Relation Back Doctrine

Morten Andersen vs. New Orleans Saints (September 1, 2015), (WCAB Panel Decision, September 1, 2015).

This matter involved an alleged cumulative trauma injury from April 1982 to February 2008.

Employment by applicant in the cumulative trauma was as follows:

  • 1982 to 1995, New Orleans Saints (28 games in that period in California)
  • 1995 to 2001, Atlanta Falcons (8 games in California)
  • 2001 to 2002, New York Giants (No games in California)
  • 2002 to 2004 Kansas City Chiefs (3 games in California including the last game played in the state of California on November 30, 2003)
  • 2004 to 2006 Minnesota Vikings (No games in California)
  • 2006 to 2008 Atlanta Falcons (No games in California)

The WCAB in this case found that the workers’ compensation judge improperly applied the “relation back” provision of Labor Code §5500.5(a). The WCAB found that §5500.5(a) requires that liability for the cumulative injury be allocated against applicant’s employers during the one year immediately preceding the last date of injurious exposure, or to prior employers by relationship back as provided in the statute. The WCAB cited Labor Code §5500.5(a) and stated that the section has been applied when 1) there is no insured defendant during the specified liability, or when 2) the WCAB does not have personal jurisdiction over an employer during the specified liability.

In this case the WCAB noted that even though the cumulative trauma claim was filed through 2008, the last California game was played on November 30, 2003 while applicant was employed with Kansas City. At trial, applicant made a motion to elect against the New Orleans Saints who were not in the last year of injurious exposure under Labor Code §5500.5. The New Orleans Saints last employed the applicant in 1995 and the WCAB found there was no good cause to elect against the New Orleans Saints because they were not in the last year of injurious exposure and the relationship back doctrine could not apply otherwise. The WCAB remanded the matter back to the trial level for application of the principles underlying Labor Code §5500.5(a) with the implication that the New Orleans Saints would be dismissed as a party defendant as they were not in the last year of injurious exposure.