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Apolinar Del Hoyo claimed to have suffered continuous trauma injury while employed by Archstone Harborview. In the Findings and Award of July 21, 2020, the workers’ compensation judge issued various findings in the three case numbers for the three cases he filed.

Relevant to the instant petition for reconsideration, the WCJ found “in ADJ10259448 only” that “the responsible insurance carrier per the requirements of Labor Code section[s] 5500.5 and 5412 is the Irvine Company, insured by Federal Insurance.

In addition, the WCJ ordered that “the parties shall confer informally to resolve the remaining issues of permanent partial disability and need for further medical treatment. Should the parties be unable to resolve this issue, the case may be returned to the WCJ for further hearings.”

Defendant Irvine Company filed a timely Petition for Reconsideration of the WCJ’s decision. Irvine contends that in ADJ10259448, the WCJ erred in failing to explain why he determined Irvine is the “responsible insurance carrier” for the cumulative trauma from June 3, 2007 through June 29, 2015, pursuant to Labor Code sections 5412 and 5500.5. Irvine further contends that the WCJ erred in failing to issue a Summary of Evidence and in failing to analyze the facts and applicable law.

Reconsideration was granted, the Findings and Award of July 21, 2020 was rescinded, and the matter was remanded in the panel decision of Del Hoyo v Archstone Harborview – ADJ8555171 (MF), ADJ10259448, ADJ11129372 (May 2023).

Preliminarily, the panel observed that “WCAB Rule 10962(b) provides, in relevant part, that the WCJ’s Report must include ‘a discussion of the support in the record for the findings of fact and the conclusions of law that serve as a basis for the decision or order as to each contention raised by the petition [for reconsideration].’ (Cal. Code Regs., tit. 8, § 10962(b), italics added.)

Here, the WCJ’s Report is not compliant with Rule 10962(b) because it copies the WCJ’s Opinion on Decision and thus is unresponsive to each contention raised by Irvine’s petition for reconsideration.”

There are other problems with the record in this matter. The Minutes of Hearing (‘MOH’) of June 25, 2020 reflect that there were no disputed issues in case numbers ADJ8555171 or ADJ11129372. Yet these two cases proceeded to trial and the WCJ issued findings in them. It appears that the inclusion of these two cases in the trial record and in the Findings and Award of July 21, 2020 needlessly complicated this matter. In further proceedings, the parties and the WCJ should limit the record to ADJ10259448 if it is the only case involving unresolved issues.”

Even considering ADJ10259448 in isolation, the record is problematic. The alleged cumulative trauma injury in ADJ10259448 was identified in the MOH as a ‘claimed’ injury. Thus, the issue of injury apparently remained in dispute in ADJ10259448. However, the WCJ did not make a final finding on injury in ADJ10259448, and it also appears the WCJ issued a non-final Order in ADJ10259448. (See Capital Builders Hardware, Inc. v. Workers’ Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658, 662 [81 Cal.Comp.Cases 1122].) In short, the Findings and Award issued by the WCJ on July 21, 2020 did not satisfy the requirements of Labor Code sections 5313 and 5815.”

Turning to the key issue of defense liability for the (alleged) cumulative trauma injury in ADJ10259448, Labor Code section 5500.5(a) provides that liability for cumulative injury claims is 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.

Section 5500.5(a) speaks to the issue of determining liability for a cumulative injury, while section 5412 speaks to the issue of the date of cumulative injury for purposes of applying the Statute of Limitations. The two issues are distinct but related, in that part of the analysis to determine liability under section 5500.5(a) requires an analysis of the date of cumulative injury under section 5412. (See County of Riverside v. Workers’ Comp. Appeals Bd. (Sylves) (2017) 10 Cal.App.5th 119 [82 Cal.Comp.Cases 301] (“Sylves”).)

Section 5412 requires a convergence of two elements: (1) the date when the employee first suffers disability; and (2) the employee’s acquisition of knowledge that such disability was caused by the employee’s present or prior employment.

In this case, the WCJ’s Report relies on the April 10, 2018 medical report of Dr. Whalen, the Panel Qualified Medical Evaluator (“PQME”) in chiropractic medicine, to support the WCJ’s conclusion that “there was one long cumulative trauma,” which “continued to occur during the two years and ten months that applicant was employed by the terminal employer, the Irvine Company.”

The panel concluded by stating that “the WCJ never squarely addressed or determined the two necessary elements of section 5412, which must be addressed to determine liability under section 5500.5(a).