ADJ10991851 · April 3, 2025

The WCJ did not make the necessary factual determinations to establish the Labor Code section 5412 date of injury, so the issue was deferred for further development.

From the decision · page 6In this case, the WCJ did not determine when applicant (1) had knowledge sufficient to establish that she either knew, or in the exercise of reasonable diligence should have known, that her disability was caused by her employment; and (2) first suffered disability based upon medical evidence indicating when the cumulative effect of her injury ripened into disability. (See Lab. Code, § 5412; see also Federal Insurance Co. v. Workers' Comp. Appeals Bd. 221 Cal.App.4th 1116 [78 Cal.Comp.Cases 1257].

The issue of the period of liability under Labor Code section 5500.5 was deferred pending further development of the date of injury under section 5412.

From the decision · page 7We have explained that the last date of injurious exposure was September 22, 2017, and that the record requires further development as to the issue of the Labor Code section 5412 date of injury. Hence, upon further development of the record, the WCJ may determine the one-year period of liability under Labor Code section 5500.5(a) and then allocate liability between the defendant insurers based thereon. Accordingly, we will defer the issue of the Labor Code section 5500.5 period of liability.

Dr. Berman's opinion that the injury was a continuous cumulative trauma ending September 22, 2017.

Favours Applicant prevailed

This medical opinion supported the finding of cumulative injury but did not establish the Labor Code section 5412 date of injury, leading to deferral of that issue.

From the decision · page 3The AME Dr. Jeffrey Berman opined that although applicant reported a date of injury of 7/3/2013 that that injury was really a cumulative trauma. Dr. Berman states "I understand there is a claim of injury of 7/13/2013, for the same body parts as reflected in the letter by the parties. It should be noted that the records reflect not a specific mechanism but a continuous trauma." (See Exhibit X at page 19) Dr. Berman goes on to opine that there is only one continuous trauma date of injury ending 9/22/2017. He explains, "I do not believe that there is evidence to conclude with reasonable medical probability that there would be 2 periods of continuous trauma. I am concluding this is a continuum with continuous trauma that is responsible for this current condition that relates to the neck and left shoulder and to a lesser extent, the right shoulder." (See Exhibit X at page 19)... Defendant is correct that there is a discrepancy between the Joint Opinion on Decision and Joint Findings of Fact regarding the weekly PD rate. The WCJ would like to take this opportunity to correct this clerical error and the Petition for Reconsideration should be granted in part to correct this clerical error. The Findings of Fact regarding ADJ10991851 (MF) should be amended to read as follows:

Applicant sustained cumulative injury to cervical spine, left shoulder, and right shoulder up to September 22, 2017, as a continuous trauma rather than separate injuries.

Dr. Berman opined that the injury was a cumulative trauma with a continuous trauma date ending September 22, 2017, which was accepted by the WCJ and the Board.

From the decision · page 3The AME Dr. Jeffrey Berman opined that although applicant reported a date of injury of 7/3/2013 that that injury was really a cumulative trauma. Dr. Berman states "I understand there is a claim of injury of 7/13/2013, for the same body parts as reflected in the letter by the parties. It should be noted that the records reflect not a specific mechanism but a continuous trauma." (See Exhibit X at page 19) Dr. Berman goes on to opine that there is only one continuous trauma date of injury ending 9/22/2017. He explains, "I do not believe that there is evidence to conclude with reasonable medical probability that there would be 2 periods of continuous trauma. I am concluding this is a continuum with continuous trauma that is responsible for this current condition that relates to the neck and left shoulder and to a lesser extent, the right shoulder." (See Exhibit X at page 19)... Defendant is correct that there is a discrepancy between the Joint Opinion on Decision and Joint Findings of Fact regarding the weekly PD rate. The WCJ would like to take this opportunity to correct this clerical error and the Petition for Reconsideration should be granted in part to correct this clerical error. The Findings of Fact regarding ADJ10991851 (MF) should be amended to read as follows:

Labor Code section 5412

The date of injury in cumulative injury cases is when the employee first suffered disability and knew or should have known it was caused by employment (Labor Code section 5412).

The WCJ deferred making a determination on this date due to lack of factual findings.

From the decision · page 5Next, "[t]he date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment." (Lab. Code, § 5412.) Whether an employee knew or should have known his disability was industrially caused is a question of fact. (City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal.App.3d 467, 471 [50 Cal.Comp.Cases 53] (Johnson); Nielsen v. Workers' Comp. Appeals Bd. (1985) 164 Cal.App.3d 918, 927 [50 Cal.Comp.Cases 104]; Chambers v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 556, 559 [33 Cal.Comp.Cases 722].)

Labor Code section 5500.5

Liability for cumulative injury is limited to the employer during the one-year period preceding the date of injury (Labor Code section 5500.5).

The Board deferred the issue of liability period pending further development of the date of injury.

From the decision · page 6Labor Code section 5500.5(a) states that liability for cumulative injury is limited to the employer who employed the employee in the year preceding the "date of injury." This "date of injury" is either the last date of injurious exposure or the date of injury under Labor Code section 5412. (Lab. Code, § 5500.5.) The earliest of these two dates is the one that sets the one-year period of liability. The liable employer is then the employer that employed applicant during that last one- year period. (Id.)

Dr. Berman's medical opinion that the injury was a continuous cumulative trauma ending September 22, 2017.

From the decision · page 3The AME Dr. Jeffrey Berman opined that although applicant reported a date of injury of 7/3/2013 that that injury was really a cumulative trauma. Dr. Berman states "I understand there is a claim of injury of 7/13/2013, for the same body parts as reflected in the letter by the parties. It should be noted that the records reflect not a specific mechanism but a continuous trauma." (See Exhibit X at page 19) Dr. Berman goes on to opine that there is only one continuous trauma date of injury ending 9/22/2017. He explains, "I do not believe that there is evidence to conclude with reasonable medical probability that there would be 2 periods of continuous trauma. I am concluding this is a continuum with continuous trauma that is responsible for this current condition that relates to the neck and left shoulder and to a lesser extent, the right shoulder." (See Exhibit X at page 19)... Defendant is correct that there is a discrepancy between the Joint Opinion on Decision and Joint Findings of Fact regarding the weekly PD rate. The WCJ would like to take this opportunity to correct this clerical error and the Petition for Reconsideration should be granted in part to correct this clerical error. The Findings of Fact regarding ADJ10991851 (MF) should be amended to read as follows: