The date an injured worker realizes he can file a workers’ compensation claim is completely different from the date he knew his disability was caused by a specific job, according to a recently published decision from the 4th District Court of Appeal analyzing how to determine the date of injury on a cumulative trauma claim.

John P. Kamin

In the case of Travelers Indemnity Co. v. WCAB (Zeber), the appellate court was asked to determine what the date of injury was for applicant George Zeber’s cumulative trauma claim. Zeber had played for the New York Yankees and last played in 1978.

If the date of injury was determined to be after Jan. 1, 1990, the court could order Travelers to mandatory arbitration on a coverage dispute, under LC 5275. However, LC 5275 did not take effect until that date. That meant that if Zeber’s date of injury was before Jan. 1, 1990, Travelers might not be subjected to mandatory arbitration because the date of injury preexisted the mandatory arbitration statute.

In the underlying case, the trial judge had found a date of injury ending in 2017 because that’s when the applicant first learned that he could file a claim in the state of California. The judge determined that the applicant was shielded from a statute of limitations defense and concluded that the statute of limitations was tolled until the applicant learned about his ability to file a workers’ compensation claim.

Travelers disputed the judge’s finding of a 2017 date of injury and contended that the applicant’s date of injury was Sept. 1, 1978, the date he retired from the Yankees.

Appellate level

So with that in mind, the appellate justices analyzed the statutory scheme and determined that the date of injury should be determined under Labor Code 5412. They then analyzed the decision and determined that the trial judge’s definition of date of injury was focused on when the applicant knew that he could file a workers’ compensation claim. The justices noted that under LC 5412, the date of injury is when the applicant is disabled and knows that the disability was caused by work.

“Knowledge that one can file a workers’ compensation claim is different from knowledge that a disability was caused by a present or prior employment,” the court said. “Thus, we cannot rely on the WCJ’s implied finding of a ‘date of injury’ to support the WCAB’s order.”

The court remanded for further proceedings on what the date of injury was for purposes of the mandatory arbitration statute, LC 5275(a)(1).

Our analysis

The court appears to be drawing a fine line between the date of knowledge about an injury being work-related versus the date an applicant first learned about his right to file a workers’ compensation claim.

The distinction sounds confusing, but frankly, it is useful because the 4th DCA appears to not disturb the principle that the statute of limitations will be tolled until the date an applicant first learns about his rights to file a workers’ compensation claim.

That being said, just because a statute of limitations is tolled, that doesn’t mean that the end date of cumulative trauma gets changed to the tolling date. Instead, LC 5412 controls how one determines the date of injury.

Why is that distinction important? Because it brings great clarity to what the date of injury is when codefendants are fighting about liability among one another.

These complex topics are often best explained by example, so here’s a hare of a hypothetical:

• Bugs Bunny plays for the Tea Totallers against the Gas-House Gorillas from 1990 through 1996.
• Bugs files a cumulative trauma claim and alleges it is from Sept. 30, 1995, to Sept. 30, 1996.
• Bugs goes on the injured list for a bad case of baseball bunny ears on June 1, 1994. When Bugs goes on the list, he knows that his baseball helmet caused his bunny ears injury.

There are different carriers each year:

• 1993 and 1994: Wile E. Coyote’s Wild West Insurance Co.
• 1995 and 1996: Daffy Duck Indemnity Corp.

This prompts the question: When is the date of injury for his bunny ears? Should it be when he played his last game in 1996, or should it be in 1994?

That question is going to matter to Wile E. Coyote and Daffy Duck, both of whom don’t want to get stuck with the liability for the claim. (Rabbit ears are expensive.)

Under this Looney Tunes fact pattern, Bugs’ cumulative trauma injury to his bunny ears should end on June 1, 1994. Why? Because that’s the date when he had a concurrence of knowledge (knowing that his helmet caused his bunny ears), and disability (going on the injured list, an indicator of temporary disability).

Sorry, Wile E. Coyote, but you lose again.

The fact that Bugs’ cumulative trauma date of injury ends on June 1, 1994, does not impact his ability to combat a statute of limitations defense. If Bugs didn’t know he could file a workers’ compensation claim until 1999, then the statute of limitations would be tolled until 1999, meaning he would have until a year after that to file a claim.

Conclusion

Date of injury arguments often start simple but can get complex really fast, especially when we start arguing about what the date of injury is as it pertains to a specific statute. This 4th DCA published decision does an excellent job of attempting to bring clarity to this complex topic and will likely be quoted in hearings at an arbitrator near you.

John P. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location. He is WorkCompCentral's former legal editor. This entry from Bradford & Barthel's blog appears with permission.