What the panel ordered
Petition for reconsideration granted, WCJ's Findings & Order rescinded, matter returned to trial level for further proceedings.
Defendant sought reconsideration of the WCJ's Findings & Order of August 1, 2023, which found injury AOE/COE and that applicant was not estopped or barred from making the claim. The WCAB granted reconsideration, rescinded the F&O, and returned the matter for further proceedings.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The record was insufficient to determine whether applicant sustained one or two periods of cumulative trauma; further development of the record is required.
From the decision · page 8In this case, pursuant to section 3208.1, AME Dr. Hatch determined that applicant sustained industrial industry, however her testimony is equivocal as to the date of injury and whether one or more periods of cumulative trauma exist. Therefore, while there is substantial evidence to support the conclusion that applicant's injury was AOE/COE, we cannot determine based on the record before whether applicant sustained one or two cumulative injuries.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Hatch's testimony was equivocal as to whether there was one or two periods of cumulative trauma, and the record was insufficient to determine the correct period(s) of injury.
Favours neutral
This uncertainty required further development of the record and precluded a final determination on the merits.
From the decision · page 8In this case, pursuant to section 3208.1, AME Dr. Hatch determined that applicant sustained industrial industry, however her testimony is equivocal as to the date of injury and whether one or more periods of cumulative trauma exist. Therefore, while there is substantial evidence to support the conclusion that applicant's injury was AOE/COE, we cannot determine based on the record before whether applicant sustained one or two cumulative injuries.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Dr. Hatch opined that applicant's lumbar spine disability was attributable 25% to nonindustrial degenerative changes, 25% to cumulative trauma from heavy work exposure as a drywall finisher/taper, and 50% to a specific injury in 2013. She later testified that, medically, there was one long cumulative trauma period ending in 2017, but acknowledged legal uncertainty due to a three-year gap in employment.
Dr. Hatch's opinion was equivocal as to whether there was one or two periods of cumulative trauma, leading the WCAB to remand for further development of the record.
From the decision · page 8In this case, pursuant to section 3208.1, AME Dr. Hatch determined that applicant sustained industrial industry, however her testimony is equivocal as to the date of injury and whether one or more periods of cumulative trauma exist. Therefore, while there is substantial evidence to support the conclusion that applicant's injury was AOE/COE, we cannot determine based on the record before whether applicant sustained one or two cumulative injuries.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code § 3208.1
A cumulative injury is one that occurs 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.'
Applied to determine whether applicant sustained cumulative trauma injury.
From the decision · page 7I. Labor Code section 3208.11 provides that an injury may be either cumulative or specific. No cumulative injury can occur without disability. (Van Voorhis v. Workmen's Comp. Appeals Bd. (1974) 37 Cal.App.3d 81, 86-87 [39 Cal.Comp.Cases 137]; Aetna Cas. & Surety Co. v. Workmen's Comp. Appeals Bd. (Coltharp) (1973) 35 Cal.App.3d 329, 342-343 [38 Cal.Comp.Cases 720].) A cumulative injury is one that occurs 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." (Lab. Code, § 3208.1.) "The number and nature of the injuries suffered are questions of fact for the WCJ or the WCAB." (Western Growers Ins. Co. v. Workers' Comp. Appeals Bd.
Lab. Code § 5500.5(a)
Liability for cumulative injury claims is limited to employers who employed the worker during the one year immediately preceding the date of injury or last hazardous exposure.
Applied to determine potential liability period for cumulative trauma.
From the decision · page 8Section 5500.5 states in pertinent part that liability for occupational disease or cumulative injury claims filed or asserted on or after January 1, 1981, shall be limited to those employers who employed the injured worker during a period of one year immediately preceding either the date of injury, as determined pursuant to section 5412, or the last date on which the employee was employed in an occupation exposing them to the hazards of the occupational disease or cumulative injury, whichever occurs first. (Lab. Code, § 5500.5(a).)
What proof carried it
The evidence the panel weighed, by kind.
Dr. Hatch's medical opinion was equivocal regarding whether there was one or two periods of cumulative trauma, and the record was insufficient to make a determination.
From the decision · page 8In this case, pursuant to section 3208.1, AME Dr. Hatch determined that applicant sustained industrial industry, however her testimony is equivocal as to the date of injury and whether one or more periods of cumulative trauma exist. Therefore, while there is substantial evidence to support the conclusion that applicant's injury was AOE/COE, we cannot determine based on the record before whether applicant sustained one or two cumulative injuries.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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