Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 3208.1
LC section 3208.1 defines cumulative trauma as repetitive mentally or physically traumatic activities over time causing disability or need for treatment.
Used to determine the existence of cumulative trauma periods.
From the decision · page 6III.
DISCUSSION
First, petitioner's reference to LC section 5500.5 is misplaced, as that section defines which entity
has liability within a single cumulative trauma period, but only once the limits of the cumulative
trauma period have been established. That is not the question here. There is no dispute that the
applicant's activities as a heavy equipment operator during the periods in question were injurious.
The only dispute to resolve is whether there were two cumulative trauma periods, separated by 9
months or so of inactive unemployment, during which the applicant was consciously trying to rest
and recover, received no medical treatment, and during which he testified he would not have
accepted an offer of employment even had employment come his way.
Per LC section 3208.1(b), a cumulative trauma is defined as "...repetitive mentally or physically
traumatic activities extending over a period of time, the combined effect of which causes either
disability or need for treatment."
In Mr.
Labor Code section 5500.5
LC section 5500.5 defines liability within a single cumulative trauma period once the limits of the period are established.
Clarifies liability but not the limits of cumulative trauma periods.
From the decision · page 6III.
DISCUSSION
First, petitioner's reference to LC section 5500.5 is misplaced, as that section defines which entity
has liability within a single cumulative trauma period, but only once the limits of the cumulative
trauma period have been established. That is not the question here. There is no dispute that the
applicant's activities as a heavy equipment operator during the periods in question were injurious.
The only dispute to resolve is whether there were two cumulative trauma periods, separated by 9
months or so of inactive unemployment, during which the applicant was consciously trying to rest
and recover, received no medical treatment, and during which he testified he would not have
accepted an offer of employment even had employment come his way.
Per LC section 3208.1(b), a cumulative trauma is defined as "...repetitive mentally or physically
traumatic activities extending over a period of time, the combined effect of which causes either
disability or need for treatment."
In Mr.
Aetna Cas. & Surety Co. v. WCAB (Coltharp) (1973) 38 CCC 720; Western Growers Ins. Co. v. WCAB (Austin) (1993) 58 CCC 323
Tests from Aetna Cas. & Surety Co. v. WCAB (Coltharp) and Western Growers Ins. Co. v. WCAB (Austin) help determine the number of cumulative trauma injuries based on medical treatment continuity and disability.
Applied to assess whether the 9-month break constituted separate cumulative trauma injuries.
From the decision · page 7Shalom does no better, failing in his multiple reports and deposition to express an
understanding of the 9 month break between the Dana/South Stream job and the Highway 50 job.
As he demonstrated no knowledge of this period off work, he was not able to offer any analysis of
the significance of the nine month break, or lack thereof. Without a correct history, and in the
absence of any analysis of the central issue presented, his opinions likewise on this issue cannot
be substantial evidence.
Looking then to the evidence we do have, it is undisputed that there was injurious exposure at the
three jobs. It is likewise undisputed that the applicant took about 9 months off between them, where
he purposely did little physical activity in an effort to heal, and offered unrebutted testimony under
oath that he would not have accepted employment driving heavy machinery had it been offered.
He could recall no medical treatment during those 9 months. It wasn't until he was running out of
money that he took the Highway 50 job, and as he feared, this work also resulted in further injury
and permanent worsening of his symptoms.
The cases of Aetna Cas. & Surety Co. v. WCAB (Coltharp) (1973) 38 CCC 720, and Western
Growers Ins. Co. v. WCAB (Austin) (1993) 58 CCC 323 provide certain tests to determine the
question of cumulative trauma.