s first documented disability. Post-trial, the judge waded through volumes of medical evidence until he found the requisite proof of disability. It turned out to be a medical report of a physician who explained that the first evidence of applicant’s disability did not occur until 2014, almost 30 years after Penrose retired. Therefore, THAT date in 2014, became the date of injury for statute of limitations purposes.

PRACTICE NOTE: As a case is being worked up for trial, practitioners should keep a list of all potential issues AND what their burden of proof is on each issue. As discovery progresses, the identity of specific exhibits should be noted next to each issue, which support proof for that issue, such as applicant’s first date of disability. Leaving the quest for both “knowledge” and “disability” date up to the trial judge may bring unexpected results, such as that which occurred in the Penrose case.

C. Would Anti-Merger Laws Bar Joe’s 2010 Brain Injury?

In the above Joe Quarterback hypothetical, even if the defendant picked up coverage for the career-ending 2018 spine injury, defense might argue the 2010 brain injury should be barred by the anti-merger statutes. The following statutes bar certain prior injuries from being impermissibly tacked on to later injuries as follows:

Lab. Code § 3208.2: “When disability, need for medical treatment, or death results from the combined effects of two or more injuries, either specific, cumulative, or both, all questions of fact and law shall be separately determined with respect to each such injury, including, but not limited to, the apportionment between such injuries of liability for disability benefits, the cost of medical treatment, and any death benefit.”

AND

Lab. Code § 5303: “There is but one cause of action for each injury coming within the provisions of this division. All claims brought for medical expense, disability payments, death benefits, burial expense, liens, or any other matter arising out of such injury may, in the discretion of the appeals board, be joined in the same proceeding at any time; provided, however, that no injury, whether specific or cumulative, shall, for any purpose whatsoever, merge into or form a part of another injury; nor shall any award based on a cumulative injury include disability caused by any specific injury or by any other cumulative injury causing or contributing to the existing disability, need for medical treatment or death.”

Would this anti-merger legislation apply to Joe Quarterback’s case? In order for defense to prevail on this issue, defendant would have been required to produce evidence at trial that applicant sustained “disability,” defined as either temporary disability (TD) or permanent disability (PD), directly after the 2010 head injury. In addition, they must have established that he thereafter returned to his usual and customary job duties prior to his spinal injury in 2018. Defense did not do this.

The only evidence produced at trial of documented “disability” was by applicant as stated above:

Joe offers proof at trial that even though he did not file a claim until 2021 for the CT ending 2019, neither of the injuries to his head or spine should be barred since he did not have “disability” from either injury as defined by the WCAB template until 2020. This gave him one year from 2020 to file his application, which he timely did in 2021. In the hypothetical, defendant produced no evidence at all as to the existence of either TD or PD. Therefore, if this had been “real life,” the judge would have ruled in favor of applicant to hold the 2010 head injury not barred by the statute of limitations.

PRACTICE NOTE: Always keep up to date on the types of “templates” or “roadmaps” used by the WCAB when analyzing each issue. For the most part, these remain static unless major legislation or case law mandates a change. However, it appears that the “template” for handling dates of successive injuries has quietly morphed over the years in a variety of different ways. Initially, defense was limited to producing evidence that applicant suffered TD after the prior injury in order to bar that injury as being impermissibly “merged” with a later injury and therefore subject to a statute of limitations. Then PD was added to the WCAB template on this issue, allowing proof of either TD or PD to trigger the anti-merger legislation. Recently, it looks as though the WCAB has added a third factor that may qualify as explained below.

II. History of WCAB Anti-Merger Template

The workers’ compensation system has seldom favored “gotchas” such as barring an industrially injured worker’s claim based on the statute of limitations. In 1945, three months after the end of World War II, the California Supreme Court weighed in on the statute of limitations in the case of Colonial Ins Co v. IAC (1945) 27 Cal. 2d 437 [10 Cal. Comp. Cases 321].

“It must be remembered that the provisions of the workmen's compensation law dealing with the limitation of time within which proceedings for compensation may be commenced… are to be liberally construed [in favor of] employees, and where provisions are susceptible of an interpretation either beneficial or detrimental to an injured employee, they must be construed favorable to the employee.”

Therefore, when a defendant attempts to bar legitimate cumulative trauma (CT) claims either by the anti-merger legislation of Lab. Code §§ 3208.2 and 5303 or by the CT date of injury statute of Lab. Code § 5412, case law standards have been carefully scrutinized and tweaked as necessary to conform to legislative intent.

Before a claim can be barred by Lab. Code § 5405, defendants have the burden of proving that the Application for Adjudication was not filed within one year of the date of injury.

For specific injuries, the date of injury is rarely in dispute. For cumulative trauma (CT) injuries pursuant to the language of Lab. Code § 5412, that date can be a moving target.

Lab. Code § 5412 defines this date as:

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

The problematic task of defining “disability” pursuant to Lab. Code § 5412 has haunted the WCAB community for decades. As discussed above, in recent years, it seems as if the parties decided this task was too difficult and skipped it all together. Apparently, they didn’t realize this failure would come back to haunt them when the case went to trial, as illustrated in the Penrose case cited above.

According to the 2nd DCA in the case of Chavira v. WCAB (1991) 235 Cal. App. 3d 463 [56 Cal. Comp. Cases 631], Lab. Code § 5412 was enacted in 1947 to codify the holding in Marsh v. IAC (1933) 217 Cal. 338, which was,

“In the case of a progressive occupational disease, the date of injury is the date on which disability occurs and by reasonable diligence the employee can discover the disability was industrially caused.”

The legislative intent behind Lab. Code § 5412 was apparent. It was to toll the period of limitations until the applicant is “reasonably aware” that he or she suffered a “disability” and that that “disability” was derived from industrial causes. As case law evolved, it became clear that Lab. Code § 5412 applied not only to “progressive occupational diseases” but to all situations in which a cumulative repetitive trauma (CT) injury was involved.

The definition of “disability” has been a conundrum for practitioners since Lab. Code § 5412 was enacted. Initially, it was determined to mean that date upon which the worker’s wages were impaired on an industrial basis and thus the date “disability” occurred was the date when the worker was “temporarily disabled” (TD).

A. Initially disability = TD

In the case of J.T. Thorp v. WCAB (1984) 153 Cal. App. 3d 327 [49 Cal. Comp. Cases 224], the 3rd DCA defined “disability” in the context of Lab. Code § 5412 as temporary disability (TD) as follows:

“The term ‘disability’ as used in Labor Code §5412, is of course, to be given the same meaning as elsewhere in the Act …i.e., an impairment of bodily functions which results in the impairment of earnings capacity. Accordingly, where an employee suffers from a cumulative injury, there is a ‘date of injury’ only at such time as the employee suffers an impairment of bodily functions which results in the  impairment of earnings capacity.”

This requirement that only a finding of TD was required to trigger the definition of “disability” per Lab. Code § 5412 was followed in the cases of County of LA v. WCAB (Gregg) (1982) 47 Cal. Comp. Cases 1215 (writ denied), and Christians v. California Cas. Indem. Exch. (1975) 3 Cal. Workers’ Comp. Rptr. 114. However, in other cases, the WCAB allowed either TD or PD to trigger the definition of “disability” and allow a claim to be barred by a statute of limitations.

B. Rodarte determined disability = TD or PD

In the case of SCIF v. WCAB (Rodarte) (2004) 119 Cal. App. 4th 998 [69 Cal. Comp. Cases 579], the 2nd DCA explained how the WCAB created a serious problem for litigators because the definition of “disability” was inconsistently defined as follows:

“Some Board decisions have based the date of injury under section 5412 on compensable permanent disability. But on occasion, the Board has expressed the view that only temporary disability, that is compensable wage loss, would suffice. That was the position it expressed in this case [Rodarte]. The Board's inconsistency is apparent in a series of decisions involving cumulative hearing loss, two of which are the very decisions relied on by the Board in this case: Gregg and Christians required lost time as a basis for finding compensable disability for the cumulative hearing loss injuries. But Lacky v. WCAB (1987) 52 Cal Comp Cases 350 and Deaver v. Neilsen-Nickels Co. (1988) 16 Cal. Workers' Comp. Rptr. 139, did not impose that requirement. In Lackey and Deaver, the Board held that gradual onset of hearing loss known to be an employment related disability was sufficient to start the statute of limitations running, even though there is no lost time from work. In other words, Gregg and Christians required compensable temporary disability, but Deaver and Lackey did not, finding instead that permanent disability was sufficient.”

The 2nd DCA hoped to provide a uniform definition of “disability” pursuant to Lab. Code § 5412 and concluded that proof of either compensable TD or PD would suffice for a finding of “disability” to be rendered pursuant to Lab. Code § 5412. Subsequent case law followed suit. For instance, the WCAB template in the case of Merino v. Ventura County Fire Dep't, 2022 Cal. Wrk. Comp. P.D. LEXIS 370, summarized the Rodarte holding as follows:

“Medical treatment alone is not disability, although it may be evidence of permanent disability. Whether there is temporary or permanent disability indicating the date of cumulative injury is a question of fact, which must be supported by substantial evidence.”

C. Currently, a WCAB template seems to allow “disability” = TD or PD or MT?

Although cases decided after Rodarte have usually relied on the 2nd DCA’s definition of “disability,” it seems a “new” 3rd factor may or may not be working its way into the Lab. Code § 5412 definition template for “disability” as indicated in two recent Noteworthy Panel Decisions (NPDs).

In the case of Chamorro v. Saputo Cheese United States, Inc., 2022 Cal. Wrk. Comp. P.D. LEXIS 135, the WCAB held,

“As used in Section 5412, ‘disability’ means either compensable temporary disability or permanent disability.”

However, in the explanation for this holding, a NEW, third factor is added which is “new or increased medical treatment.”

The primary issue in the Chamorro case dealt with barring an industrial injury based on the anti-merger legislation, as opposed to barring the injury pursuant to Lab. Code § 5412. The WCAB found that the WCJ in that case did not adequately address the applicant’s first date of disability, which made it impossible to correctly analyze whether the initial injury was impermissibly merged with the successive injuries contrary to statute.

The WCAB explained their position using the following template:

“In this case, the threshold issue remains whether there were two CT injuries or a single injury. If there were two injuries, the issue of apportionment of permanent disability between the two dates of injury must be addressed and requires medical evidence. Separate cumulative trauma injuries occur where "periods of disability and/or need for medical treatment [are] interspersed within the course of the repetitive activities." (Aetna Casualty & Surety Co. v. Workmen's Comp. Appeals Bd. (Coltharp) (1973) 35 Cal.App.3d 329 [110 Cal. Rptr. 780, 38 Cal.Comp.Cases 720] and Ferguson v. City of Oxnard (1970) 35 Cal.Comp.Cases 452 (Appeals Board en banc).) There is a single cumulative trauma with one date of injury (i.e., the first period of compensable temporary disability) where periods of temporary disability were linked by a continued need for medical treatment under Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227 [20 Cal. Rptr. 2d 26, 58 Cal.Comp.Cases 323].) Of course, the number and nature of the injuries suffered are questions of fact for the WCJ or the Appeals Board. (Western Growers Ins. Co (Austin), 16 Cal.App.4th at pp. 234-235; Aetna Cas. & Surety Co. (Coltharp) 35 Cal.App.3d at p. 341.)

“When Western Growers (Austin) is read in conjunction with the Labor Code section 3208.1 definition of "cumulative injury," the anti-merger provisions of Labor Code sections 3208.2 and 5303, and the holding of Aetna Casualty (Coltharp), the following principles apply:

(1) if, after returning to work from a period of temporary disability and a need for medical treatment, the employee's repetitive work activities again result in injurious trauma (i.e., if the employee's occupational activities after returning to work from a period of temporary disability cause or contribute to a new period of temporary disability, to a new or an increased level of permanent disability, or to a new or increased need for medical treatment), then there are two separate and distinct cumulative injuries that cannot be merged into a single injury (Lab. Code §§ 3208.1, 3208.2, 5303; Aetna Casualty (Coltharp), supra, 35 Cal.App.3d at p. 342); and

(2) if, however, the employee's occupational activities after returning to work from a period of industrial temporary disability are not injurious (i.e., if any new period of temporary disability, new or increased level of permanent disability, or new or increased need for medical treatment result solely from an exacerbation of the original injury), then there is only a single cumulative injury and no impermissible merger occurs. (Lab. Code, §§ 3208.1, 3208.2, 5303; Western Growers (Austin), supra, 16 Cal.App.4th at p. 235.)”(Emphasis added.)

In other words, the following is perhaps the evolution of the WCAB template as to what finding is required to be proven by defendant at trial in order to trigger the anti-merger legislation to apply and industrial injuries to be barred by the statute of limitations:

Initial workers’ compensation template (pre 2004):

• Only TD

Rodarte template (2004)

• TD, or
• PD

Possible “new” template (post 2004)

• PD, or
• TD, or
• New or increased need for MT

This “new” WCAB template with the added 3rd factor of “new or increased need for medical treatment” has been repeated in other recent WCAB decisions with similar holdings. Compare the template used in Chamorro with the recent NPD of Pratt v. Kern County Sheriff's Office, 2023 Cal. Wrk. Comp. P.D. LEXIS 120, which was also an anti-merger legislation (as opposed to a Lab. Code § 5412) case as follows:

“When the holdings of Austin and Coltharp are harmonized and read in conjunction with the section 3208.1 definition of "cumulative injury" and the anti-merger provisions of sections 3208.2 and 5303, the following principles are revealed:

(1) if, after returning to work from a period of industrially-caused disability and a need for medical treatment, the employee's repetitive work activities again result in injurious trauma—i.e., if the employee's occupational activities after (returning to work from a period of temporary disability cause or contribute to a new period of temporary disability, to a new or an increased level of permanent disability, or to a new or increased need for medical treatment—then there are two separate and distinct cumulative injuries that cannot be merged into a single injury (Lab. Code, §§ 3208.1, 3208.2, 5303; Coltharp, supra, 35 Cal. App. 3d at p. 342); and

(2) if, however, the employee's occupational activities after returning to work from a period of industrially-caused disability are not injurious—i.e., if any new period of temporary disability, new or increased level of permanent disability, or new or increased need for medical treatment result solely from an exacerbation of the original injury—then there is only a single cumulative injury and no impermissible merger occurs. (Lab. Code, §§ 3208.1, 3208.2, 5303; Austin, supra, 16 Cal. App. 4th at p. 235.)” (Emphasis added.)

Conclusion:

The cases which utilized this three-prong (rather than two-prong) definition of “disability” have been limited to those dealing with anti-merger legislation, rather than cases where defendant is attempting to bar a CT claim because the “date of injury” under Lab. Code § 5412 is not compliant with the Lab. Code § 5405 one-year statute of limitations to file a claim. However, in the past, the same definition and the same template for a finding of “disability” has been universally used. It will be interesting to see if a district court of appeals considers this issue in the future, or if the WCAB will clarify where and when this potential “new” template will apply.

Reminder: Board panel decisions are not binding precedent.

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