The date an injured worker realizes they can file a workers’ compensation claim is completely different from the date they knew their disability was caused by a specific job, according to a recently-published decision from the 4th District Court of Appeal (DCA) analyzing how to determine the date of injury on a cumulative trauma claim.
In the case of Travelers Indemnity Co. v. WCAB (Zeber), the appellate court was asked to determine what the date of injury was for applicant George Zeber’s cumulative trauma claim. Zeber had played for the New York Yankees, and last played in 1978.
If the date of injury was determined to be after 1/1/90, then the court could order Travelers to mandatory arbitration on a coverage dispute, pursuant to LC 5275. However, LC 5275 did not take effect until 1/1/90. That meant that if Zeber’s date of injury was prior to 1/1/90, then Travelers might not be subjected to mandatory arbitration, because the date of injury preexisted the mandatory arbitration statute.
In the underlying case, the trial judge had found a date of injury ending in 2017 because that’s when the applicant first learned that he could file a claim in the state of California. The judge determined that the applicant was shielded from a statute of limitations defense, and concluded that the statute of limitations was tolled until the applicant learned about his ability to file a workers’ compensation claim.
Travelers disputed the judge’s finding of a 2017 date of injury, and contended that applicant’s date of injury was 9/1/78, the date he retired from the New York Yankees.
APPELLATE LEVEL
So with that in mind, the appellate justices analyzed the statutory scheme and determined that the date of injury should be determined pursuant to Labor Code 5412. They then analyzed the trial judge’s decision in the case, and determined that the trial judge’s definition of date of injury was focused on when the applicant knew that he could file a workers’ compensation claim. The justices noted that under LC 5412, the “date of injury” is when the applicant:
- Is disabled
- Has knowledge that the disability was caused by work
“Knowledge that one can file a workers’ compensation claim is different from knowledge that a disability was caused by a present or prior employment,” the court said. “Thus, we cannot rely on the WCJ’s implied finding of a ‘date of injury’ to support the WCAB’s order.”
The court remanded for further proceedings on what the date of injury was for purposes of the mandatory arbitration statute, ie pursuant to LC 5275(a)(1).
OUR ANALYSIS
The court appears to be drawing a fine line between date of knowledge about an injury being work-related, versus the date an applicant first learned about their rights to file a workers’ compensation claim.
The distinction sounds confusing, but frankly it is useful because:
- The 4th DCA appears to not disturb the principle that the statute of limitations will be tolled until the date an applicant first learns about their rights to file a workers’ compensation claim.
- That being said, just because a statute of limitations is tolled, that doesn’t meant that end date of a cumulative trauma gets changed to the tolling date. Instead, LC 5412 controls how one determines the date of injury.
Why is that distinction important? Because it brings great clarity to what the date of injury is when codefendants are fighting about liability among one another.
These complex topics are often best explained by example, so here’s a hare of a hypothetical:
- Bugs Bunny plays for the Tea Totallers against the Gas-House Gorillas from 1990 through 1996.
- Bugs files a cumulative trauma claim and alleges it is from 9/30/95-9/30/96.
- Bugs goes on the disabled list for a bad case of baseball bunny ears on 6/1/1994. When Bugs goes on the disabled list, he knows that his baseball helmet caused his bunny ears injury.
- There are different carriers in each year:
- 1993 and 1994: Wile E. Coyote’s Wild West Insurance Co.
- 1995 and 1996: Daffy Duck Indemnity Corp.
This prompts the question – when is the date of injury for his bunny ears? Should it be when he played his last game in 1996? Or should it be in 1994?
That question is going to really matter to Wile E. Coyote and Daffy Duck, both of whom don’t want to get stuck with the liability for the claim. (Rabbit ears are expensive!)
Under this Looney Tunes fact pattern, Bugs’ cumulative trauma injury to his bunny ears should end on 6/1/94. Why? Because that’s the date he had a concurrence of knowledge (knowing that his helmet caused his bunny ears), and disability (ie going on the disabled list, an indicator of temporary disability).
Sorry Wile E. Coyote, but you lose again.
The fact that Bugs’ cumulative trauma date of injury ends on 6/1/94 does not impact his ability to combat a statute of limitations defense. If Bugs didn’t know he could file a workers’ compensation claim until 1999, then the statute of limitations would be tolled until 1999, meaning he would have until a year after that to file a claim.
CONCLUSION
Date of injury arguments often start out simple, but can get complex real fast – especially when we start arguing about what the “date of injury” is as it pertains under a specific statute. This 4th DCA published decision does an excellent job of attempting to bring clarity to this complex topic, and will likely be quoted in hearings at an arbitrator near you!
Got a question about workers’ compensation defense issues? Feel free to contact John P. Kamin. Mr. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location, where he monitors the recent legislative affairs as the firm’s Director of the Editorial Board. Mr. Kamin previously worked as a journalist for WorkCompCentral, where he reported on work-related injuries in all 50 states. Please feel free to contact John at jkamin@bradfordbarthel.com or at (818) 654-0411.
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