A new panel decision of Perez v Comprehensive Blood and Cancer Center -(ADJ 11965696)- the WCAB was required to discuss an analysis of the correct “date of injury” in a continuous trauma case, as well as the correct period for “imposition of liability” upon the industrial carriers. In this case the carrier (unsuccessfully) attempted to raise several theories that would shift liability to a period either before or after the last date of employment ending July 3, 2012.

Mericela Perez was thirty-five years old and employed as a Radiology Technician at Bakersfield, California by Comprehensive Blood and Cancer Center, during the period ending on July 3, 2012. It was found that she sustained injury in the form of an intracranial meningioma. The Opinion on Decision indicates that the WCJ believed the date of injury to be to be January 16, 2020, the date of the first report from David Baum, M.D., the internal medicine panel qualified medical examiner (PQME).

The panel pointed out that the date of injury for cumulative trauma claims “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,1 § 5412.)

In turn, liability for a cumulative injury is determined under section 5500.5, which states that liability “shall be limited to those employers who employed the employee during a period . . . [of one 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.

Although the period of liability for cumulative trauma claims is limited to the last year of injurious exposure, the actual date of injury under section 5412 may be different than applicant’s last date of work.

“Pursuant to section 5412, the date of a cumulative injury is the date the employee first suffers a ‘disability’ and has reason to know the disability is work related.” (Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227, 238 [58 Cal.Comp.Cases 323].) This is the date that sets the benefit rates, and timing and availability of benefits.

Disability has been defined as “an impairment of bodily functions which results in the impairment of earnings capacity.” (J.T. Thorp v. Workers’ Comp. Appeals Bd. (1984) 153 Cal.App.3d 327, 336 [49 Cal.Comp.Cases 224].)

Disability can be either temporary or permanent. (Chavira v. Workers’ Comp. Appeals Bd. (1991) 253 Cal.App.3d 463, 474 [56 Cal.Comp.Cases 631].) Whether there is temporary or permanent disability indicating the date of cumulative injury is a question of fact, which must be supported by substantial evidence. (Austin, supra, 16 Cal.App.4th at 233-235.)

Here the applicant filed an Application for Adjudication of Claim seeking benefits for industrial injury on February 22, 2019. Her date of knowledge is no later than the date of the application which was filed.

However, Dr. Baum stated that: “The carcinogenic potential of ionizing radiation is additive. The exposure at the podiatrist’s office, I believe, initiated the process which eventuated the meningioma 15 years later – hastened by 6 years of more intense exposure as an assistant radiation therapist at CBCC.”

Therefore, the last year of injurious occupational exposure ending on July 3, 2012 predates the section 5412 date of injury. “While defendant attempts to raise several alternative theories that would shift liability to a period either before or after the year ending July 3, 2012,” and the panel said that they “cites to no evidence in the record in support” of this assertion.”