ADJ7763838 · May 19, 2025

The court found that the December 15, 2009 report of Dr. Nelson did not provide sufficient knowledge to fix the date of injury for cumulative trauma. The first report that clearly defined the cumulative trauma injury was the November 17, 2010 report, establishing the §5412 date of injury. The application filed on April 27, 2011 was timely under the statute of limitations.

From the decision · page 4In the instant matter, defendant Zenith is taking the position that the December 15, 2009 report of Dr. Nelson (Exhibit X1) sufficiently put CIGA on notice of the existence of a cumulative trauma claim so as to establish that same date as the § 5412 date of injury. Zenith argues that CIGA is a sophisticated party, and that therefore, the language in Dr. Nelson's report was sufficient to place it on notice of the potential existence of applicant's cumulative trauma injury.

The December 15, 2009 report of Dr. Nelson did not use the term 'cumulative trauma' and deferred apportionment discussion pending further review.

Favours Defendant prevailed

This report was found insufficient to establish knowledge of a cumulative trauma injury for purposes of Labor Code §5412 date of injury.

From the decision · page 4""As for apportionment, it is clear that she had a specific injury. There have been clear periods of trauma after this. This includes a period where her symptoms were significantly absent after her first operation. In the joint letter, a deposition has been alluded to and I realize that it has not yet been forwarded to our office. I believe, at this time, I will defer her apportionment discussion until I receive her deposition and am able to compare her thoughts on her injuries and trauma to the current records. At that time, I will issue a supplemental on the apportionment status between continuous traumas and specific injury." (emphasis added).

The November 17, 2010 report of Dr. Nelson clearly defined a continuous trauma period after the applicant's return to work from her first operation.

Favours Applicant prevailed

This report was the first to satisfy the knowledge prong of Labor Code §5412, fixing the date of injury for the cumulative trauma claim.

From the decision · page 5In the instant case, the first medical report which clearly and unequivocally set forth the existence of a separate cumulative trauma injury was the later Nelson reportof November 17, 2010. This is the first and only report that describes a defined period of industrial cumulative trauma after applicant returns to work from her operation. Thus, the parties cannot be charged with knowledge of cumulative trauma until the issuance of Dr. Nelson's November 17, 2010 report.

CIGA filed the cumulative trauma application on April 27, 2011, within one year of the November 17, 2010 date of injury.

Favours Applicant prevailed

This filing was timely under the statute of limitations set by Labor Code §5405, making the application valid and not barred by limitations.

From the decision · page 3During the pendency of that claim, the parties agreed to utilize the services of Dr. Russell Nelson, M.D. as Agreed Medical Examiner. Based on the reporting of Dr. Nelson, on April 27, 2011, CIGA filed an application for adjudication of claim in case ADJ7763838, claiming a May 14, 1999, to August 1, 2006 cumulative trauma injury to the same body parts and naming subsequent insurers SCIF1

Dr. Nelson's December 15, 2009 report did not use the term 'cumulative trauma' and deferred apportionment discussion pending further review. His November 17, 2010 report clearly defined a continuous trauma period after the applicant's return to work, establishing the knowledge date for cumulative trauma injury under Labor Code §5412.

The court relied on Dr. Nelson's November 17, 2010 report as the first medical report that clearly and unequivocally set forth the existence of a separate cumulative trauma injury, establishing the §5412 date of injury.

From the decision · page 4""As for apportionment, it is clear that she had a specific injury. There have been clear periods of trauma after this. This includes a period where her symptoms were significantly absent after her first operation. In the joint letter, a deposition has been alluded to and I realize that it has not yet been forwarded to our office. I believe, at this time, I will defer her apportionment discussion until I receive her deposition and am able to compare her thoughts on her injuries and trauma to the current records. At that time, I will issue a supplemental on the apportionment status between continuous traumas and specific injury." (emphasis added).

Labor Code §5412

Labor Code §5412 date of injury definition and application

The court applied the definition of date of injury to determine when the parties had knowledge of the cumulative trauma injury for statute of limitations purposes.

From the decision · page 6Labor Code § 5412 provides that "the date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and

Labor Code §5405

Statute of limitations under Labor Code §5405

The court applied the one-year filing period from the date of injury under Labor Code §5405 to determine timeliness of the application.

From the decision · page 4The determination of the § 5412 date of injury necessarily decides the issue of whether the application in case ADJ7763838 was timely filed, or if instead, the same is time-barred by the statute of limitations as set forth in Labor Code § 5405.

The December 15, 2009 report of Dr. Nelson did not provide sufficient information to place any party on notice of a bounded, industrial cumulative trauma claim.

From the decision · page 4""As for apportionment, it is clear that she had a specific injury. There have been clear periods of trauma after this. This includes a period where her symptoms were significantly absent after her first operation. In the joint letter, a deposition has been alluded to and I realize that it has not yet been forwarded to our office. I believe, at this time, I will defer her apportionment discussion until I receive her deposition and am able to compare her thoughts on her injuries and trauma to the current records. At that time, I will issue a supplemental on the apportionment status between continuous traumas and specific injury." (emphasis added).

The November 17, 2010 report of Dr. Nelson clearly defined a continuous trauma period after the applicant's return to work, satisfying the knowledge prong of Labor Code §5412.

From the decision · page 5In the instant case, the first medical report which clearly and unequivocally set forth the existence of a separate cumulative trauma injury was the later Nelson reportof November 17, 2010. This is the first and only report that describes a defined period of industrial cumulative trauma after applicant returns to work from her operation. Thus, the parties cannot be charged with knowledge of cumulative trauma until the issuance of Dr. Nelson's November 17, 2010 report.