Contribution:

CUMULATIVE TRAUMA;

SPECIFIC INJURY, OR

BOTH

 

Presented by

Steven Popko

HANNA & BROPHY

 

CUMULATIVE INJURY

LABOR CODE 3208.1

An injury may be either:

 

(a) "specific," occurring as a result of one incident or exposure which caused disability or need for medical treatment; or

 

(b) "cumulative" occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment. The date of the cumulative injury shall be the date determined under Labor Code §5412

JUDICIAL RECOGNITION

Beverage v. IAC 24 CCC 274 (1959): "...while a succession of slight injuries in the course of employment may not in themselves be disabling, their cumulative effect in the work effort may become a destructive force...the single strand, entwined with others makes up the rope of causation. The fragmentation of injury, the splintering of symptoms, into small pieces, the atomization of pain into minor twinges, the piecemeal contribution of work effort to final collapse, does not negate injury. The injury is still there, even if manifested in disintegrated rather than in total, single impact. In reality the only moment when such injury can be visualized as taking compensative form is the date of last exposure, when the cumulative effect causes disability."

WHETHER CT?

• REQUIRES MEDICAL OPINION
• SINGLE CT V. MULTIPLE PERIODS OF CT
• "COLTHARP": Multiple Periods of CT with an intervening period of disability.

DEFINITION OF

LABOR CODE §5500.5

"The liability period for occupational disease or cumulative injury shall be...limited to the last year of injurious exposure."

 

History: There shall be no encumbrance of the delivery of benefits; simplicity; things will even out.

 

Period of cumulative trauma does not necessarily equal period of liability.

PERIOD OF CT PER 5500.5 WHERE COVERAGE CHANGES

• Important to identify last year of CT if coverage changes; this creates contribution issue
• Important to identify what types of conditions result in CT; upper extremity pathology, internal; psyche; circulatory system;
• Most workers will report a "specific" when in fact condition more likely a CT

COLTHARP AND

LABOR CODE §3208

Separate cumulative trauma periods with an intervening period of disability require separate findings of dates of injury.

CONTRIBUTION: ONE CT;

TWO CTS; TWO SPECIFICS

CONTRIBUTION/LIABILITY WHAT AMOUNT?

• Pro rata vs. degree of arduousness
• Last year of "secured" employment per Labor Code §5500.5 (Meaning, where there is coverage.)

PERIOD OF LIABILITY

LABOR CODE §5500.5

Limits liability to those employers or carriers in tha last year of injurious exposure.

ENDING DATE OF THE CT 

Period of injurious exposure ends at what point?

RODARTE: 69 CCC 579

Apportioning liability for cumulative trauma injuries, pursuant to Labor Code Section 5500.5, requires that either compensable temporary disability, or permanent disability be found to satisfy the disability requirement of Labor Code §5412. Because actual wage loss is required for temporary disability, modified work alone is not sufficient basis for compensable temporary disability, but may indicate permanent impairment of earning capacity, especially if the worker is never able to return to the original job duties. Medical evidence alone is not sufficient to establish "disability" in defining the ending date of CT, but may also be evidence of compensable permanent disability.

ENDING DATE DEFINED BY

• Lost time from work (TTD)
• Medical Treatment (How much?)
• Finding of Permanent Disability
• Modified Work?

COMBINED INJURIES; SEPARATE DETERMINATIONS LABOR CODE §3208

"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 in 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, benefits, the costs of medical treatment, and any death benefit."

SETTLEMENT

&

PETITION FOR CONTRIBUTION

RIGHT OF ELECTION PER LABOR CODE §5500.5

Non-elected defendants sit back, no participation until case is resolved. Then full rights to discovery

SETTLEMENT WITH SOME OF THE DEFENDENTS

Labor Code §5005 allows credit to the extent that the applicant's disability was caused or contributed to by the settled periods of exposure. The portion of the liability released or settled shall be deducted from the liability of the remaining defendants.

 

Was settlement for the entire CT or only the portion of the settling defendant?

TIME LIMITATIONS TO FILE PETITION FOR CONTRIBUTION

One year from the date of the Award

 

Any Award

LIABILITY AS AGAINST UNINSURED EMPLOYERS FUND (UEF)

Liability as against the uninsured employer.

 

​NONE

 

 

LIABILITY AS AGAINST CALIFORNIA INSURANCE GUARANTEE ASSOCIATION (CIGA)

 

 

Liability as against CIGA.

 

​NONE

 

EXAMPLE 1

A 35-year old construction worker developed rotator cuff problems and eventually stopped work on 1/1/07. For the last five years he worked at various employers in the residential home building industry.

 

​How would you define the period of liability, and which employers would be necessary parties?

Typical Cumulative Trauma

EXAMPLE 2

A 35-year old secretary developed bilateral carpal tunnel syndrome, with symptoms that began in January 2007. She continued work through March 2007 when she reported her claim, was sent to the Industrial Medical Clinic, and was taken off work. What is the date of injury and period of liability per Labor Code §5500.5.

 

​What is the date of injury and period of liability per Labor Code §5500.5?

EXAMPLE 3

A 35-year old secretary develops bilateral carpal tunnel syndrome in January 2007, reports her injury in January 2007, is placed on modified duty immediately thereafter, and continues on modified duty until her surgery on April 1, 2007, when she is taken off work.

 

​What is the date of injury?

EXAMPLE 4

A 35-year old secretary develops bilateral carpal tunnel syndrome in 2005, is taken off work on January 1, 2006, has surgery, returns to her usual and costumary duties in May 2006, and continues to work through March 2007, then going off work once again to have additional surgery. Her testimony is upon return to work her symptoms returned, and worsened. What is the date of injury.

 

​What is the date of injury?

EXAMPLE 5

A 35-year old carpenter is hammering a piece of plywood on 1/1/07 develops shoulder complaints. He reports his condition to his employer, is referred to the Industrial Medical Clinic and diagnosed with a torn rotator cuff and medial epicondylitis.

 

​What is the date of injury?