Labor Code Section 5500.5 and Latency: a Legal Perspective

• Publication year: 2024
• Citation: Vol. 37 No. 1
• Author: ANN MUNENE, ESQ.

Labor Code Section 5500.5 and Latency: A Legal Perspective

ANN MUNENE, ESQ.

SAN FRANCISCO, CALIFORNIA

It is common for an injured worker who has sustained an injury over a period of time to present a situation that could potentially involve multiple employers. In those situations, various questions arise. Who is responsible? How many employers should be joined? What happens if all the employers can not be found or reached due to personal, business-related, or jurisdictional reasons? What ifdiscovery of the injury is many years following occupational exposure to the hazards that caused the disease or injury? How does an injured worker recover on an industrial injury claim in these varying circumstances?

These scenarios present an interplay between the last date of injurious exposure, date of injury, and latency. Latency is defined as the period of time between the injurious exposure and the manifestation of symptoms due to that injurious exposure. The challenges of establishing the facts and medical evidence pointing towards liability in these scenarios has been litigated over time. Case law and rules were established around these circumstances and eventually, Labor Code section 5500.5 was enacted by the Legislature. Labor Code section 5500.5(a) provides that:

...liability for occupational disease or cumulative injury claims filed or asserted on or after January 1, 1978, shall be limited to those employers who employed the employee during a period of four years immediately preceding either the date of injury, as determined pursuant to Section 5412, or the last date on which the employee was employed in an occupation exposing him or her to the hazards of the occupational disease or cumulative injury, whichever occurs first. Commencing January 1, 1979, and thereafter on the first day of January for each of the next two years, the liability period for occupational disease or cumulative injury shall be decreased by one year so that liability is limited... January 1, 1981 and thereafter ....... one year.

In this article, we will look at the legislative purpose of Labor Code section 5500.5(a), and this section's interplay with the concept of latency.

LEGISLATIVE PURPOSE OF LABOR CODE SECTION 5500.5

The Flesher v. Workers' Comp. Appeals Bd. (1979) 23 Cal. 3d 322 case dictates that "Section 5500.5 was enacted in 1951 to codify the rule announced in Colonial Ins. Co. v. Industrial Acc. Com. (1946) 29 Cal.2d 79, 82 [172 P.2d 884], that an employee disabled by a progressive occupational disease may obtain an award for his entire disability against any one...