ADJ6649353 — California WCAB decision

What the panel ordered

Findings, Award and Order dated January 6, 2020 affirmed

Petition for Reconsideration filed by Zurich, decision after reconsideration by WCAB panel affirming Arbitrator's Findings, Award and Order dated January 6, 2020

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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.

AOE/COEDefendant prevailedcervical spine

The Board affirmed the Arbitrator's finding that the cumulative trauma injury periods overlapped and were caused by the same essential work duties, thus liability falls on the insurer covering the last year of injurious exposure per Labor Code Section 5500.5.

From the decision · page 3The difficulty with Zurich's position (as also noted in the Findings, Award, and Order) is that Dr. Newman's 5-19-13 report stated that the 2-17-09 injury caused overlap with the 12-01-06 injury, and that the 2-17-09 injury "aggravated" the 12-01-06 injury.[3] The variance in job duties, noted by Zurich for the second CT period, ignores the fact that Applicant testified that his job duties remained essentially the same during his entire period of employment. (See Exhibit HH, the applicant Depo, 49:15, 50:14 and 52:24) Hence, the first cumulative trauma injury was caused by the same essential work duties that Dr. Newman believes caused the second cumulative trauma injury. (See Exhibit GG, Newman Depo, 9:25, 13:4 and 14:25)

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Overlap and aggravation of injury between two cumulative trauma periods

Favours Defendant prevailed

Supported the finding that the second injury was caused by the same essential work duties as the first, affecting liability allocation.

From the decision · page 3The difficulty with Zurich's position (as also noted in the Findings, Award, and Order) is that Dr. Newman's 5-19-13 report stated that the 2-17-09 injury caused overlap with the 12-01-06 injury, and that the 2-17-09 injury "aggravated" the 12-01-06 injury.[3] The variance in job duties, noted by Zurich for the second CT period, ignores the fact that Applicant testified that his job duties remained essentially the same during his entire period of employment. (See Exhibit HH, the applicant Depo, 49:15, 50:14 and 52:24) Hence, the first cumulative trauma injury was caused by the same essential work duties that Dr. Newman believes caused the second cumulative trauma injury. (See Exhibit GG, Newman Depo, 9:25, 13:4 and 14:25)

Injured employee's testimony that job duties remained essentially the same during entire employment period

Favours Defendant prevailed

Supported rejection of Zurich's claim that the second cumulative trauma started December 1, 2008 due to different job duties.

From the decision · page 3The difficulty with Zurich's position (as also noted in the Findings, Award, and Order) is that Dr. Newman's 5-19-13 report stated that the 2-17-09 injury caused overlap with the 12-01-06 injury, and that the 2-17-09 injury "aggravated" the 12-01-06 injury.[3] The variance in job duties, noted by Zurich for the second CT period, ignores the fact that Applicant testified that his job duties remained essentially the same during his entire period of employment. (See Exhibit HH, the applicant Depo, 49:15, 50:14 and 52:24) Hence, the first cumulative trauma injury was caused by the same essential work duties that Dr. Newman believes caused the second cumulative trauma injury. (See Exhibit GG, Newman Depo, 9:25, 13:4 and 14:25)

No significant change in work duties identified to support separate cumulative trauma starting December 1, 2008

Favours Defendant prevailed

Supported rejection of a separate cumulative trauma injury starting December 1, 2008.

From the decision · page 4We are not persuaded. The injured employee's 2019 deposition shows that his condition actually worsened around March 2008, even though he did not get much treatment that year. Further, and as noted before, the Arbitrator points out that the injured employee's physical work activities did not change significantly from 2007 through February 17, 2009, even though he had a new assignment working with an engineer beginning in November 2008. It also appears that there was no specific change in work requirements that can be identified as causing a separate cumulative trauma beginning December 1, 2008. (See Exhibit II.) Without something more than a nominal change in the injured employee's work assignment, such as a material change in the physical demands of his essential work functions, the preponderance of evidence does not support the existence of a separate cumulative trauma beginning December 1, 2008.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code Section 5500.5

Liability for cumulative trauma injury falls on the employer/insurer covering the employee during the one year preceding the date of injury or last date of injurious exposure, whichever occurs first.

Applied to determine insurer liability for cumulative trauma injury coverage period.

From the decision · page 3Therefore, the present finding and award is based on (1) the overlap and aggravation of injury between the two CT period injuries, coupled with (2) the essential "sameness" of repetitive job duties causing both CT injuries that, in turn, renders (3) the injurious exposure that caused the second CT injury to be the same [type of] injurious exposure that caused the first CT injury. Per Labor Code Section 5500.5, liability for the cumulative trauma injury falls on the employer/insurer who employed/covered the applicant during the one year preceding the date of injury, or the last date of injurious exposure, whichever occurs first.

Labor Code Section 3208.1

A cumulative industrial injury occurs whenever repetitive, physically traumatic activities cause disability or need for medical treatment.

Applied to reject Dr. Newman's opinion as inconsistent with statutory definition of cumulative trauma.

From the decision · page 4Finally, we note that Dr. Newman's apparent understanding of cumulative trauma, on these facts, is inconsistent with the statutory definition of cumulative trauma under Labor Code section 3208.1. The statute provides that a cumulative industrial injury occurs whenever the repetitive, physically traumatic activities of the employee's occupation cause any disability and/or need for medical treatment. Dr. Newman posited the existence of a brief, second cumulative trauma starting at the end of 2008 based upon the injured employee's narrative of a marked increase in symptoms, as opposed to the nature of the work he performed. As previously noted, however, there is no persuasive evidence that the injured employee's work duties changed significantly late in 2008. Dr. Newman evidently did not recognize that during a period of cumulative trauma, a time of injurious exposure may pre-date and give rise to the onset of severe symptoms. A medical opinion that is based upon an incorrect legal theory is properly rejected as insubstantial evidence. (Hegglin v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].)

Hegglin v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 162

A medical opinion based on an incorrect legal theory is properly rejected as insubstantial evidence.

Applied to reject Dr. Newman's opinion as insubstantial evidence due to incorrect legal theory.

From the decision · page 4Finally, we note that Dr. Newman's apparent understanding of cumulative trauma, on these facts, is inconsistent with the statutory definition of cumulative trauma under Labor Code section 3208.1. The statute provides that a cumulative industrial injury occurs whenever the repetitive, physically traumatic activities of the employee's occupation cause any disability and/or need for medical treatment. Dr. Newman posited the existence of a brief, second cumulative trauma starting at the end of 2008 based upon the injured employee's narrative of a marked increase in symptoms, as opposed to the nature of the work he performed. As previously noted, however, there is no persuasive evidence that the injured employee's work duties changed significantly late in 2008. Dr. Newman evidently did not recognize that during a period of cumulative trauma, a time of injurious exposure may pre-date and give rise to the onset of severe symptoms. A medical opinion that is based upon an incorrect legal theory is properly rejected as insubstantial evidence. (Hegglin v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].)

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Defendant prevailed

Injured employee's testimony that job duties remained essentially the same during entire employment period

From the decision · page 3The difficulty with Zurich's position (as also noted in the Findings, Award, and Order) is that Dr. Newman's 5-19-13 report stated that the 2-17-09 injury caused overlap with the 12-01-06 injury, and that the 2-17-09 injury "aggravated" the 12-01-06 injury.[3] The variance in job duties, noted by Zurich for the second CT period, ignores the fact that Applicant testified that his job duties remained essentially the same during his entire period of employment. (See Exhibit HH, the applicant Depo, 49:15, 50:14 and 52:24) Hence, the first cumulative trauma injury was caused by the same essential work duties that Dr. Newman believes caused the second cumulative trauma injury. (See Exhibit GG, Newman Depo, 9:25, 13:4 and 14:25)

Testimony and credibilityfavours Defendant prevailed

Injured employee's deposition showing condition worsened around March 2008 despite little treatment

From the decision · page 4We are not persuaded. The injured employee's 2019 deposition shows that his condition actually worsened around March 2008, even though he did not get much treatment that year. Further, and as noted before, the Arbitrator points out that the injured employee's physical work activities did not change significantly from 2007 through February 17, 2009, even though he had a new assignment working with an engineer beginning in November 2008. It also appears that there was no specific change in work requirements that can be identified as causing a separate cumulative trauma beginning December 1, 2008. (See Exhibit II.) Without something more than a nominal change in the injured employee's work assignment, such as a material change in the physical demands of his essential work functions, the preponderance of evidence does not support the existence of a separate cumulative trauma beginning December 1, 2008.

work activityfavours Defendant prevailed

No significant change in work duties identified to support separate cumulative trauma starting December 1, 2008

From the decision · page 4We are not persuaded. The injured employee's 2019 deposition shows that his condition actually worsened around March 2008, even though he did not get much treatment that year. Further, and as noted before, the Arbitrator points out that the injured employee's physical work activities did not change significantly from 2007 through February 17, 2009, even though he had a new assignment working with an engineer beginning in November 2008. It also appears that there was no specific change in work requirements that can be identified as causing a separate cumulative trauma beginning December 1, 2008. (See Exhibit II.) Without something more than a nominal change in the injured employee's work assignment, such as a material change in the physical demands of his essential work functions, the preponderance of evidence does not support the existence of a separate cumulative trauma beginning December 1, 2008.

ADJ6649353 · April 26, 2024

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