Workers’ Comp Claims After Retirement: Cumulative Trauma Injury

• Nov 25, 2024
• Blog
• Michael Burgis & Associates, P.C

Attorney Michael Burgis, a certified legal specialist in California Workers’ Compensation and managing attorney at MB&A, breaks down an incredible case where a worker filed a workers’ compensation claim 26 years after they stopped working—and it was found timely.

If you’re dealing with a work injury or know someone who may have a cumulative trauma injury, watch this video to learn about the rights you still have. Contact us any time, our team is here to help answer any questions you may have about workers’ compensation.

Transcript:

Workers’ Comp After Retirement

What if I told you that you can file a worker’s comp claim 26 years after you stopped working, and it would be found timely and you would be entitled to benefits?

Hi, my name is Michael Burgis. I’m a legal certified specialist in California Workers’ Compensation. I’m a trial attorney and the managing attorney of MB&A. In this video, I’m going to show you how. Please like, share, and subscribe to this channel as I’m putting out lots of content that will address many of your legal questions regarding workers’ compensation.

Raymond Craig Penrose vs. Denver Gold

In this case, in particular, I’m going to be talking about a case that just came down called Raymond Craig Penrose vs. Denver Gold. Essentially, this case is about a pro football player who filed a cumulative trauma claim for injuries he believes he sustained over the course of his professional career as a football player. In this case, 26 years after he had stopped working.

Cumulative Trauma Claim

Ultimately, this case goes over a lot of fundamental issues that are important to workers’ comp, but I want to highlight really one, and that is Labor Code § 5412 and the date of injury. This video is going to be discussing how an injured worker who filed a claim 26 years after they stopped working could have a timely workers’ comp claim.

Labor Code § 5412 and a Cumulative Trauma Injury

First off, the controlling statute is Labor Code § 5412. And when I start on this, let me first start with what the injured worker’s burden of proof is, right? This is what this injured worker had to prove. Ultimately, that is under Labor Code § 3208.1(b), and it defines a cumulative trauma injury as follows: “Occurring as repetitive manual or physical traumatic activities extending over a period of time, the combined effects of which may cause any disability or need for medical treatment.” So that’s the definition.

In this case, this injured worker clearly established 26 years later that he had sustained disability and need for medical treatment. And that was the result of his repetitive physical job duties. So, he met his burden.

Is the Claim Timely?

Now, the next issue is looking at whether it is timely. If the defendant is disputing the statute of limitations and claiming that it is untimely filed, they would have that burden. Before you can even get to that burden, you have to establish what is the date of injury. Is the date of injury the last day of injury’s exposure? If that were the case, that’s a 26-year-old injury, right?

So, that is where Labor Code § 5412 comes in. Let me just quote it verbatim, first off. Quote, “The date of injury in cases of occupational disease or cumulative injuries is the date upon which the employee first suffers disability therefrom, and either knew or, with the exercise of reasonable diligence, should have known that such disability was caused by his present or prior employment.” There are really two functional things here: disability and knowledge of industrial causation.

The date of injury is the concurrence of disability and knowledge. It’s industrial. The disability is medically driven, right? This is the need for medical treatment, inability to work, or whatever that may be. The real crux of this case is determining what “knowledge” means.

Ultimately, my argument as an injured worker’s advocate is that unless I’m representing a doctor, my client is a lay person. How do they know when something is industrial or not? They don’t. A lot of litigation surrounds this, but this case highlights a plethora of case law, all of which supports that unless the person’s a doctor or has medical knowledge, you can’t impute scientific medical knowledge on a lay injured worker.

Additional Case Law Around Cumulative Trauma and Workers’ Comp

I want to talk about these cases briefly. There’s City of Fresno v. WCAB, Chambers v. WCAB, Gleason v. WCAB, Hughes Aircraft v. WCAB, and Kaiser v. WCAB. These are all cases that are essentially confirming that you need a doctor to say this is caused by your work to trigger Labor Code § 5412’s date of injury.

Date of Injury

In this case, the date of injury was actually 26 years later. Remember, it’s the occurrence of disability and/or a need for medical treatment and knowledge, in this case from a doctor, that it is caused by work. The occurrence of that occurred 26 years later. So, the date of injury is timely.

As long as you file within one year of the doctor saying this is caused by work, it is timely. Imagine you’re an injured worker, and you knew that you suffered a disability. You’re having this current disability, current need for medical treatment. And you know that the degenerative disc disease in your back, the arthritis you’re having, is likely caused by repetitive job duties of lifting over the last 20 years. But you retired five years ago. This case says, wait a minute, you can file a timely workers’ comp claim.

Have You Sustained a Cumulative Trauma Injury?

If you’re an injured worker or an attorney, and somebody comes to you and is saying that they believe now, or they’re being told now by a doctor, that they’ve sustained industrial injuries but it was so long ago that you don’t think there’s a viable claim, this case tells you there is.

If you believe that you’ve sustained a cumulative trauma injury and there either is no medical evidence saying that, or it’s within one year of a doctor indicating that, you have a timely case. You can file a cumulative trauma claim. And under Labor Code § 5412, the date of injury, again, is the concurrence of disability and knowledge that it’s industrial. This case is reaffirming the case law here, and it’s an amazing case that is important for you all to know because there are a lot of benefits that injured workers would be entitled to, which they may presume they can’t file for because it would be untimely.

Contact MB&A for Legal Help with Your Workers’ Comp Claim

I hope this video has been helpful. If you have any questions or concerns, we’re standing by. Please like, share, and subscribe as we put out a lot of this content. If you have any questions or concerns, our office is standing by. We have the answers, and we’re here to help.