Sullivan on Comp Blog

Multiple employers or insurers can be liable for a cumulative trauma (CT) injury, and it's common for employers or insurers to dispute whether and how much liability they have for such an injury. Pursuant to Labor Code 5500.5(a), liability for a CT injury is limited to employers who employed the worker during the one-year period immediately preceding the date of injury (LC 5412), or the last date of injurious exposure, whichever occurs first.

So there's no single point from which the liability period is determined. It could be based on either the date of injury under LC 5412 or the last date of injurious exposure. Furthermore, the date of injury under LC 5412 requires the concurrence of: (1) compensable disability; and (2) knowledge of industrial causation. The liability period for a CT injury is a frequent source of contention.

Pursuant to Labor Code 5500.5(a), liability for a cumulative trauma injury is limited to employers who employed the worker during the one-year period immediately preceding the date of injury (LC 5412), or the last date of injurious exposure, whichever occurs first. Multiple employers or insurers can be liable for a cumulative trauma injury. An employee can choose to obtain an award for her or his entire CT injury from one or more employers for whom they have worked within the preceding year (LC 5500.5(c)).

LC 5005 also allows an employee and any employer to enter into a compromise and release (C&R) agreement settling all or any part of the employee's claim in cases involving cumulative trauma or occupational disease. If an employer settles all of the applicant's cumulative trauma claim, it may resort to contribution proceedings against all remaining defendants. If an employee and an employer settle only part of the worker's CT claim, the worker may recover from other defendants for the portion of exposure not released. So, in cumulative trauma claims involving multiple defendants, the terms of a C&R will determine whether the employee or the settling employer has ongoing rights against the remaining defendants.

The statute of limitations for pursuing death benefits is established in LC 5406. Except for LC 5406.5 and LC 5406.6 (which cover deaths from asbestos and HIV-related disease), proceedings for the collection of death benefits, per LC 5406(a), may be commenced one year from:

1. the date of death when it occurs within one year from date of injury;

2. the date of last furnishing of any compensation benefits, when death occurs more than one year from the date of injury; or

3. the date of death, when death occurs more than one year after the date of injury and compensation benefits have been furnished.