To Merge or Not to Merge: That Is the Question

• Jurisdiction: California,United States
• Author: Ryan Samstag, Esq.
• Publication year: 2020
• Citation: Vol. 33 No. 3

To Merge or Not To Merge: That Is the Question

Ryan Samstag, Esq.

Los Angeles, California

The year was 1968. America was in crisis. The Vietnam War had turned into a quagmire, political unrest was growing, and the statute of limitations on specific injuries was being eroded in the California workers' compensation system. In response—at least to that last item—the California Legislature passed a series of amendments to the Labor Code that established the anti-merger doctrine. These changes would have far-reaching effects on issues of dates of injury, apportionment, and liability between carriers.

Although the legislation is over 50 years old, or perhaps because it is 50 years old, practitioners, physicians, and even judges frequently ignore it. The problem often arises when an injured worker files an application for a continuous trauma claim but testifies to a specific injury or multiple specific injuries during the course of employment. It is all too common for the parties to fail to fully develop that testimony or for a physician to simply find one long, continuous trauma injury and punt on the issue of apportioning liability to the various specific injuries. This article is intended to help the practitioner understand the law and issues surrounding merger and anti-merger so they can effectively represent their clients and properly determine liability between potential defendants.

What Is Anti-Merger?

The anti-merger doctrine became effective January 1, 1969, and included the enactment of Labor Code sections 3208.1 and 3208.2 and an amendment to Labor Code section 5303. The legislative committee comment reads, in part, that the purpose of the anti-merger legislation was "to nullify the effect upon the law of Workmen's Compensation of certain recent decisions of the Court of Appeal and of the Supreme Court."

In that line of cases, culminating in the decision in De Luna v. Workmen's Comp. Appeals Board (1968) 258 Cal. App.2d 199, the courts had allowed injured workers to circumvent the statute of limitations by merging an earlier specific injury with a later continuous trauma injury. In De Luna, applicant sustained a specific injury to his back on July 16, 1962, for which he self-procured medical treatment but did not file an application. He continued to work until 1966. Subsequently, an application was filed for cumulative injuries through his last date of work. The WCAB ultimately found that the statute of limitations barred the July 16, 1962, injury. However, the Court of Appeal stated that "the specific injury of July 16, 1962, should have been considered as an integral part of applicant's claim for cumulative injuries" and annulled the decision of the WCAB. By finding that applicant's specific injury otherwise barred by the statute of limitations was part and parcel of his continuous trauma injury, the court allowed for the possibility of an unapportioned award of benefits where that right should not have existed.

In response, the Legislature enacted a group of laws known as the anti-merger legislation, including Labor Code section 3208.1, that defined specific injuries and codified the judicially created doctrine of cumulative trauma injuries by stating:

An injury may be either: (a) "specific," occurring as the result of one incident or exposure which causes disability or need for medical treatment; or (b) "cumulative," occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment. The date of a cumulative injury shall be the date determined under Section 5412.

In addition, Labor Code section 3208.2 was enacted. It...