In State Compensation Insurance Fund v. Workers Compensation Appeals Board (2004 Daily Journal D.A.R. 7609, Cal.App. 2 Dist., June 24, 2004), the California Court of Appeal recently addressed the issue of whether the date of permanent disability can determine which employer is liable for an employee’s cumulative trauma injury.
Employee Monica Rodate sustained work-related carpal tunnel syndrome and tendonitis while employed at a sound equipment manufacturing plant from 1995 to August 1998, when she was terminated. Employee was employed by two different temporary agencies – Apple One from April 1995 to February 28, 1998, and Temptrak from March 1, 1998, to August 7, 1998. In Employee’s claim for workers’ compensation benefits, the workers’ compensation court and workers compensation appeals board determined the date of Employee’s injury was August 7, 1997, to August 7, 1998, i.e., the year preceding her termination. Based on the date of injury, Temptrak’s Insurer, State Compensation Insurance Fund, was ordered to pay the entire permanent disability award. State Fund appealed, claiming it was not liable for any of the award, because the workers’ compensation court and the appeals board had miscalculated the date of injury.
Appellate Court Decision
The applicable portion of Labor Code § 5500.5(a) limits liability for cumulative injury (such as carpal tunnel syndrome) to those employers who employed the injured employee during the year “[i]mmediately preceding . . . 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 . . . cumulative injury, whichever comes first.” (Emphasis added.) According to § 5412, the “date of injury” in a cumulative injury case is the date when “the employee first suffered disability [from the injury] and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment.”
The Court of Appeal addressed the issue of what was meant by the word “disability.” The Court rejected the appeals board’s conclusion that disability occurs when an employee first suffers compensable temporary disability that results in wage loss. According to the Court, the term “disability” includes both temporary and permanent disability. Consequently, the court sent the case back to the workers’ compensation court to determine whether permanent disability existed prior to the last date of Employee’s employment. If so, the date of injury may precede the period of time that Employee was employed by Temptrak, and Temptrak may not be liable. The Court noted that, in making this decision, medical treatment, the need for splints, and modified work could be considered evidence of permanent disability.
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