WORKER COMPENSATION CLAIMS

Travelers Indemnity Co. v. Workers Compensation Appeals Board, 2025 Cal App LEXIS 340
George Zeber filed a worker compensation claim under Labor Code section 5275(a)(1) against the New York Yankees alleging that he suffered a cumulative compensation injury between June 1968 and September 1978 while in their employ. The Yankees argued, inter alia, that the claim was barred by the statute of limitations. The worker compensation judge (WCJ) found Zeber sustained an injury arising out of and in the course of his employment and that the one-year limitations period from “[t]he date of injury” set forth in Labor Code section 5405 did not preclude Zeber's claim. The WCJ determined that section 5412 provides the date of injury for use with section 5405. Under section 5412, the date of injury is the “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.” He also noted that an injured worker cannot be penalized for failing to exercise his right to pursue a worker compensation claim absent notification by the employer. The WCJ found Zeber became aware of his right to file a worker compensation claim when his son, who was also a professional athlete, filed his own claim in 2017. Further, there was no evidence of Zeber ever being advised about his rights to file a workers' compensation claim in California. Therefore, the statute of limitations was tolled.

The WCJ also found the Yankees had coverage provided by Travelers. In light of that finding, the WCJ noted that dispute between the parties involving a right of contribution must be sent to arbitration pursuant to section 5275(a)(2). Travelers filed a petition of review with the Court of Appeal requesting that the WCAB annul the award, inter alia, because of the statute of limitations. The WCAB responded by stating that it concluded no award could be issued against Travelers until the deferred insurance coverage issues were finally adjudicated. It requested the court annul the decision and remand the matter for the WCAB to issue a corrected award. The court did so. Following remand, the WCAB reinstated and affirmed its decision but rescinded and deleted the award pending further proceedings. It also agreed with Travelers that section 5275(a)(1) only applied to “dates of injury” beginning January 1, 1990. Travelers filed a petition with the Court of Appeal for reconsideration.

The Court of Appeal remanded the matter to the WCAB. The parties disagreed on how to determine the date of injury. The WCAB argued the date of injur” must be determined pursuant to section 5412. Travelers argued the date of injury was the last day Zeber sustained his workplace injury, or September 1, 1978, as stipulated by the parties. The Court of Appeal sided with the WCAB on this point. Zeber suffered a cumulative traumatic injury. Labor Code section 3208.1 provides that the date of a cumulative injury shall be the date determined under Section 5412. Section 5412 provides that the date of injury is that date upon which the employee first suffered disability therefrom and either knew or should have known that the disability was caused by his or her employment. Thus, under the plain language of section 5412, Zeber's date of injury occurred at the time he suffered disability and either knew or should have known his disability was caused by his employment. The stipulated September 1, 1978 date was insufficient to determine the date of injury because that date satisfied only the first element (date of disability) and not the second (date of actual or constructive knowledge).

However, the WCJ never made a finding of the “date of injury” under section 5412 for the purposes of section 5275(a)(1). Rather, the WCJ discussed the date of injury for statute of limitations purposes only, and found that “without appropriate knowledge, the claim cannot be barred pursuant to [section] 5412.” Because the date of injury is a factual question and a prerequisite for mandatory arbitration, the WCAB acted in excess of its authority to send the insurance coverage dispute to mandatory arbitration. Zeber contended that the error in not finding a date of injury for purposes of section 5275(a)(1) was harmless. The argument for harmless error was the WCJ impliedly found the date of injury occurred within one year of the May 9, 2017 filing of the application when the WCJ rejected the statute of limitations defense. The implied finding of the date of injury, however, was not conclusively established by substantial evidence. Under section 5412, the date of injury is the date of the concurrence of the disability and the worker's knowledge that such disability was caused by his or her employment. The WCJ's review of the date of injury pursuant to section 5412 focused on Zeber's awareness that he could file a workers' compensation claim. Knowledge that one can file a workers' compensation claim is different from knowledge that a disability was caused by one’s employment. Thus, the Court could not rely on the WCJ's implied finding of a date of injury to support the WCAB's order and remanded the matter to the WCAB to make this determination.