Whether you are an attorney, hearing representative, or claims adjuster, there is no question you routinely deal with cumulative trauma (“CT”) claims. But when a CT is alleged over a long span of employment, it can raise an interesting question: is this truly one CT injury or do the facts support multiple CT injuries occurring during different periods?
That question matters because once a claim is accepted, while the applicant would be entitled to benefits, the defense must still evaluate who ultimately bears responsibility for those benefits. In many CT cases, liability is generally determined with Labor Code § 5500.5, which places liability on the carrier(s) who provided insurance coverage during the last year of injurious exposure. However, what if the singular CT period the parties have been treating as one claim is later found to be two distinct cumulative trauma injuries?
If the evidence supports splitting this singular CT period into multiple, separate CT claims, this can drastically change the allocation of liability. Another insurance carrier can potentially be brought in and divide liability that would otherwise rest entirely on the terminal-year defendant(s) under Labor Code § 5500.5.
THE COLTHARP CASE SETS THE TONE
A fundamental case that essentially laid the foundation to address this issue can be found in Aetna Casualty and Surety Co. v. WCAB (Coltharp)(1973) 35 CCC 329.
In this case, the applicant claimed he sustained four, separate specific injuries in 1954, 1966, March 1969, and Aug. 27, 1969. He also claimed single CT injury from Jan. 8, 1947 to Aug. 27, 1969, to his back, hips, and legs. It is important to note that the applicant received temporary disability and medical treatment after the two specific injuries in 1969, albeit separately for each incident.
Ultimately, the WCAB ruled that the applicant sustained two separate CT injuries because the applicant received two distinct periods of temporary disability and medical treatment after each 1969 injury, creating a “broken period” that disrupted the alleged CT claim from Jan. 8, 1947 to Aug. 27, 1969.
This ruling established itself as precedent for parties to make a very compelling argument that interspersed periods of temporary disability and medical treatment will break an ongoing CT period into two separate CT claims.
As a result, Coltharp was a leading citation for a long time until Western Growers came into play.
THE WESTERN GROWERS CASE CHANGES THE TIDE
In Western Growers Insurance Co. v. WCAB (Austin)(1993) 58 CCC 323, the applicant sustained a CT injury for major depression. Although he received temporary disability and medical treatment, he did not fully recover from his injury before returning to work. Eventually, his condition worsened and he continued to receive medical treatment.
The WCAB ruled that despite the applicant’s two periods of temporary disability, there was substantial evidence to support that the applicant had a continued need for medical treatment because he returned to work without fully recovering from his injury. Therefore, this was a singular injury and the two periods of temporary disability were insufficient to establish two distinct CT periods.
Western Growers established a more refined way to determine whether multiple CT claims exist. It clarified that the number of CT injuries is not determined by a strict rule, as outlined in Coltharp, but is a question of fact for the WCAB to decide on a case-by-case basis. While distinct periods of temporary disability is one element, Western Growers also emphasized whether the applicant had continued medical care, whether the applicant was subject to similar injurious exposure during his employment, and whether the disability periods were caused by separate specific events.
THE RODARTE CASE SHEDS LIGHT
Now let’s assume that your particular CT claim has been split into two separate CTs. To properly allocate liability between the carriers, you would need to determine the date of injury for each CT claim. Under Labor Code § 5412, the date of injury is the date an applicant first suffered disability and knew, or should have known, that the disability was work-related. In short, the applicant must demonstrate “knowledge” and “disability” to successfully create a CT claim.
SCIF v. WCAB (Rodarte)(2004) 69 CCC 579 further clarifies this matter. This concerned a discrepancy with what qualified as “disability” under Labor Code § 5412. The WCAB clarified that disability requires either compensable temporary disability or permanent disability. Furthermore, actual wage loss is required before an applicant receives temporary disability benefits; therefore, modified work alone is insufficient to meet the requirement for disability.
CONCLUSION
Overall, CT claims present an interesting situation where a single course of repetitive work, while probably one continuous injury, can also support multiple distinct injury periods. This also affects the number of liable carriers within the CT claim(s).
Coltharp was an early indicator on how to identify where multiple CT periods exist. Western Growers clarified that the number of CT injuries is evaluated on a case-by-case basis of relevant factors, and Rodarte expands the liability analysis to ensure that the elements of knowledge and disability must be met to properly create a CT timeline.
Timothy Yi is an associate attorney at Bradford and Barthel’s Anaheim office. If you have questions about workers’ compensation defense issues, please feel free to reach out to Timothy at (714) 526-9120 or tyi@bradfordbarthel.com.
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