Authorities as the decision cited them, with how this panel applied each one.
Labor Code sections 3208.11 and 5412
Labor Code section 3208.11 defines cumulative industrial injury and Labor Code section 5412 defines the date of injury for cumulative injuries.
The Board applied these statutes to determine the date of injury and the nature of cumulative trauma injuries.
From the decision · page 3ANALYSIS
Labor Code section 3208.11 provides that a cumulative industrial injury occurs whenever
the repetitive physically traumatic activities of an employee's occupation cause any disability or a
need for medical treatment. 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 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].)
Before addressing the current dispute, we must first address the August 19, 2019 Findings
and Order wherein the WCJ found, in ADJ10870183, that applicant sustained an injury from
Labor Code section 5500.5
Labor Code section 5500.5 limits liability for cumulative injury claims to employers during a one-year period preceding the date of injury or last exposure.
The Board applied this statute to explain the limitation of employer liability for cumulative injuries.
Benson v. The Permanente Medical Group (2007) 72 Cal.Comp.Cases 1620
The Board cited this case to explain the need for apportionment of permanent disability between two injuries.
From the decision · page 6If 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].) Prior to Benson, separate
industrial injuries involving a common body part were routinely combined into a single award of
permanent disability when they became permanent and stationary on the same date, in accordance
with the holding of the Supreme Court in Wilkinson v. Workers' Comp. Appeals Bd. (1977) 19
Cal.3d 491 [42 Cal.Comp.Cases 406 (Wilkinson).