New Developments in Case Law Provide Direction on Establishing an Applicant’s Date of Injury under Labor Code §5412
A recent decision issued by the WCAB panel has given clarification on when an applicant’s date of injury can be established in a cumulative trauma claim.
In the recent case of Merino v. Ventura County Fire Department (ADJ14007579), the board issued their order overturning the F&O of the WCJ. The WCJ had deemed the applicant’s date of injury for a cumulative trauma to the left hip to be December 14, 2020 (the date listed on the application) and that the applicant was entitled to temporary disability benefits from March 5, 2021 the present and LC §4850 benefits for up to one year.
The Defendants contention was that the applicant’s cumulative trauma claim should run concurrently with the applicant’s other injuries which had already caused a period of temporary disability. The defense also contended that the applicant’s date of injury should run through the last date of work which was April 11, 2019, which would have also triggered the statute of limitations under LC §5412 and limited LC §4850 benefits to those that were already paid for a heart claim that ran along the defenses alleged timeframe.
The WCAB found that the applicant was not disabled at the last day of work/last date of injurious exposure, but rather almost a year later on March 5, 2021 when the primary treating physician first issued limitations for the left hip. The QME in this matter opined that the applicant was temporarily disabled as of this date. They found that the applicant had not been temporarily disabled for injury to the left hip on the last date of work on April 15, 2019 because there was no substantial medical evidence to support any limitations to the applicant’s ability to work because of the hip. Furthermore, while the employer offered a return to work with modifications in September 2020 and attempted to engage in the interactive process in February 2021, however these proposed modifications were not for injury to the hip injury and only related to the heart claim running at the time.
Additionally, the WCAB found that since the date of injury did not overlap with the previously mentioned heart claim, LC §4850 benefits were to be paid for the temporary disability period. However, the WCAB also stated that because the applicant had a valid service retirement with PERS, there would be a credit for any payments of advanced disability pension benefits. The applicants date of retirement would therefore cut off any temporary disability despite the applicant still being disabled due to conflicting reports of the applicant’s MMI status.
Therefore, this decision tells us that the LC §5412 date of injury is different from the injurious exposure section under LC §5500.5. This means that while the period of liability for a cumulative trauma is limited to the last year of exposure, under LC §5412 the actual date of injury does not occur until the applicant first becomes disabled and that the applicant has reason to know that their disability is work related. The purpose of LC §5412 is to consider the possibility that the date of injury may occur after an employee is no longer working in the employment which caused their injury. It is due to this application of LC §5412 that the WCAB is able to then substitute their own findings that the applicant did not suffer an injury sufficient to cause disability until March 2021 despite having knowledge of the injury in December of 2020. This in turn led to the WCAB finding that the applicant was eligible for LC §4850 benefits in addition to LC §4850 that were already paid previously, minus credits for retirement benefits paid due to a valid service retirement. Essentially, due to a lack of medical evidence showing that the applicant was ever disabled for the left hip, the date of injury was changed, removing any discussion of the statute of limitations and mitigation of LC §4850 benefits to be paid.