RE: GEORGE THE BARTENDER’S DISPATCHES FROM ONLINE HAPPY HOUR – DETERMINING LIABILITY FOR A CONTINUOUS TRAUMA INJURY OR WHAT A DIFFERENCE A DAY MAKES

FROM MY BAR AT HOME:

One of the new truisms of our COVID era is that every day feels the same. Thankfully for workers’ compensation practitioners, every once in a while we stumble on a case that reminds us that time is real, and that sometimes even one day matters.

I was reminded of this when I found myself in the midst of a rousing debate on a Zoom call between two of my fellow defense attorneys, Dennis Boyd (great guy, by the way), and Bob Ojeda (a bit of a hothead, sometimes). My Dark ‘n’ Stormy in hand, I let the scene unfold before me.1

The case involved a dispute regarding liability for a workers’ compensation claim. Dennis was representing Fenway County and Bob was representing Metropolitan School District. Everyone agreed that the applicant, Richie Gedman, had sustained an admitted continuous trauma injury (CT) while working as the groundskeeper of a vast complex of baseball fields. The parties had stipulated to most of the key facts, including the parts of body injured, impairment, and apportionment. The only question was which defendant would be held liable.

As Bob explained, Mr. Gedman had worked at the sports complex from 1987 until his retirement on January 1, 2020. Toward the end of his employment, on July 1, 2018, the property had been transferred from the control of Metropolitan School District to the Fenway County park system, and Mr. Gedman’s employment had changed over to the County at the same time. Bob and Dennis were each claiming that the other guy’s client was liable, based on arguments over the date of injury for the CT.

“Guys, isn’t it weird to take an injury which is by its very nature continuous and reduce it to a single arbitrary date?” I mulled.

“Can the deep thoughts, Lebowski,” Dennis fired back. “It’s not arbitrary. Knowledge plus disability – look it up!”

So I did. As many of you loyal Lobby Bar/Home Bar patrons will already know, our wonderful workers’ compensation system wisely requires that we assign a single date of injury to a CT for several reasons, including to help determine liability. California Labor Code §5412 tells us how to accomplish this:

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.

To determine which defendant(s) will have liability for a CT, Labor Code §5412 must be taken together with Labor Code §5500.5, which states in relevant parts as follows:

(a) Except as otherwise provided in Section 5500.6, 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. (emphasis added)

As we can see there are two different ways to fix the end date for that one-year window: (a) the year leading up to the date of injury defined in Labor Code §5412 (knowledge plus disability); or (b) the year leading up to the last date of employment with injurious exposure. Which one to use, you might ask? Labor Code §5500.5 is helpful in that it tells us directly, as highlighted above, “whichever occurs first.”

Turning back to Mr. Gedman, if the date when he had both knowledge and disability (per Labor Code §5412) did not occur until after his retirement, then the one-year window would be controlled by the last date of injurious exposure, since this occurred first. In that scenario, the final year of employment would be entirely with Dennis’s client, Fenway County. But if the Labor Code §5412 date of injury occurred earlier, things could get more interesting.

We often see fights about the date of injury that boil down to when the applicant really knew or should have known that their injury was industrial. This time though, Bob and Dennis weren’t fighting about knowledge, as it was agreed by all that Gedman knew his complaints were industrial when he was advised so by his doctor on April 1, 2018. Instead, this fight was about disability.

So, what counts as disability? If you read the leading case on this question – the California Court of Appeal decision in State Compensation Insurance Fund v. Workers’ Comp. Appeals Bd. (Rodarte) (2004) 69 CCC 579 – it doesn’t sound that complicated: disability is compensable permanent disability (PD) or temporary disability (TD).2 However, of course my pals found a way to make it complicated.

See, Gedman was a fairly tough guy, and he wasn’t about to let some minor aches and pains keep him home from work. When he finally went to the doctor in April 2018, his PTP not only advised him that his injuries were industrial, but insisted that he take at least one day off. Gedman told his employer (the school district, at that time), filed a claim for benefits, and followed the doctor’s instructions.

Gedman was off for one day (April 2, 2018), before returning to normal duties. Under his benefits package through the school district, Gedman was paid for that day via industrial disability leave under Education Code §44043. He hadn’t missed any other time off work until his doctor took him off again on December 1, 2019, at which point he was off work for a month (with TD paid by the County, his employer at that time) before he decided to retire.

Based on these facts, Bob and the school district argued that there was knowledge plus disability when Gedman was taken off work on December 1, 2019. However, Dennis and Fenway County were arguing that the real date of injury occurred earlier, when Gedman was off work for one day on April 2, 2018. Although most issues in the case were not in dispute, Dennis and Bob were entangled in litigation over this date of disability question, which brings us back to our Zoom call.

Bob was convinced that he was in the right. “You want a date of injury in 2018, but come on — no TD, no disability, chief.” Obviously pleased with himself, he started to monolog like a villain in a superhero movie. “My client paid Gedman under their industrial leave policy, so there was no wage loss. With no wage loss, there’s no TD!” Thrown a curveball, Dennis looked very fretful.

Bob was really swinging for the fences, and like any great villain was of course not yet done with his monolog, stating, “What’s more, no TD is due until he misses three days of work under Labor Code §4652. This was only one day, so it wouldn’t be compensable. You struck out!” I think he may have even cackled after stating this.

But like I told you up top, sometimes one day actually matters and seeing an opportunity to pinch hit for Dennis, I suggested that both of them check their email as I had emailed them a decision. I explained to them that their case reminded me of a recent Court of Appeal decision I had read, Brawley Union High School District v. Workers’ Comp. Appeals Bd. (Sosa) 85 Cal. Comp. Cases 597.3

I explained that in Sosa two defendants fought over the date of injury under Labor Code §5412, and whether a single day of missed work for which benefits were provided under an industrial leave policy (Education Code §44043) was enough to count as “disability.” Here, the workers’ compensation judge (WCJ), the Workers’ Compensation Appeals Board (WCAB), and the California Court of Appeal all agreed that one day was indeed enough.

In doing so, the Court of Appeal discussed the argument that wage loss is required to establish a period of TD, which comes from the language of the Rodarte decision. In Sosa, the Court held that Rodarte did not actually support a wage loss requirement “as a matter of law,” but rather that Rodarte had tasked the WCJ with making a fact-specific finding regarding when disability occurred. Further, Sosa concluded that industrial leave payments made under the Education Code did not negate TD, but were, in part, TD.4

Sosa also considered the question of whether one day off work could constitute disability in light of Labor Code §4652. This section provides, in part that:

. . . no temporary disability indemnity is recoverable for the disability suffered during the first three days after the employee leaves work as a result of the injury unless temporary disability continues for more than 14 days or the employee is hospitalized as an inpatient for treatment required by the injury, in either of which cases temporary disability indemnity shall be payable from the date of disability.

I told Dennis and Bob that this might sound like a single day off work is not compensable. But the Court explained that the 13 additional days of disability which are required to make the first day off compensable need not be consecutive. In Sosa, there was no dispute that the applicant had eventually needed more than 14 total days of TD. As such, the Court appears to have reasoned that all periods of TD, whether consecutive or not, were compensable.

I brought it home by adding that as in Sosa, Gedman received industrial leave benefits from the District for his day off and had eventually been found to have more than 14 days of TD. “Guys, if we’re understanding Sosa right, Gedman’s one day off in 2018 will fix his date of injury under 5412, and the one-year window for his CT will fall entirely on Bob’s client. Sorry Bob.”

Bob slumped back in his chair, deflated. Dennis lit up with delight and promised that the first round of post-quarantine drinks would be on him.

DISCLAIMER:

All characters at my home bar are fictional and the storyline is simply a product of my vibrant imagination, though I was heavily influenced by a documentary I recently watched on the 1986 World Series between the Boston Red Sox and the New York Mets, which included the infamous Bill Buckner ball-between-the-legs hit game that would go on to cost the Red Sox the series.

Joe Truce, formerly a managing shareholder at our firm and creator of George the Bartender, would draw our attention to California Evidence Code §452(d), which provides that judicial notice may be taken of “records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”

We’re still making our own doubles. May George guide my hand. Bottoms up, friends, and keep washing your hands.

1 Tis an ol’ maritime tale that the Dark ’n’ Stormy originated from a ginger beer factory in Bermuda that was run by the British Royal Naval Officer’s Club, not too long after World War I. There sailors discovered that a strapping splash of the local Gosling’s Black Seal rum was an excellent complement to ginger beer. As for the name, it is alleged that a sailor enjoying the cocktail, perhaps two to three sheets to the wind, commented that it was, “The color of a cloud only a fool or a dead man would sail under.” But I digress.

2 A copy of Rodarte can be obtained via email request.

3 A copy of Brawley Union High School District can be obtained via email request.

4 In support of this conclusion the Court of Appeal in Sosa cites Mt. Diablo Unified School Dist. v. Workers’ Comp. Appeals Bd. (2008) 165 Cal. App. 4th 1154. A copy can be obtained via email request.

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