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CUMULATIVE TRAUMA (CT)

Types of injuries are defined in Labor Code §3208.1: "An injury may be either: (a) "specific," occurring as the result of one incident or exposure which causes disability or need for medical treatment; or (b) "cumulative," occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment. The date of a cumulative injury shall be the date determined under Section 5412."  

Labor Code §5412: "The date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment." See Date of Injury and SCIF v. WCAB (Rodarte) (2004) 119 CA4th 998:

“In summary, we conclude that either compensable temporary disability or permanent disability is required to satisfy section 5412. Medical treatment alone is not disability, but it may be evidence of compensable permanent disability, as may a need for splints and modified work. These are questions for the trier of fact to determine and may require expert medical opinion.”

In Beveridge v. IAC (1959) 175 CA2d 592, the Court opined,

“We think the proposition irrefutable that while a succession of slight injuries in the course of employment may not in themselves be disabling, their cumulative effect in work effort may become a destructive force. The fact that a single but slight work strain may not be disabling does not destroy its causative effect, if in combination with other such strains, it produces a subsequent disability. The single strand, entwined with others, makes up the rope of causation.

The fragmentation of injury, the splintering of symptoms into small pieces, the atomization of pain into minor twinges, the piecemeal contribution of work-effort to final collapse, does not negate injury. The injury is still there, even if manifested in disintegrated rather than in total, single impact. In reality the only moment when such injury can be visualized as taking compensative form is the date of last exposure, when the cumulative effect causes disability.”

In order to prevent the merging of separate specific or cumulative injuries, in 1968 the legislature created "anti-merger" statutes, so as to untangle the Beveridge "rope of causation" and "deal with the judicially evolved doctrine of merger of specific injuries into cumulative trauma injuries." (Zenith Ins. Co. v. WCAB (Thweatt) (1981) 124 Cal.App.3d 176.

Labor Code §3208.2:

"When disability, need for medical treatment, or death results from the combined effects of two or more injuries, either specific, cumulative, or both, all questions of fact and law shall be separately determined with respect to each such injury, including, but not limited to, the apportionment between such injuries of liability for disability benefits, the cost of medical treatment, and any death benefit."

Labor Code §5303:

"There is but one cause of action for each injury coming within the provisions of this division. All claims brought for medical expense, disability payments, death benefits, burial expense, liens, or any other matter arising out of such injury may, in the discretion of the appeals board, be joined in the same proceeding at any time; provided, however, that no injury, whether specific or cumulative, shall, for any purpose whatsoever, merge into or form a part of another injury; nor shall any award based on a cumulative injury include disability caused by any specific injury or by any other cumulative injury causing or contributing to the existing disability, need for medical treatment or death."

To mitigate the effects of the "anti-merger" statutes, the WCAB en banc in Ferguson v. City of Oxnard (1970) 35 CCC 452 found:

 "[T]he statute of limitations does not necessarily commence to run upon an employee's claim for injury, despite the fact that the claim itself may have come into existence. This is so because the proviso of [LC  §3208.1] defines the date of a cumulative injury as the date of disability caused thereby. Thus it may be that an employee's activities have given rise to the occurrence of a separate injury and thus the accrual of a right of action, in that the activities or their cumulative effect have caused a need for medical treatment. However, if the employment activities have not yet caused any disability, there has been no "date of injury" as defined by the proviso of  [LC  §3208.1], so that under [LC §5405] the statute of limitations has not yet commenced to run."

Labor Code §5500.5 limited liability for occupational disease or cumulative injury claims to the insured employer during the last year "immediately preceding either the date of injury, as determined pursuant to Section 5412, or the last date on which the employee was employed in an occupation exposing him or her to the hazards of the occupational disease or cumulative injury, whichever occurs first." Employers may seek to apportion liability by petitioning for contribution.

The advent of the Benson case and near-extinction of the Wilkinson doctrine, and the Brodie decision (see Apportionment) make the "anti-merger" law more significant for the injured worker, as the result may be a level of disability with the permanent disability money atomized into separate parcels, each at a lower rate.

It is essential to consider alternative theories of the case, such as Compensable Consequences.


Label Item Links Comments
Labor Code See above  
 

 
Regulations/Rules  
Cases Beveridge v. IAC (1959) 175 CA2d 592: oft-quoted definition

Zenith Ins. Co. v. WCAB (Thweatt) (1981) 124 Cal.App.3d 176:

Aetna Cas. & Sur. Co. v. WCAB (Coltharp) (1973) 35 Cal.App.3d 329: The court found a finding of two distinct periods of disability and need for medical treatment was inconsistent with the finding of a single cumulative injury and annulled the award. (read in conjunction with Western Growers below)

Western Growers Ins. Co. v. WCAB (1993)
16 Cal. App. 4th 227: "Section 3208.2 applies to the combination of injuries, not periods of disability. Under section 3208.1, an injury causing a need for medical treatment is compensable even in the absence of disability...Aetna is distinguishable from this case. Here Austin had only one continuous compensable injury. Unlike Aetna, Austin's two periods of temporary disability were linked by the continued need for medical treatment. The two periods of temporary disability were not "distinct" as was the case in Aetna, nor were they instigated by separate specific incidents.
Beveridge v. IAC


Zenith Ins. Co. v. WCAB (Thweatt)

Aetna Cas. & Sur. Co. v. WCAB (Coltharp)





Western Growers Ins. Co. v. WCAB
 
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