ADJ3246274 · September 4, 2025

The date of injury under Labor Code section 5412 is May 14, 2002, based on the concurrence of knowledge and disability when applicant was taken off work and paid temporary disability. The period of liability under Labor Code section 5500.5 is May 14, 2001 through May 14, 2002, as the date of injury controls liability determination. CIGA's petition to dismiss was denied because Quest and Travelers did not have coverage during the period of liability, so CIGA remains properly joined. The issue of Travelers' dismissal was deferred.

From the decision · page 72. Pursuant to Labor Code section 5412, applicant's date of injury is May 14, 2002.

CIGA's liability is limited to covered claims excluding those covered by other insurance; Quest and Travelers did not have coverage during the period of liability, so CIGA remains properly joined and dismissal petition denied.

Favours Defendant prevailed

Determines proper party joinder and denial of dismissal petition for CIGA.

From the decision · page 7CIGA's liability is defined by Insurance Code section 1063.1 wherein CIGA's liability is limited to "covered claims." A "covered claim," pursuant to Insurance Code section 1063.1 (c)(9)(A) explicitly excludes "A claim to the extent it is covered by any other insurance of a class covered by this article available to the claimant or insured."

Applicant filed a claim form on March 18, 2002, alleging bilateral wrist injury and later received temporary disability payments starting May 14, 2002 after surgery.

Favours Applicant prevailed

This established the concurrence of knowledge and disability, fixing the date of injury under Labor Code section 5412.

From the decision · page 5With respect to the issue of knowledge, here, it is undisputed that applicant filed a claim form alleging that her bilateral wrists were injured as the result of her employment on March 18, 2002. (Defense Exhibit A.) The medical record from Dr. Osborne seems to suggest that as of April 25, 2002, applicant was working with work restrictions on modified duty. (Defense Exhibit B.)

Applicant's date of injury under Labor Code section 5412 is May 14, 2002, based on the concurrence of knowledge and disability when taken off work and paid temporary disability.

Favours Applicant prevailed

Controls the determination of the period of liability under Labor Code section 5500.5 and liability issues.

From the decision · page 72. Pursuant to Labor Code section 5412, applicant's date of injury is May 14, 2002.

Diagnosed bilateral carpal tunnel syndrome and left ulnar nerve entrapment; noted injury arising out of industrial exposure; found applicant permanent and stationary after surgery on May 14, 2002.

Supports injury and disability timing relevant to date of injury and period of liability.

From the decision · page 2Eventually applicant was referred to orthopedist Vic Osborne, M.D., for an initial orthopedic consultation on April 25, 2002. (Defense Exhibit B.) In the history, he noted that her employer referred her to US Healthworks where she had treated for her right and left wrists since March 22, 2002. She was working modified duty at the time of the evaluation with Dr. Osborne, but the restrictions were not outlined in this report. She was diagnosed with bilateral carpal tunnel syndrome and apparent left ulnar nerve entrapment. Dr. Osborne states, "it appears that this patient did sustain an injury to her upper extremities arising out of and caused by her industrial exposure." (Id. p. 5.) The only other treatment report admitted into evidence is the report of Dr. Osborne dated September 19, 2002, wherein he found applicant to be permanent and stationary. (Defense Exhibit C.) However, as relevant here is the notation that applicant had carpal tunnel release surgery on May 14, 2002.

Attributed injury to repetitive work activities; opined one long cumulative injury period rather than two separate periods; did not specify last injurious exposure date.

Opinion on cumulative injury period and exposure relevant to liability period determination.

From the decision · page 3Applicant was referred to an Agreed Medical Evaluator (AME), Dr. Jeffrey Berman, who evaluated applicant for the first time on April 17, 2006. AME Dr. Berman attributes applicant's injury to the upper extremities to repetitive activities at work. (Applicant Exhibit 1.) He noted that she last worked in 2005.

Labor Code section 5412

Date of injury under Labor Code section 5412 is the date when the employee first suffered disability and knew or should have known it was caused by employment.

Applied to determine the date of injury based on knowledge and disability concurrence.

From the decision · page 5The date of injury as defined by section 5412 is the 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." Whether an employee knew or should have known their 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]; 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

Period of liability under Labor Code section 5500.5 is limited to the year immediately preceding the date of injury or last injurious exposure, whichever occurs first.

Applied to determine the period of liability for cumulative injury.

From the decision · page 6Section 5500.5 determines employer liability for a cumulative injury. Liability is limited to the employers who employed the employee during the year immediately preceding, "either the date of injury, as determined by section 5412, or the last date on which the employee was employed in an occupation exposing him or her to the hazards of occupational disease or injury, whichever occurs first." (Emphasis added.) Significantly, section 5500.5 does not determine the period of injurious exposure.

Insurance Code section 1063.1

CIGA's liability is limited to covered claims excluding those covered by other insurance under Insurance Code section 1063.1.

Applied to determine CIGA's proper joinder and denial of dismissal petition.

From the decision · page 7CIGA's liability is defined by Insurance Code section 1063.1 wherein CIGA's liability is limited to "covered claims." A "covered claim," pursuant to Insurance Code section 1063.1 (c)(9)(A) explicitly excludes "A claim to the extent it is covered by any other insurance of a class covered by this article available to the claimant or insured."

Applicant filed a claim form alleging bilateral wrist injury on March 18, 2002, and received temporary disability payments starting May 14, 2002 after surgery, indicating knowledge and disability concurrence.

From the decision · page 5With respect to the issue of knowledge, here, it is undisputed that applicant filed a claim form alleging that her bilateral wrists were injured as the result of her employment on March 18, 2002. (Defense Exhibit A.) The medical record from Dr. Osborne seems to suggest that as of April 25, 2002, applicant was working with work restrictions on modified duty. (Defense Exhibit B.)