What the panel ordered
Petitions for reconsideration granted; Findings and Order of October 5, 2023 rescinded; matter returned to WCJ for further proceedings and new decision.
Petitions for reconsideration filed by State Compensation Insurance Fund and Great American Alliance Insurance Company seeking review of the WCJ Findings and Order issued on October 5, 2023; WCJ recommended denial of petitions; WCAB grants reconsideration, rescinds the Findings and Order, and returns matter to WCJ for further proceedings.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The WCJ did not adequately establish the Section 5412 date of injury or the Section 5500.5 date of injury, so the matter is remanded for further development and determination of these dates and liability.
From the decision · page 4Pursuant to Section 5412: 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. (Lab. Code, § 5412.) As noted above, at the trial the parties stipulated that applicant's period of employment for Atkore International was during the period from November 2013, through January 2019. In order to determine the section 5412 date of injury, the date that applicant first suffered disability and knew that the disability was caused by his employment, must be established. Our review of the record indicates these dates have not been adequately established.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The Section 5412 date of injury and the Section 5500.5 date of injury have not been adequately established in the record.
Favours neutral
Without these dates, the WCJ cannot determine the parties' liability under Labor Code Sections 5412 and 5500.5.
From the decision · page 4Pursuant to Section 5412: 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. (Lab. Code, § 5412.) As noted above, at the trial the parties stipulated that applicant's period of employment for Atkore International was during the period from November 2013, through January 2019. In order to determine the section 5412 date of injury, the date that applicant first suffered disability and knew that the disability was caused by his employment, must be established. Our review of the record indicates these dates have not been adequately established.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code Section 5702
The parties to a controversy may stipulate the facts relative thereto in writing and file such stipulation with the appeals board. The appeals board may thereupon make its findings and award based upon such stipulation, or may set the matter down for hearing and take further testimony or make the further investigation necessary to enable it to determine the matter in controversy.
Stipulations are binding on the parties but not on non-parties; SCIF and American Alliance are not bound by stipulations between applicant and American Home Assurance Company.
From the decision · page 3The parties to a controversy may stipulate the facts relative thereto in writing and file such stipulation with the appeals board. The appeals board may thereupon make its findings and award based upon such stipulation, or may set the matter down for hearing and take further testimony or make the further investigation necessary to enable it to determine the matter in controversy. (Lab. Code, § 5702)
Labor Code Section 5500.5
Liability for occupational disease or cumulative injury claims filed or asserted on or after January 1, 1981, 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.
The liability period is limited to one year preceding the Section 5412 date of injury or last exposure date, whichever is earlier.
From the decision · page 3[L]iability for occupational disease or cumulative injury claims filed or asserted on or after January 1, 1981, 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. (Lab. Code, § 5500.5.)
Labor Code Section 5412
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.
The Section 5412 date of injury is the date the employee first suffered disability and knew or should have known it was work-related; this date must be established to determine liability.
From the decision · page 4Pursuant to Section 5412: 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. (Lab. Code, § 5412.) As noted above, at the trial the parties stipulated that applicant's period of employment for Atkore International was during the period from November 2013, through January 2019. In order to determine the section 5412 date of injury, the date that applicant first suffered disability and knew that the disability was caused by his employment, must be established. Our review of the record indicates these dates have not been adequately established.
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