ADJ1663481 · March 6, 2024

The Appeals Board found the amended application changing the claim from specific injury to cumulative trauma was timely as it related back to the original filing, consistent with Bassett-Mcgregor and liberal pleading principles, thus not barred by the statute of limitations.

From the decision · page 5later opined, at first ambiguously, that applicant's claim may be more cumulative in nature. Applicant later amended the specific claim to be cumulative, after which the AME gave a clear opinion on causation via cumulative injury. Under the facts presented here, applicant's amended application was appropriate. The amendment from specific to cumulative alleges the same disability arising from the same set of facts. The AME opined that the specific event was in fact a part of the overall cumulative injury. Accordingly, we find that applicant's amended application filed on April 11, 2016, was both appropriate and timely as it related back to the initial filing.

Applicant amended his specific injury claim to a cumulative injury claim on April 11, 2016, which was timely and related back to the original filing.

Favours Applicant prevailed

This fact was determinative because it allowed the claim to proceed despite the statute of limitations challenge, leading to the rescission of the prior Findings and Order.

From the decision · page 5later opined, at first ambiguously, that applicant's claim may be more cumulative in nature. Applicant later amended the specific claim to be cumulative, after which the AME gave a clear opinion on causation via cumulative injury. Under the facts presented here, applicant's amended application was appropriate. The amendment from specific to cumulative alleges the same disability arising from the same set of facts. The AME opined that the specific event was in fact a part of the overall cumulative injury. Accordingly, we find that applicant's amended application filed on April 11, 2016, was both appropriate and timely as it related back to the initial filing.

Applicant sustained a single period of cumulative injury through last date of employment; the specific injury in 2002 was part of the overall cumulative injury; 25% of disability due to underlying degenerative disc disease, 25% to specific industrial injury, 50% to cumulative trauma.

The AME's opinion was found persuasive and supported the finding of a single cumulative injury period and timely filing of the amended claim.

From the decision · page 4apportioned to his specific industrial injury, and 50% to a cumulative trauma while working at Patton State Hospital for 20 years.

Code of Civil Procedure section 473(b)

Code of Civil Procedure section 473(b) protections apply in workers' compensation proceedings to relieve defendants from default or dismissal due to mistake or excusable neglect.

Applied to support relief from dismissal for technical noncompliance in pleadings.

From the decision · page 7These principles of liberal pleading are further reflected in section 5506, which authorizes the Appeals Board to relieve a defendant from default or dismissal due to mistake, inadvertence, surprise, or excusable neglect in accordance with Code of Civil Procedure section 473. The Court of Appeal has made it clear that the protections afforded under Code of Civil Procedure section 473(b) are applicable in workers' compensation proceedings. (Fox, supra, 4 Cal. App. 4th 1196.)

Bassett-Mcgregor v. Workers' Comp. Appeals Bd., 205 Cal. App. 3d 1102

An amended application substituting a claim for cumulative injury rather than specific injury does not constitute a new and different cause of action if it arises from the same set of facts and disability.

Applied to find the amended cumulative injury claim timely and related back to the original specific injury claim.

From the decision · page 5later opined, at first ambiguously, that applicant's claim may be more cumulative in nature. Applicant later amended the specific claim to be cumulative, after which the AME gave a clear opinion on causation via cumulative injury. Under the facts presented here, applicant's amended application was appropriate. The amendment from specific to cumulative alleges the same disability arising from the same set of facts. The AME opined that the specific event was in fact a part of the overall cumulative injury. Accordingly, we find that applicant's amended application filed on April 11, 2016, was both appropriate and timely as it related back to the initial filing.

WCAB Rule 10617

WCAB Rule 10617 (former Rule 10397) allows filing of documents subject to statute of limitations without rejection for technical defects.

Applied to support liberal pleading and filing principles favoring adjudication on the merits.

From the decision · page 6Cases 274]); (3) pleading should liberally construed so as not to defeat or undermine an injured employee's right to make a claim (Sarabi v. Workers' Comp. Appeals Bd. (2007) 151 Cal. App. 4th at pp. 925§ 926 [72 Cal. Comp. Cases 778]); Martino, supra, 103 Cal. App. 4th at p., 490; Rubio, supra, 165 Cal. App. 3d at pp. 199§ 201; Aprahamian, supra, 109 Cal. App. 3d at pp.152§ 153; Blanchard, supra, 53 Cal. App. 3d at pp. 594§ 595; Beaida, supra, 263 Cal. App. 2d at pp. 208§ 209); and (4) technically deficient pleadings, if they give notice and are timely, normally do not deprive the Board of jurisdiction (Bland, supra, 3 Cal. 3d at pp. 331§ 332 & see fn. 13; Rivera, supra, 190 Cal. App. 3d at p. 1456; Aprahamian, supra, 109 Cal. App. 3d at pp. 152§ 153; Blanchard, supra, 53 Cal. App. 3d at pp. 594§ 595; Beaida, supra, 263 Cal. App. 2d at pp. 208§ 210). Reflecting these principles, current WCAB Rule 10617 (former Rule 10397) provides:

The AME's opinion that the specific injury was part of the cumulative injury and that the cumulative injury claim was timely filed.

From the decision · page 4The parties presumably choose an AME because of the AME's expertise and neutrality. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114].) The Appeals Board will follow the opinions of the AME unless good cause exists to find the opinion unpersuasive. (Ibid.) Based upon our review of the record, the AME's opinion is persuasive. A single period of cumulative injury exists through applicant's last date of employment. The alleged specific injury in 2002 was but one microtrauma that was subsumed within the single period of cumulative injury. The sole question to answer is whether applicant timely filed or amended his application to plead cumulative injury.