Jeanette Chamorro filed two applications for injury she claimed to have sustained while working for Saputo Cheese U.S.A.. One was a specific injury on October 10, 2010 (ADJ10793276) to her upper extremities and multiple other body parts as a result of the “repetitive nature of her job duties.” The second one was for a cumulative injury through March 1, 2017 to the same body parts (ADJ10870183).
In case The WCJ found that applicant sustained an injury in case ADJ10793276 from October 10, 2009 through October 10, 2010 to her arms, hand, fingers, upper extremities, and thumbs. And that applicant sustained an injury in case ADJ10870183 from August 31, 2016 through August 31, 2017 to her lumbar spine, right shoulder, bilateral wrists, cervical spine, and hands .
The WCJ found that her award of 41% permanent disability was caused by the injury in ADJ10870183. And awarded temporary disability indemnity as a result of the injury in ADJ10793276 and was entitled to future medical care for both injuries.
Stonington Insurance Company filed for reconsideration contending that the WCJ erred in finding that all permanent disability resulted from the second cumulative trauma injury. Reconsideration was granted in the panel decision of Chamorro v Saputo Cheese U.S.A., ADJ10793276-ADJ10870183 (May 2022).
In this case, the threshold issue was whether there were two cumulative trauma injuries or a single injury. If there were two injuries, the issue of apportionment of permanent disability between the two dates of injury must be addressed and requires medical evidence.
The date of injury for an industrial cumulative trauma injury is defined by Section 5412, as follows: “The 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.”
As used in Labor Code Section 5412, “disability” means either compensable temporary disability or permanent disability. (Chavira v. Worker’s Comp. Appeals Bd. (1991) 235 Cal.App.3d 463 [56 Cal.Comp.Cases 631]; State Compensation Insurance Fund v. Workers’ Comp. Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998 [69 Cal.Comp.Cases 579].)
Separate cumulative trauma injuries occur where “periods of disability and/or need for medical treatment [are] interspersed within the course of the repetitive activities.- (Aetna Casualty & Surety Co. v. Workmen’s Comp. Appeals Bd. (Coltharp) (1973) 35 Cal.App.3d 329 [38 Cal.Comp.Cases 720] and Ferguson v. City of Oxnard (1970) 35 Cal.Comp.Cases 452 (Appeals Board en banc).)
There is a single cumulative trauma with one date of injury (i.e., the first period of compensable temporary disability) where periods of temporary disability were linked by a continued need for medical treatment under Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227 [58 Cal.Comp.Cases 323].)
When Western Growers (Austin) is read in conjunction with the Labor Code section 3208.1 definition of “cumulative injury,” the anti-merger provisions of Labor Code sections 3208.2 and 5303, and the holding of Aetna Casualty (Coltharp), the following principles apply:
– – (1) if, after returning to work from a period of temporary disability and a need for medical treatment, the employee’s repetitive work activities again result in injurious trauma (i.e., if the employee’s occupational activities after returning to work from a period of temporary disability cause or contribute to a new period of temporary disability, to a new or an increased level of permanent disability, or to a new or increased need for medical treatment), then there are two separate and distinct cumulative injuries that cannot be merged into a single injury (Lab. Code §§ 3208.1, 3208.2, 5303; Aetna Casualty (Coltharp), supra, 35 Cal.App.3d at p. 342); and
– – (2) if, however, the employee’s occupational activities after returning to work from a period of industrial temporary disability are not injurious (i.e., if any new period of temporary disability, new or increased level of permanent disability, or new or increased need for medical treatment result solely from an exacerbation of the original injury), then there is only a single cumulative injury and no impermissible merger occurs. (Lab. Code, §§ 3208.1, 3208.2, 5303; Western Growers (Austin), supra, 16 Cal.App.4th at p. 235.)
If applicant sustained two injuries, it is settled law that when two industrial injuries combine to cause permanent disability, the permanent disability caused by each must be separately awarded, unless the evaluating physician cannot parcel out, with reasonable medical probability, the approximate percentages to which each distinct industrial injury causally contributed to the employee’s overall permanent disability. (Benson v. The Permanente Medical Group (2007) 72 Cal.Comp.Cases 1620 (Appeals Board en banc), affirmed sub nom. Benson v. Workers’ Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535 [74 Cal.Comp.Cases 113].)
The panel concluded the review of the law on apportionment and ruled that “Given that the record requires further development on the number and nature of injuries and apportionment between injuries pursuant to Benson, supra, we must return this matter to the trial level.”