Case, Kenneth

Applicant Kenneth Case, a master automotive technician, sustained right knee and other injuries while working for Union Dodge, with employment insured by Arrowood (2003) and Everest (2004). After Everest settled with applicant by Compromise and Release for $650,000, it instituted contribution proceedings against Arrowood, and an arbitrator found two separate cumulative injuries (one for the year preceding February 4, 2004, and one for May–September 30, 2004). Arrowood sought reconsideration, arguing there was only one cumulative injury. The Board agreed there was only one cumulative trauma injury, holding under Western Growers v. WCAB (Austin) that the number of injuries is a factual medical question, and that the AME's two-injury opinion was based on the outdated pre-Austin Coltharp legal doctrine. However, the Board found the Labor Code section 5412 date of injury was February 4, 2004 (when applicant was first disabled and knew it was work-related), making the section 5500.5 liability period the one year preceding February 4, 2004. The petition was granted and the arbitrator's conclusions amended accordingly, with all other issues deferred.