ADJ9682348 · January 17, 2023

The amended application alleging a cumulative trauma injury relates back to the original application because the medical evidence supports a cumulative trauma injury and the claim was accepted and benefits paid accordingly, so the statute of limitations does not bar the amendment.

From the decision · page 1The California Insurance Guarantee Association (CIGA) seeks reconsideration of the April 14, 2020 Findings and Order wherein the workers' compensation administrative law judge (WCJ) found that the August 24, 2016 amendment to the application was barred by the statute of limitations. The applicant sought to amend the application to allege that he sustained a cumulative trauma rather than a specific injury.

Medical evidence consistently supported a cumulative trauma injury rather than a specific injury.

Favours Applicant prevailed

Supported finding that the amended application relates back to the original application and is not barred by statute of limitations.

From the decision · page 3The WCJ and the parties who filed petitions and answers herein all agree that the medical evidence has consistently supported a cumulative trauma injury and that there is no evidence that the injury was a specific injury. (Petition, p. 5, Answer, p. 3, Report, p. 5.)

Applicant and defendant both understood the injury was cumulative trauma and proceeded accordingly, including payment of benefits.

Favours Applicant prevailed

Supported equitable consideration that the amendment should relate back to the original application despite joinder of additional parties.

From the decision · page 5that, in this case, applicant knew he had sustained a cumulative trauma at the time he filed the application, and, in Bassett-McGregor, applicant discovered that the injury was a cumulative trauma injury based on medical evidence obtained after the application was filed. In this case, although the application was imperfectly filed as a specific rather than a cumulative trauma, defendant Lumberman's accepted the claim and began paying benefits. In essence, both defendant and applicant understood that applicant's injury was a cumulative trauma and behaved accordingly.

Found that applicant sustained a cumulative trauma injury.

From the decision · page 2Applicant was seen by Satish Kadaba, M.D., in the capacity of panel qualified medical examiner on September 17, 2015. Dr. Kadaba issued a report after the initial evaluation and a supplemental report on November 10, 2015. In both reports, Dr. Kadaba found that applicant sustained a cumulative trauma injury.

Applicant was totally temporarily disabled as a result of a cumulative trauma injury.

From the decision · page 2Applicant's employer, Staffing Network, referred applicant to Michael Bazel, M.D., who completed a Doctor's First Report of Occupational Injury or Illness. Dr. Bazel opined that applicant was totally temporarily disabled as a result of a cumulative trauma injury. (Exh. A, September 2, 2014, Michael Bazel, M.D., p. 2.)

Bassett-McGregor v. Workers' Comp. Appeals Bd. (1988) 205 Cal. App. 3d 1102

An amendment substituting a claim for cumulative rather than specific injury relates back to the original application if the disability is the same and the injury arose from the same set of facts.

Applied to find the amended application not barred by statute of limitations.

From the decision · page 4trial, the workers' compensation judge awarded benefits for the cumulative injury and denied applicant's initial claim for specific injury. The Appeals Board granted reconsideration and found that applicant's cumulative trauma claim was barred by the Section 5405 statute of limitations. The Court of Appeal reversed the Appeals Board explaining that in cases where an injury is pled as a specific injury, an amended application alleging a cumulative trauma injury will generally relate back to the original application. The Court explicitly held that "an amendment substituting a claim for cumulative rather than specific injury does not constitute a new and different cause of action..." (Bassett-McGregor, supra, at 1116.) However, the Court stated that its holding "is limited to circumstances such as these in which the disability is the same and the injury arose from the same set of facts and is consistent with the guiding principle that claims should be adjudicated on substance rather than formality of statement." (Ibid.)

Applicant testified insurance company paid disability benefits and provided medical treatment.

From the decision · page 2At trial, applicant testified that "the insurance company paid him disability benefits and also paid him disability benefits and also provided medical treatment." (January 13, 2020, Minutes of Hearing and Summary of Evidence (MOH/SOE), p.6.)