The difference between a specific injury and cumulative injury

In a recent case, a firefighter died apparently due to the culmination of the industrial lung cancer that developed as a result of his career and not because of a specific injury, a worker’s compensation panel found.

In September 2021, a workers’ compensation administrative law judge held that the firefighter – while employed by the County of Ventura’s fire department – succumbed to the effects of cancer arising out of and in the course of his employment. He died on Oct. 18, 2018.

The judge found that the firefighter’s widow was a total dependant but that their two adult sons, Anthony and Alejandro, were neither total nor partial dependants.

The widow filed a petition for reconsideration. She alleged the following:

• The judge should have relied on evidence about the firefighter’s date of injury in late 2016 to determine the issues.
• Anthony proved that he was a total dependant through credible testimony and through documentary evidence showing that he had no earnings in 2015 and 2016.
• The possibility that Anthony lived for short periods of time in other locations where he supposedly had unreported earnings was irrelevant.
• Alejandro was a partial dependant, as shown by the trial testimony.
• Alejandro’s and her own testimony proved persistent financial need despite regular earnings.
• Alejandro used funds from his late father to pay for customary daily living expenses.

Judge to revisit the issues

In the case of Murrieta, Irene (Reuben Murrieta-Dec.) vs. Ventura County Fire Department, Permissibly Self-Insured, a panel of the Workers’ Compensation Appeals Board of California canceled the decision of the judge. The panel returned the case to the trial level for further proceedings and for a new determination of the date of cumulative trauma injury under section 5412 of California’s Labor Code.

The dependency of the two adult sons was the issue in this case. Under section 3502 of the Code, the tribunal should determine questions of entire or partial dependency and questions of who are dependants and the extent of their dependency in accordance with the facts as they exist at the time of the employee’s injury.

Under section 5412 of the Code, the date of injury for a cumulative injury case is that date when the employee first suffered disability due to the injury and knew or should have known that the employment caused the disability.

If the dependency case involves a cumulative trauma injury resulting in death, the time of the employee’s injury will be the same as the date of the cumulative trauma injury determined under section 5412, the panel said.

No clear date for workplace injury

In this case, the judge failed to establish a clear date of the firefighter’s cumulative trauma injury under section 5412, which was a necessary precondition for deciding the dependency of his sons under the facts as they existed at the time of his injury in line with section 3502, the panel found.

The panel was unsure whether the judge answered the dependency issue based on the date of the specific injury – which was Oct. 18, 2018 – or based on the date of the cumulative trauma injury, which supposedly began on Sept. 19, 1997 and ended on Oct. 26, 2016.

The panel gave no final opinion on the issue of the relevant date or the issue of the dependency of the two sons. Instead, it said that the judge should revisit the question of the sons’ dependency based on the facts as they existed at the time of the cumulative trauma injury.