ADJ9198656 · July 7, 2025

The WCAB found a clerical error in the Findings and Award listing Cottage Health as the liable party instead of Sansum Santa Barbara Medical insured by Zurich, and amended the award accordingly.

From the decision · page 3Cottage Health avers the PWCJ inadvertently listed it as the employer and thus the liable party rather than Sansum San Barbara Medical, insured by Zurich American Insurance Company. The PWCJ determined the period of liability under section 5500.5 to be January 6, 2006 to January 6, 2007. (Finding of Fact No. 3.) During this interval, applicant was employed solely by Sansum Santa Barbara Medical. (Minutes of Hearing and Summary of Evidence, dated June 19, 2024, at p. 6:18.) We therefore concur with the PWCJ's recommendation as set forth in the Report that we amend the Award for evident clerical error. Consequently, we will grant Cottage Health's petition and amend the F&A to reflect that Sansum Santa Barbara Medical, insured by Zurich American Insurance Company is liable for the claimed injury.

The WCAB upheld the prior final decision that the applicant sustained a single cumulative injury from 2001 to 2011, rejecting Zurich's contention of multiple injuries.

From the decision · page 3For its part, Zurich contends the evidentiary record supports the existence of two or more separate injuries. However, the issue of the nature and number of injuries was specifically raised by the parties and decided in our January 6, 2025 Opinion and Decision After Reconsideration (ODAR). Therein, we discussed the relevant legal and evidentiary standards for determining the nature and number of injuries sustained by applicant and agreed with the PWCJ that applicant sustained a single cumulative injury from March 19, 2001 to January 3, 2011. (ODAR, at pp. 5- 8.)

The statute of limitations defense was not timely raised and was waived; the claim is not barred as the applicant continued to receive authorized medical treatment and indemnity through 2013.

From the decision · page 4To the extent that Zurich also now raises the running of the statute of limitations of section 5405 for the first time, we agree with the PWCJ's observation that the affirmative defense is not timely raised. (Lab. Code, § 5409 ["The running of the period of limitations prescribed by this chapter is an affirmative defense and operates to bar the remedy and not to extinguish the right of the employee. Such defense may be waived. Failure to present such defense prior to the submission of the cause for decision is a sufficient waiver."]; see also Memorial Hospital Assoc. v. Workers' Comp. Appeals Bd. (Caldwell) (1995) 60 Cal.Comp.Cases 779 (writ denied) [statute of limitations waived by failing to raise the defense at mandatory settlement conference]; Griffith v. Workers' Comp. Appeals Bd. (1989) 209 Cal.App.3d 1260, 1265 [54 Cal.Comp.Cases 145, 148]) [issue not raised at trial level is waived].) Even were this not the case, we observe that applicant continued to receive authorized medical treatment and indemnity through 2013 when she filed the instant applications. (See, e.g., Ex. 11, report of AME Chester Hasday, M.D., dated November 11, 2019, at pp. 4, 57.) As such, we find Zurich's arguments regarding the applicability of the statute of limitations to be unpersuasive. (See Lab. Code, § 5405(b)-(c).)

The period of liability under Labor Code section 5500.5 was January 6, 2006 to January 6, 2007, during which applicant was employed solely by Sansum Santa Barbara Medical.

Favours Defendant prevailed

This established the correct liable employer, leading to amendment of the award to reflect Zurich as the liable party.

From the decision · page 3Cottage Health avers the PWCJ inadvertently listed it as the employer and thus the liable party rather than Sansum San Barbara Medical, insured by Zurich American Insurance Company. The PWCJ determined the period of liability under section 5500.5 to be January 6, 2006 to January 6, 2007. (Finding of Fact No. 3.) During this interval, applicant was employed solely by Sansum Santa Barbara Medical. (Minutes of Hearing and Summary of Evidence, dated June 19, 2024, at p. 6:18.) We therefore concur with the PWCJ's recommendation as set forth in the Report that we amend the Award for evident clerical error. Consequently, we will grant Cottage Health's petition and amend the F&A to reflect that Sansum Santa Barbara Medical, insured by Zurich American Insurance Company is liable for the claimed injury.

Applicant sustained a single cumulative injury from March 19, 2001 to January 3, 2011, as previously decided and not timely challenged.

Favours Applicant prevailed

This upheld the finding of one continuous trauma injury, rejecting Zurich's contention of multiple injuries.

From the decision · page 3For its part, Zurich contends the evidentiary record supports the existence of two or more separate injuries. However, the issue of the nature and number of injuries was specifically raised by the parties and decided in our January 6, 2025 Opinion and Decision After Reconsideration (ODAR). Therein, we discussed the relevant legal and evidentiary standards for determining the nature and number of injuries sustained by applicant and agreed with the PWCJ that applicant sustained a single cumulative injury from March 19, 2001 to January 3, 2011. (ODAR, at pp. 5- 8.)

Zurich did not timely raise the statute of limitations defense, which was waived; applicant continued to receive authorized medical treatment and indemnity through 2013.

Favours Applicant prevailed

This led to denial of Zurich's petition based on the statute of limitations defense.

From the decision · page 4To the extent that Zurich also now raises the running of the statute of limitations of section 5405 for the first time, we agree with the PWCJ's observation that the affirmative defense is not timely raised. (Lab. Code, § 5409 ["The running of the period of limitations prescribed by this chapter is an affirmative defense and operates to bar the remedy and not to extinguish the right of the employee. Such defense may be waived. Failure to present such defense prior to the submission of the cause for decision is a sufficient waiver."]; see also Memorial Hospital Assoc. v. Workers' Comp. Appeals Bd. (Caldwell) (1995) 60 Cal.Comp.Cases 779 (writ denied) [statute of limitations waived by failing to raise the defense at mandatory settlement conference]; Griffith v. Workers' Comp. Appeals Bd. (1989) 209 Cal.App.3d 1260, 1265 [54 Cal.Comp.Cases 145, 148]) [issue not raised at trial level is waived].) Even were this not the case, we observe that applicant continued to receive authorized medical treatment and indemnity through 2013 when she filed the instant applications. (See, e.g., Ex. 11, report of AME Chester Hasday, M.D., dated November 11, 2019, at pp. 4, 57.) As such, we find Zurich's arguments regarding the applicability of the statute of limitations to be unpersuasive. (See Lab. Code, § 5405(b)-(c).)

Provided medical reports and deposition supporting the date of injury and disability findings.

Dr. Hasday's reports showed applicant was temporarily totally disabled and underwent surgery, supporting the date of injury and rebutting the statute of limitations defense.

From the decision · page 4To the extent that Zurich also now raises the running of the statute of limitations of section 5405 for the first time, we agree with the PWCJ's observation that the affirmative defense is not timely raised. (Lab. Code, § 5409 ["The running of the period of limitations prescribed by this chapter is an affirmative defense and operates to bar the remedy and not to extinguish the right of the employee. Such defense may be waived. Failure to present such defense prior to the submission of the cause for decision is a sufficient waiver."]; see also Memorial Hospital Assoc. v. Workers' Comp. Appeals Bd. (Caldwell) (1995) 60 Cal.Comp.Cases 779 (writ denied) [statute of limitations waived by failing to raise the defense at mandatory settlement conference]; Griffith v. Workers' Comp. Appeals Bd. (1989) 209 Cal.App.3d 1260, 1265 [54 Cal.Comp.Cases 145, 148]) [issue not raised at trial level is waived].) Even were this not the case, we observe that applicant continued to receive authorized medical treatment and indemnity through 2013 when she filed the instant applications. (See, e.g., Ex. 11, report of AME Chester Hasday, M.D., dated November 11, 2019, at pp. 4, 57.) As such, we find Zurich's arguments regarding the applicability of the statute of limitations to be unpersuasive. (See Lab. Code, § 5405(b)-(c).)

Opined applicant suffers from complex regional pain syndrome of the right upper limb.

Supported the finding of a single cumulative injury including complex regional pain syndrome.

From the decision · page 8On January 20, 2017, Robert Hullander, M.D., in the capacity of a secondary treating physician, opined applicant suffers from a complex regional pain syndrome of the right upper limb.

Performed surgeries and found applicant temporarily totally disabled and later permanent and stationary with permanent disability for the thumb.

Her treatment and findings supported the continuous trauma injury and disability determinations.

From the decision · page 7On July 21, 2003, applicant received treatment from Dr. Ruth for the condition of carpal tunnel syndrome. Applicant was found to be temporarily partially disabled (TPD) for the right elbow.

Labor Code section 5412

Date of injury is the date the employee first suffered disability and knew or should have known it was caused by employment (Labor Code section 5412).

Applied to determine the date of injury as January 6, 2007.

From the decision · page 11Therefore, pursuant to Labor Code § 5412, the date of injury is January 6, 2007.

Labor Code section 5500.5

Liability for occupational disease or cumulative injury claims is limited to employers during the four years immediately preceding the date of injury or last exposure (Labor Code section 5500.5).

Applied to determine the liable employer during the period of liability from January 6, 2006 to January 6, 2007.

From the decision · page 3Cottage Health avers the PWCJ inadvertently listed it as the employer and thus the liable party rather than Sansum San Barbara Medical, insured by Zurich American Insurance Company. The PWCJ determined the period of liability under section 5500.5 to be January 6, 2006 to January 6, 2007. (Finding of Fact No. 3.) During this interval, applicant was employed solely by Sansum Santa Barbara Medical. (Minutes of Hearing and Summary of Evidence, dated June 19, 2024, at p. 6:18.) We therefore concur with the PWCJ's recommendation as set forth in the Report that we amend the Award for evident clerical error. Consequently, we will grant Cottage Health's petition and amend the F&A to reflect that Sansum Santa Barbara Medical, insured by Zurich American Insurance Company is liable for the claimed injury.

Labor Code section 5409

Statute of limitations is an affirmative defense that must be timely raised or it is waived (Labor Code section 5409).

Applied to reject Zurich's statute of limitations defense as untimely raised and waived.

From the decision · page 4To the extent that Zurich also now raises the running of the statute of limitations of section 5405 for the first time, we agree with the PWCJ's observation that the affirmative defense is not timely raised. (Lab. Code, § 5409 ["The running of the period of limitations prescribed by this chapter is an affirmative defense and operates to bar the remedy and not to extinguish the right of the employee. Such defense may be waived. Failure to present such defense prior to the submission of the cause for decision is a sufficient waiver."]; see also Memorial Hospital Assoc. v. Workers' Comp. Appeals Bd. (Caldwell) (1995) 60 Cal.Comp.Cases 779 (writ denied) [statute of limitations waived by failing to raise the defense at mandatory settlement conference]; Griffith v. Workers' Comp. Appeals Bd. (1989) 209 Cal.App.3d 1260, 1265 [54 Cal.Comp.Cases 145, 148]) [issue not raised at trial level is waived].) Even were this not the case, we observe that applicant continued to receive authorized medical treatment and indemnity through 2013 when she filed the instant applications. (See, e.g., Ex. 11, report of AME Chester Hasday, M.D., dated November 11, 2019, at pp. 4, 57.) As such, we find Zurich's arguments regarding the applicability of the statute of limitations to be unpersuasive. (See Lab. Code, § 5405(b)-(c).)

Applicant's medical records and testimony regarding temporary total disability and surgeries

From the decision · page 4To the extent that Zurich also now raises the running of the statute of limitations of section 5405 for the first time, we agree with the PWCJ's observation that the affirmative defense is not timely raised. (Lab. Code, § 5409 ["The running of the period of limitations prescribed by this chapter is an affirmative defense and operates to bar the remedy and not to extinguish the right of the employee. Such defense may be waived. Failure to present such defense prior to the submission of the cause for decision is a sufficient waiver."]; see also Memorial Hospital Assoc. v. Workers' Comp. Appeals Bd. (Caldwell) (1995) 60 Cal.Comp.Cases 779 (writ denied) [statute of limitations waived by failing to raise the defense at mandatory settlement conference]; Griffith v. Workers' Comp. Appeals Bd. (1989) 209 Cal.App.3d 1260, 1265 [54 Cal.Comp.Cases 145, 148]) [issue not raised at trial level is waived].) Even were this not the case, we observe that applicant continued to receive authorized medical treatment and indemnity through 2013 when she filed the instant applications. (See, e.g., Ex. 11, report of AME Chester Hasday, M.D., dated November 11, 2019, at pp. 4, 57.) As such, we find Zurich's arguments regarding the applicability of the statute of limitations to be unpersuasive. (See Lab. Code, § 5405(b)-(c).)