ADJ6818414 · September 28, 2021

The Board found that the applicant's date of injury under Labor Code section 5412 was June 2, 2009, after the last date of injurious exposure, and denied Mitsui's Petition for Contribution because Mitsui insured the employer during the last year of injurious exposure.

From the decision · page 1Mitsui Sumitomo Insurance Company (Mitsui) seeks reconsideration of the July 12, 2021 Findings and Order wherein the workers' compensation arbitrator denied Mitsui's Petition for Contribution because applicant's Labor Code section 5412 date of injury was after his last date of employment and Mitsui insured applicant's employer during the last year of industrial exposure.1 The arbitrator found that "applicant's date of cumulative trauma, as defined by the provisions of Labor Code § 5500.5 and § 5412, to be June 16, 2007 through June 16, 2008." The arbitrator denied Mitsui's Petition for Contribution.

Applicant's date of injury under Labor Code section 5412 is June 2, 2009, after last date of injurious exposure.

Favours Defendant prevailed

This date controls the limitation period and liability for contribution among defendants.

From the decision · page 5FINDINGS OF FACT 1. Applicant's date of injury as defined by Labor Code section 5412 is June 2, 2009. 2. Applicant's last year of injurious exposure pursuant to Labor Code section 5500.5 was June 16, 2007 through June 16, 2008. 3. Mitsui Sumitomo Insurance Company of America is solely liable for applicant's cumulative trauma injury.

Medical evidence from Dr. Alpern establishes cumulative trauma through last day of work on June 16, 2008.

Favours Applicant prevailed

Supports the finding of the date of injury and liability for contribution.

From the decision · page 8In this case, unlike McGregor, the applicant, in fact, alleged injury on a cumulative trauma basis through his last day of work and, in this case, there is substantial medical evidence from Dr. Alpern that the applicant, in fact, suffered a cumulative trauma through his last day of work on 6/16/2008.

Dr. Alpern testified that the applicant's hypertension was caused by continued work through the last day of employment, contributing to the cumulative trauma injury.

Medical evidence established a cumulative trauma through the last day of work on June 16, 2008, supporting the finding of the date of injury and liability.

From the decision · page 8Dr. Alpern was selected and served as the Panel Qualified Medical Evaluator in internal medicine and his deposition was taken on 6/23/2016 (Mitsui's 7/30/2021 Petition for Reconsideration, Page 3, Lines 17-18).

Labor Code section 5412

Date of injury for cumulative injury is when employee first suffered disability and knew or should have known it was caused by employment (Labor Code section 5412).

Applied to determine applicant's date of injury for cumulative trauma.

From the decision · page 2"For the purpose of establishing the date of injury, section 3208.1 distinguishes between `specific' and `cumulative' injuries." (Bassett-McGregor v. Workers' Comp. Appeals Bd. (1988) 205 Cal. App. 3d 1102, 1109-1110 [53 Cal.Comp.Cases 502]; see also Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 234 [58 Cal.Comp.Cases 323].) A specific injury occurs "as the result of one incident or exposure which causes disability or need for medical treatment," while a cumulative injury results from "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 date of injury for a cumulative injury "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.)

Labor Code section 5500.5

Liability for occupational disease or cumulative injury claims is limited to last year of injurious exposure (Labor Code section 5500.5).

Applied to determine liability among defendants for cumulative trauma injury.

From the decision · page 5FINDINGS OF FACT 1. Applicant's date of injury as defined by Labor Code section 5412 is June 2, 2009. 2. Applicant's last year of injurious exposure pursuant to Labor Code section 5500.5 was June 16, 2007 through June 16, 2008. 3. Mitsui Sumitomo Insurance Company of America is solely liable for applicant's cumulative trauma injury.

Medical evidence from Dr. Alpern showing cumulative trauma through last day of work.

From the decision · page 8In this case, unlike McGregor, the applicant, in fact, alleged injury on a cumulative trauma basis through his last day of work and, in this case, there is substantial medical evidence from Dr. Alpern that the applicant, in fact, suffered a cumulative trauma through his last day of work on 6/16/2008.