What the panel ordered
The WCAB granted the Petition for Reconsideration, rescinded the WCJ's Order Denying Joinder, and ordered Berkshire Hathaway Homestate Insurance Company joined as a party defendant.
Defendant Everest National Insurance sought removal of the WCJ's Order Denying Joinder issued on April 2, 2021, which denied defendant's Petition for Joinder to add Berkshire Hathaway Homestate Insurance as a party defendant. The WCAB granted reconsideration, rescinded the Order, and issued a new decision granting the Petition for Joinder.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The parties stipulated that the injury was cumulative trauma, allowing amendment of the claim and joinder of Berkshire Hathaway Homestate Insurance as a party defendant. The WCJ erred in denying the joinder.
From the decision · page 1Defendant Everest National Insurance seeks removal of the Order Denying Joinder (Order) issued by the workers' compensation administrative law judge (WCJ) on April 2, 2021. By the Order, the WCJ denied defendant's Petition for Joinder to join Berkshire Hathaway Homestate Insurance (Berkshire) as a party defendant. The Petition was denied because applicant pled the claim as a specific injury, although the parties stipulated in the settlement agreement that the claim was a cumulative trauma injury.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The parties stipulated in the settlement agreement that the injury was cumulative trauma, not a specific injury.
Favours Defendant prevailed
This stipulation allowed the claim to be amended and justified joinder of Berkshire Hathaway Homestate Insurance as a party defendant.
From the decision · page 2ALTHOUGH THIS INJURY WAS ALLEGED AS A SPECIFIC INJURY, THE QME, DR. CHAR, HAS OPINED THIS IS A CUMULATIVE INJURY. THE PARTIES STIPULATE THAT THIS IS A CUMULATIVE INJURY AND THERE WAS NO SPECIFIC INJURY. THE DEFENDANT RESERVES THE RIGHT TO SEEK CONTRIBUTION AGAINST ANY OTHER EMPLOYERS OR INSURERS DURING THE EXPOSURE PERIOD.
David Char, M.D., the QME, opined that the residual permanent disability was more likely due to cumulative industrial exposure rather than a single specific incident.
Favours Defendant prevailed
Supports the parties' stipulation and the amendment of the claim to cumulative trauma.
From the decision · page 2David Char, M.D. evaluated applicant as the qualified medical evaluator (QME). In his September 10, 2019 report, he stated as follows in relevant part:
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
The residual permanent disability is more likely due to cumulative industrial exposure rather than a single specific incident, with no apportionment for other causes.
Supports the parties' stipulation that the injury was cumulative trauma, not a specific injury.
From the decision · page 2David Char, M.D. evaluated applicant as the qualified medical evaluator (QME). In his September 10, 2019 report, he stated as follows in relevant part:
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, 5702
Parties may stipulate facts in controversy and the Appeals Board may make findings based on such stipulations.
The parties stipulated the injury was cumulative trauma, allowing amendment of the claim and joinder of Berkshire Hathaway Homestate Insurance.
Lab. Code, 5500.5
Liability for cumulative injury claims is limited to employers during the relevant exposure period, and joinder of additional parties is permitted.
Allows joinder of Berkshire Hathaway Homestate Insurance as a party defendant for contribution during the cumulative trauma period.
From the decision · page 5Liability for a cumulative injury is determined under section 5500.5, which states in part:
What proof carried it
The evidence the panel weighed, by kind.
Parties stipulated in the settlement agreement that the injury was cumulative trauma, not a specific injury.
From the decision · page 2ALTHOUGH THIS INJURY WAS ALLEGED AS A SPECIFIC INJURY, THE QME, DR. CHAR, HAS OPINED THIS IS A CUMULATIVE INJURY. THE PARTIES STIPULATE THAT THIS IS A CUMULATIVE INJURY AND THERE WAS NO SPECIFIC INJURY. THE DEFENDANT RESERVES THE RIGHT TO SEEK CONTRIBUTION AGAINST ANY OTHER EMPLOYERS OR INSURERS DURING THE EXPOSURE PERIOD.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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