ADJ11292762 · May 26, 2021

Applicant did not present evidence of compensable disability in 2017, so there was no basis for a second cumulative trauma injury; thus, the later application was duplicative and subject to dismissal.

From the decision · page 71. The application in ADJ127220128 claims an injury for the same body parts and time period as the application in ADJ11292762. 2. Pursuant to WCAB Rule 10455, the later filed application is subject to summary dismissal. 3. The issue of Defendant's Petition for Costs and Sanctions is deferred with jurisdiction reserved at the trial level.

The issue of sanctions is deferred with jurisdiction reserved at the trial level.

From the decision · page 71. The application in ADJ127220128 claims an injury for the same body parts and time period as the application in ADJ11292762. 2. Pursuant to WCAB Rule 10455, the later filed application is subject to summary dismissal. 3. The issue of Defendant's Petition for Costs and Sanctions is deferred with jurisdiction reserved at the trial level.

Applicant did not testify to missing work for medical reasons, seeking medical treatment, or having modified duties in 2017.

Favours Defendant prevailed

Without evidence of disability in 2017, there was no basis for a second cumulative trauma injury, making the later application duplicative and subject to dismissal.

From the decision · page 5At the January 13, 2020 hearing regarding whether applicant's attorney filed duplicative applications, applicant's burden was to show that it is possible that she sustained two cumulative trauma injuries and that she did not file two applications for the same injury in violation of WCAB Rule 10455. As discussed above, to recover for a 2017 injury and a 2018 injury, applicant must show, among other things, that she sustained compensable disability in 2017. In this case, the only evidence applicant's attorney offered on this issue was applicant's testimony. Applicant did not testify that she missed work for medical reasons, sought medical treatment, or had modified duties in 2017. Absent evidence of disability in 2017, pursuant to Section 5412, applicant sustained one injurynot two. Accordingly, we will dismiss the second cumulative trauma application pursuant to WCAB Rule 10455. We will dismiss the application without prejudice. If additional evidence shows that applicant sustained a second cumulative trauma, applicant may file a new application consistent with Section 5412.

Cal. Code Regs., tit. 8, § 10455(a)

Only one application shall be filed for each injury. Duplicative applications are subject to summary dismissal.

The later-filed application was dismissed as duplicative because there was no evidence of a second cumulative trauma injury.

From the decision · page 3Labor Code section 3208.1 provides that an injury may be either cumulative or specific and that a cumulative industrial injury occurs whenever the repetitive mentally or physically traumatic activities of an employee's occupation cause any disability or a need for medical treatment.1 There is but one cause of action for each injury coming within the provisions of the division." (Lab. Code, § 5303.) "Only one application shall be filed for each injury. Duplicative applications are subject to summary dismissal." (Cal. Code Regs., tit. 8, § 10455(a).)

Lab. Code § 5412

The date of injury in cases of cumulative injuries is the date the employee first suffered disability and knew or should have known it was caused by employment. No cumulative injury can occur without disability.

Applicant did not establish disability in 2017, so no second cumulative trauma injury occurred.

From the decision · page 3Section 5412 provides that "[t]he 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. (Lab. Code, § 5412.) As used in Section 5412, "disability" means either compensable temporary disability or permanent disability. Medical

Applicant's testimony was the only evidence submitted at trial regarding disability in 2017, and she did not testify to missing work for medical reasons, seeking medical treatment, or having modified duties in 2017.

From the decision · page 5At the January 13, 2020 hearing regarding whether applicant's attorney filed duplicative applications, applicant's burden was to show that it is possible that she sustained two cumulative trauma injuries and that she did not file two applications for the same injury in violation of WCAB Rule 10455. As discussed above, to recover for a 2017 injury and a 2018 injury, applicant must show, among other things, that she sustained compensable disability in 2017. In this case, the only evidence applicant's attorney offered on this issue was applicant's testimony. Applicant did not testify that she missed work for medical reasons, sought medical treatment, or had modified duties in 2017. Absent evidence of disability in 2017, pursuant to Section 5412, applicant sustained one injurynot two. Accordingly, we will dismiss the second cumulative trauma application pursuant to WCAB Rule 10455. We will dismiss the application without prejudice. If additional evidence shows that applicant sustained a second cumulative trauma, applicant may file a new application consistent with Section 5412.