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State Compensation Insurance Fund v. Workers' Comepnsation Appeals Board6/24/2004
CERTIFIED FOR PUBLICATION
State Compensation Insurance Fund (State Fund) seeks review of an order of the Workers' Compensation Appeals Board. The order denied the State Fund's petition for reconsideration and, instead, affirmed an award in favor of Monica Rodarte finding the date of cumulative trauma injury was the first day of compensable temporary disability and placing all liability on State Fund pursuant to Labor Code section 5500.5. State Fund contends the legal date of injury was some 11 months before, when her treating physician prescribed a splint and she returned to modified work duties. The Board's opinion masks the true issue, which is whether permanent disability can satisfy section 5412. We hold that it can. We shall annul the Board's order and remand for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL SUMMARY
The facts are undisputed. Monica Rodarte sustained work-related carpal tunnel and tendinitis in her right upper extremity while employed as an assembler at a sound equipment manufacturing plant from 1995 through August 8, 1998. Although she worked continuously at one company, Acoustic Authority, she was actually employed by two different temporary placement agencies - Apple One for the period April 1995 to February 28, 1998, and Temptrak for the period March 1, 1998 to August 7, 1998. Apple One’s insurer is in liquidation and the claims are administered by California Insurance Guarantee Association (CIGA).Temptrak was covered by State Fund.
Rodarte obtained medical care consisting of anti-inflammatory medication, a wrist splint/brace and physical therapy beginning October 3, 1997. The treating physician permitted her to return to modified work. Rodarte filed a claim for benefits in October 1997.
Acoustic Authority's supervisors accommodated Rodarte's injury and she continued working in modified positions at full salary, but without the manager's knowledge of her injury. On August 7, 1998, when the manager discovered Rodarte's injury, she was terminated because she could not do the job for which she was hired. Rodarte testified that she would have continued working had she not been terminated.
Rodarte underwent surgery. She was considered permanent and stationary by an agreed medical evaluator as of May 31, 2000. The agreed medical evaluator found a single continuous trauma during the entire employment period, from April 4, 1995 until Rodarte stopped working in August 1998.
The workers' compensation judge found the date of injury to be August 7, 1997 to August 7, 1998 (the year preceding her termination) and that Rodarte had a permanent disability rating of 27 percent. CIGA was dismissed and State Fund was ordered to pay the entire award. The judge ruled that filing the claim established the requisite knowledge for section 5412.
State Fund petitioned for reconsideration, contending the date of injury was incorrect. It pointed out that Rodarte had filed a claim form in October 1997, when she received splints and was placed on modified duty. Thus, State Fund asserts that in October 1997 disability and knowledge of work-relatedness coincided. Therefore, State Fund contends, pursuant to sections 5412 and 5500.5, the correct date of injury should be October 1996 to October 1997. That entire period precedes State Fund's coverage and falls wholly during CIGA's coverage.
The Board disagreed, holding that "disability" means compensable temporary disability; that is, time lost from work, citing County of Los Angeles v. Workers' Comp. Appeals Bd. (Gregg) (1982) 47 Cal.Comp.Cases 1215 and Christians v. California Cas. Indem. Exch. (1975) 3 Cal. Workers' Comp.
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