ADJ7454093 · December 30, 2022

The 9-month break in employment with no medical treatment or disability between two periods of injurious exposure establishes two separate cumulative trauma injuries rather than one continuous injury.

From the decision · page 6The carrier for Kin during this period of injury, September of 2006 through November of 2006, State Compensation Insurance Fund, has accepted liability for injury to the neck, low back, wrists, hands and upper extremities. State Fund and the applicant have already resolved any dispute over temporary disability through stipulations and order dated 10/3/2012. Procedurally, the case has gone through a complicated history of trial and appeal, culminating in the trial of 8/10/21, which proceeded on the sole issue of whether there are one, two or more dates of injury.

Applicant took about 9 months off work with no medical treatment or disability between two periods of injurious exposure.

Favours Defendant prevailed

This break established two separate cumulative trauma injuries rather than one continuous injury.

From the decision · page 6III. DISCUSSION First, petitioner's reference to LC section 5500.5 is misplaced, as that section defines which entity has liability within a single cumulative trauma period, but only once the limits of the cumulative trauma period have been established. That is not the question here. There is no dispute that the applicant's activities as a heavy equipment operator during the periods in question were injurious. The only dispute to resolve is whether there were two cumulative trauma periods, separated by 9 months or so of inactive unemployment, during which the applicant was consciously trying to rest and recover, received no medical treatment, and during which he testified he would not have accepted an offer of employment even had employment come his way. Per LC section 3208.1(b), a cumulative trauma is defined as "...repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes either disability or need for treatment." In Mr.

No medical treatment or disability during the 9 month break between cumulative trauma periods.

Favours Defendant prevailed

Supports the finding of two separate cumulative trauma injuries under LC section 3208.1.

From the decision · page 8Although he had two periods of disability, i.e., the inability to work, those two periods of disability were connected by a continuous need for medical treatment all caused by a single work-related cumulative injury-stress induced depression. There was thus no time between 1985 and the present that Austin did not have a compensable injury." The facts in our case show that petitioner received no medical treatment during the 9 month break, and no doctor took him off work on temporary or permanent disability during those months.

Did not acknowledge the 9 months off work separating the two work periods and deferred to the trier of fact for final decision, rendering his opinion not substantial evidence on the issue of cumulative trauma periods.

Inaccurate history and confusion on the critical issue of the 9-month break between work periods.

From the decision · page 711/06), and petitioner agrees that cumulative trauma occurred on that job. Therefore, all parties agree that injurious exposure occurred during the Highway 50 work. The key question the crux is whether the nine months of inactivity between these two periods of undisputed cumulative trauma creates a sufficient break to establish two separate CT periods, or one continuous CT period beginning in July of 2005 and ending with the termination of work on the Highway 50 job. The medical record is unhelpful in this case. Petitioner agrees with this judge that Dr. Ramsey's opinions are not substantial evidence, but contrary to petitioner's contentions, neither are the opinions of Dr. Shalom or Dr. Barber, at least on the question submitted for decision. Dr. Barber, in Applicant's Exhibit 1, did not acknowledge the 9 months off work that separate the applicant's two work periods, indicating that he thought the applicant's employment was continuous for the entire 13 months (see page 22). He further speculated on two separate scenarios for injury, and then deferred to the trier of fact for a final decision. This inaccurate history and confusion of opinion on the critical issue render his reporting not substantial evidence. Dr.

Failed to understand or analyze the significance of the 9-month break between work periods, thus not substantial evidence on the issue of cumulative trauma periods.

Lack of knowledge of the 9-month break and absence of analysis on its significance.

From the decision · page 7Shalom does no better, failing in his multiple reports and deposition to express an understanding of the 9 month break between the Dana/South Stream job and the Highway 50 job. As he demonstrated no knowledge of this period off work, he was not able to offer any analysis of the significance of the nine month break, or lack thereof. Without a correct history, and in the absence of any analysis of the central issue presented, his opinions likewise on this issue cannot be substantial evidence. Looking then to the evidence we do have, it is undisputed that there was injurious exposure at the three jobs. It is likewise undisputed that the applicant took about 9 months off between them, where he purposely did little physical activity in an effort to heal, and offered unrebutted testimony under oath that he would not have accepted employment driving heavy machinery had it been offered. He could recall no medical treatment during those 9 months. It wasn't until he was running out of money that he took the Highway 50 job, and as he feared, this work also resulted in further injury and permanent worsening of his symptoms. The cases of Aetna Cas. & Surety Co. v. WCAB (Coltharp) (1973) 38 CCC 720, and Western Growers Ins. Co. v. WCAB (Austin) (1993) 58 CCC 323 provide certain tests to determine the question of cumulative trauma.

Labor Code section 3208.1

LC section 3208.1 defines cumulative trauma as repetitive mentally or physically traumatic activities over time causing disability or need for treatment.

Used to determine the existence of cumulative trauma periods.

From the decision · page 6III. DISCUSSION First, petitioner's reference to LC section 5500.5 is misplaced, as that section defines which entity has liability within a single cumulative trauma period, but only once the limits of the cumulative trauma period have been established. That is not the question here. There is no dispute that the applicant's activities as a heavy equipment operator during the periods in question were injurious. The only dispute to resolve is whether there were two cumulative trauma periods, separated by 9 months or so of inactive unemployment, during which the applicant was consciously trying to rest and recover, received no medical treatment, and during which he testified he would not have accepted an offer of employment even had employment come his way. Per LC section 3208.1(b), a cumulative trauma is defined as "...repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes either disability or need for treatment." In Mr.

Labor Code section 5500.5

LC section 5500.5 defines liability within a single cumulative trauma period once the limits of the period are established.

Clarifies liability but not the limits of cumulative trauma periods.

From the decision · page 6III. DISCUSSION First, petitioner's reference to LC section 5500.5 is misplaced, as that section defines which entity has liability within a single cumulative trauma period, but only once the limits of the cumulative trauma period have been established. That is not the question here. There is no dispute that the applicant's activities as a heavy equipment operator during the periods in question were injurious. The only dispute to resolve is whether there were two cumulative trauma periods, separated by 9 months or so of inactive unemployment, during which the applicant was consciously trying to rest and recover, received no medical treatment, and during which he testified he would not have accepted an offer of employment even had employment come his way. Per LC section 3208.1(b), a cumulative trauma is defined as "...repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes either disability or need for treatment." In Mr.

Aetna Cas. & Surety Co. v. WCAB (Coltharp) (1973) 38 CCC 720; Western Growers Ins. Co. v. WCAB (Austin) (1993) 58 CCC 323

Tests from Aetna Cas. & Surety Co. v. WCAB (Coltharp) and Western Growers Ins. Co. v. WCAB (Austin) help determine the number of cumulative trauma injuries based on medical treatment continuity and disability.

Applied to assess whether the 9-month break constituted separate cumulative trauma injuries.

From the decision · page 7Shalom does no better, failing in his multiple reports and deposition to express an understanding of the 9 month break between the Dana/South Stream job and the Highway 50 job. As he demonstrated no knowledge of this period off work, he was not able to offer any analysis of the significance of the nine month break, or lack thereof. Without a correct history, and in the absence of any analysis of the central issue presented, his opinions likewise on this issue cannot be substantial evidence. Looking then to the evidence we do have, it is undisputed that there was injurious exposure at the three jobs. It is likewise undisputed that the applicant took about 9 months off between them, where he purposely did little physical activity in an effort to heal, and offered unrebutted testimony under oath that he would not have accepted employment driving heavy machinery had it been offered. He could recall no medical treatment during those 9 months. It wasn't until he was running out of money that he took the Highway 50 job, and as he feared, this work also resulted in further injury and permanent worsening of his symptoms. The cases of Aetna Cas. & Surety Co. v. WCAB (Coltharp) (1973) 38 CCC 720, and Western Growers Ins. Co. v. WCAB (Austin) (1993) 58 CCC 323 provide certain tests to determine the question of cumulative trauma.

Applicant took about 9 months off work doing little physical activity to heal, with unrebutted testimony he would not have accepted employment during that time.

From the decision · page 6III. DISCUSSION First, petitioner's reference to LC section 5500.5 is misplaced, as that section defines which entity has liability within a single cumulative trauma period, but only once the limits of the cumulative trauma period have been established. That is not the question here. There is no dispute that the applicant's activities as a heavy equipment operator during the periods in question were injurious. The only dispute to resolve is whether there were two cumulative trauma periods, separated by 9 months or so of inactive unemployment, during which the applicant was consciously trying to rest and recover, received no medical treatment, and during which he testified he would not have accepted an offer of employment even had employment come his way. Per LC section 3208.1(b), a cumulative trauma is defined as "...repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes either disability or need for treatment." In Mr.

No medical treatment or disability during the 9 month break between cumulative trauma periods.

From the decision · page 8Although he had two periods of disability, i.e., the inability to work, those two periods of disability were connected by a continuous need for medical treatment all caused by a single work-related cumulative injury-stress induced depression. There was thus no time between 1985 and the present that Austin did not have a compensable injury." The facts in our case show that petitioner received no medical treatment during the 9 month break, and no doctor took him off work on temporary or permanent disability during those months.