Reset A A Font size: Print

Court of Appeal, Fourth District, California.


No. E017807.

Decided: December 11, 1996

Allen, Rhodes & Sobelsohn, Calabasas and W. Steven Heise, for Petitioner. No appearance for respondent Workers' Compensation Appeals Board. Law Offices of Moga & Hurley and Michael J. Hurley, Grover City, for Respondent.


In this matter we review a decision of the Workers' Compensation Appeals Board awarding benefits to applicant Georgia M. Ingram. The primary issue is whether or not the Board properly found that Applicant's claim was not barred by the statute of limitations. We hold that the decision is not supported by substantial evidence, and must in large part be annulled.


Applicant was employed by respondent Cucamonga Unified School District (“Employer”) as a cafeteria supervisor. In March, 1992, she was lifting a case of applesauce out of a refrigerator when “this electric shock, like an electric shock ran from the bottom of my back all the way up to the top․” She did not report it because she thought that it was a “one time thing,” but the pain increased. She had to pull herself up the stairs using her arms when she got home. She also had a “sharp, aching pain that would start with the spastic type of pain” in her legs. Although she went to work the next day and for some time thereafter, she found that she had to sit down more than usual. Within a few days, she went to a doctor and received what she believed to be a cortisone shot in the back. She then went back and worked through the end of the school year--with the exception of at least one other day attributable to her injury --but her condition did not improve. At some point--apparently during the summer of 1992--this doctor took X-rays and performed some sort of massage or manipulation on her back.

When Applicant returned to work in the fall of 1992, she no longer did the heavier work but would wait for assistance.

Applicant continued to work through the 1992-93 school year. In the summer of 1993, her regular doctor referred her to a second doctor for a complete examination. This doctor discovered an umbilical hernia which he connected to her work. Applicant was given an “off-work” note and did not return to work.

Also in the summer of 1993, the first doctor told Applicant that her back condition might also be work-related. His delay in relaying this opinion may have been because Applicant had not fully described her work and did not mention that the sudden onset of pain occurred when she was lifting at work.1

However, during her testimony in this matter, Applicant testified that after the March, 1992, incident, she “just thought it was something--because I did this every day--that it was just going to be a one time thing” and “I just thought it was from constantly doing that [lifting] week after week, day after day, month after month” and “I thought like it was the repetitiveness motion of doing work every day that was causing me to be in pain” and “I didn't take into account that it was anything other than the strain from, you know, exercising, you know, when you lift the boxes and doing the work.”

In any event, Applicant then filed a claim for Workers' Compensation benefits in November, 1993. This application alleged a specific injury occurring in March, 1992 and claimed injury to the back, legs, and hernia.

After the hearing, the Workers' Compensation Judge (WCJ) issued an award in favor of Applicant, finding that her claim was not time-barred. He opined that there was “no showing that the worker had the requisite knowledge of the industrial relationship․” In his “Report on Reconsideration,” he indicated that the statute of limitations issue had been considered in the context of a cumulative trauma claim rather than one based on a specific injury.

The order under review does not cover the issue of permanent disability, as it awards only medical treatment and temporary disability with other issues deferred.


In our view, the statute of limitations argument is dispositive of most of the case.

Labor Code section 5405, subdivision (a)2 governs specific injuries-- that is, those injuries which result from specific incidents or accidents and cause more or less immediate harm. (See also § 3208.1.) It requires that an injured employee commence proceedings for Workers' Compensation benefits within one year of the “date of injury.” It is indisputable that Applicant suffered an “injury,” in the context of this section, in March of 1992. She immediately experienced impairment of function which affected her ability to perform certain activities, including those required for her work. (See Cal. Code of Regs., Title 8 § 9727, explaining that even a “slight pain” constitutes a disability if it would “cause some handicap in the performance of the activity precipitating the pain.”) Furthermore, she missed work the next day. (See Nielsen v. Workers' Comp. Appeals Bd. (1985) 164 Cal.App.3d 918, 927, finding that disability began no later than the day the worker called in sick following the alleged incident.) Thus, if section 5405 applies without qualification, Applicant's claim, filed in November of 1993, was too late.

However, the WCJ treated the claim as one for cumulative injury.3 Section 5412 applies to claims for “occupational diseases or cumulative injuries.” For the purposes of such cases, 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.”4 (Emphasis supplied; see Chavez v. Workmen's Comp. Appeals Bd. (1973) 31 Cal.App.3d 5, 10-11.) If this section was properly applied, the date of injury as described above is not determinative, and the claim was not barred unless Applicant either knew, or had reason to know, of the industrial causation of her injury more than a year before November of 1993 when the claim was filed.

As noted above, the WCJ--affirmed by the Workers' Compensation Appeals Board-- found that Applicant did not have such actual or constructive knowledge. As we will explain, this conclusion is untenable.

The decision of the Board is based upon the principle that Applicant cannot be charged with knowledge of the industrial causation of her injury until she was so informed by her doctor. Although there are cases which do apply such a principle, they are readily distinguishable insofar as they reach a conclusion opposite to ours.

The first modern case to discuss the problem in detail is City of Fresno v. Workers' Comp. Appeals Bd. (1985) 163 Cal.App.3d 467. In that case, a managerial employee suffered heart problems in late 1980. By early 1981, he personally began to believe that his problems were job-related. However, in July a doctor for the city opined that they were not job-related. He did not file a claim until well over a year after the initial hospitalization.

The City of Fresno court held that the opinion of a layman employee on causation does not trigger the statute of limitations. It “gleaned” from earlier decisions the rule that “unless the nature of the disability and applicant's training, intelligence, and qualifications are such that the applicant should have recognized the relationship between the known adverse factors involved in his employment and his disability,” the statute of limitations does not begin to run. (163 Cal.App.3d at p. 473.) It then went further, and held that the fact that a lay employee does make a connection between his work and his injury is not conclusive, at least where the employee is not qualified to make the medical connection. (Ibid.) The opinion suggests that in most cases, “expert medical advice” will be required before the employee will be charged with either actual or constructive notice of the cause of his injury. (Id., at p. 472.)

Shortly after the decision in City of Fresno, this court dealt with a similar case in Nielsen v. Workers' Comp. Appeals Bd, supra. In Nielsen, the applicant was a welder whose work involved the frequent lifting of weights up to 100 pounds and the shoving or pushing of large heavy cylinders. He performed these duties without difficulty. However, within a week after starting an assignment disassembling and reassembling bottle racks, he began experiencing pain radiating down his left leg. When he went off work, he told the examining doctor that his condition was due either to lifting and bending on the job, or a recent kick-boxing incident. Two weeks later, he reported the kick-boxing incident as the probable cause to a second doctor, but a few months after that a third doctor informed him that the injury had probably been caused by lifting. At the Workers' Compensation hearing, the employee testified “emphatically” that he believed his condition was work-related from the first day he was off work. (163 Cal.App.3d at pp. 924-926.)

We noted that, standing alone, the employee's testimony that he had made the immediate connection between his injury and his work would have been sufficient to trigger the statute of limitations. However, the employee argued that it did not began to run until he consulted the third doctor, who confirmed his suspicions. This court politely characterized City of Fresno as “perhaps a bit overly expansive” but agreed that the absence of medical confirmation is an “important consideration.” That said, we affirmed the decision of the Board denying benefits, noting that “The injury claimed was not some exotic disease the causes of which might be obscure and debatable․” (164 Cal.App.3d at pp. 929-931.)

A third case relating to the point is Bassett-McGregor v. Workers' Comp. Appeals Bd., supra, in which the employee filed a claim alleging a specific injury to her heart, and later amended it to claim cumulative injury. The court of appeals rejected the employee's contention that she did not have notice under section 5412 until a doctor told her that her heart attack (a specific injury) was due to cumulative trauma, holding that she was well aware of the industrial causation when she filed her original claim and that this general knowledge controlled.

All three of these cases affirm the decision of the Board and all note that the date of accrual of a cumulative injury claim involves issues of fact, with respect to which the Board's decision is to be affirmed if supported by substantial evidence. (E.g., Nielsen, supra, 164 Cal.App.3d at p. 927; LeVesque v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 627, 637.) However, although the principle of deference to the Board's findings of fact is well established, the standard is still substantial evidence, and we will not uphold a decision where the record is utterly devoid of such evidence.

This case is even more straightforward than Nielsen. Applicant was lifting a heavy box when she experienced a sharp, shooting pain which immediately caused impaired mobility and substantial discomfort. The cause and effect relationship could hardly have been more clear if it had appeared magically written on the wall. No special training or expertise was necessary for Applicant to realize that her work activity had caused the pain, and the record, as in Nielsen, is replete with evidence that she did realize the connection.

Certainly in many cases the timing of a medical report or doctor's opinion that a condition is industrially related will be of considerable significance in the determination of when an employee acquired knowledge of causation. This would generally be true, for example, in latent disease cases or cases involving illnesses from toxic exposure; we are even prepared to recognize that the source of some heart and stress problems may not be correctly identified by the lay employee. But where an employee suffers a sudden pain while performing a physically stressful activity, no expert confirmation is necessary. Applicant had knowledge of the industrial causation of her injury in March, 1992.

As noted above, the WCJ deferred the issue of permanent disability. We here hold that Applicant's claim for injury to her back and legs is barred under either section 5405 or 5412. However, the award also finds that Applicant suffered a hernia as a result of her employment. In this respect the evidence is unclear. Applicant herself points to an exhibit submitted by Employer which indicates that she reported “pressure to abdominal area” to a doctor as early as January 1, 1992 (well before the lifting incident). “Pressure to the abdomen,” however, is an ambiguous phrase. The report of a doctor retained by Applicant's counsel in June, 1994, indicates that Applicant told him that she had suffered pain and swelling in the periumbilical region since March, 1992 (the approximate date of the lifting incident). On the other hand, at the hearing Applicant testified that she began having symptoms from her hernia in the summer of 1993 -- shortly before it was diagnosed.

If Applicant suffered no symptoms from her hernia until the summer of 1993, any claim with respect to the hernia would not appear to be barred in any event.5 If, however, she suffered pain which began contemporaneously with the leg and back pain, and was therefore associated with a specific incident, she could properly have been found to have been on notice of the industrial causation of the hernia as well as the leg and back injury as of March, 1992. As the WCJ and the Board apparently felt that medical confirmation was essential, the conflicts and ambiguities in the record were not resolved. Accordingly, we will remand for further proceedings.6

The order of the Board is annulled insofar as it awards benefits with respect to Applicant's leg and back injuries. With respect to her hernia, the matter is remanded for such further proceedings as the Board deems appropriate, to resolve the statute of limitations issue in accordance with the views expressed in this opinion.


1.  Employer suggests that the failure to relate Applicant's injury to her work was due to the fact that it was not due to her work and Applicant never thought it was--there was no incident in March, 1992 at all. The issue of credibility in this respect was resolved in Applicant's favor.

2.  All subsequent statutory references are to the Labor Code.

3.  The record reflects no formal amendment of Applicant's original claim to assert an injury based on cumulative trauma. However, Employer does not assign error. Such an amendment would have been proper and would have “related back” to the time of filing the original application. (Bassett-McGregor v. Workers' Comp. Appeals Bd. (1988) 205 Cal.App.3d 1102, 1116.)

4.  Thus, an employee cannot treat even a cumulative injury as one with a “rolling” statute of limitations, because the “date of injury” is that when the condition first causes disability.

5.  Employer argues that the finding of industrial causation cannot stand because Applicant's symptoms did not begin until after the end of the school year, at a time when she was not working. As we explain, this is not clear from the record. Nor do we feel qualified to hold, as a matter of law, that a hernia could not develop “silently” and then manifest itself at a time when no strenuous work is being performed.

6.  Although, as we have indicated, it was not procedurally improper for the WCJ to treat Applicant's claim as one for cumulative trauma, we question the extent to which it was factually appropriate. We find no support for any conclusion that Applicant suffered a cumulative trauma to her legs and back between March 1992 and September 1993. Her testimony was explicit on the existence of a specific incident causing immediate disability. Whether or not her hernia was the result of cumulative trauma is simply unclear from the record.

McKINSTER, Associate Justice.

HOLLENHORST, Acting P.J., and RICHLI, J., concur.