A California appeals court annulled a Workers’ Compensation Appeals Board decision ordering arbitration of a coverage dispute to obtain a factual determination of the date of injury for a former New York Yankee who retired in 1978.

A workers’ compensation judge found that the cumulative trauma claim George Zeber filed in 2017 was not barred by the one-year statute of limitations, but the judge never made a finding on the date of injury to determine whether a related coverage dispute could be sent to mandatory arbitration.

Zeber in May 2017 filed a claim, alleging he sustained cumulative trauma injuries playing baseball for the Yankees between June 1, 1968, and June 14, 1978.

A workers’ compensation judge in June 2022 held that Zeber was injured in the course of employment but deferred any finding of permanent disability, apportionment or attorney fees for further development of the medical record.

The judge said the one-year limitations period to file a workers’ compensation claim under Labor Code Section 5405 did not preclude the claim because under Section 5412, the date of injury is the day a worker first suffered a disability and knew or should have known that it was related to work. The judge found Zeber’s testimony credible that he didn’t learn of his right to file a workers’ compensation claim in California until 2017 at the earliest.

Additionally, the judge found that the Yankees had comp coverage provided by an insurer that is now administered by Travelers Indemnity Co. The judge noted that there was a dispute over a right of contribution — essentially deciding proportional liability when more than one party is responsible for covering the same injury — and ordered arbitration under Labor Code Section 5275(a)(2).

Travelers filed a petition for reconsideration, arguing that the Yankees failed to provide proof of coverage for the period from April 5, 1977, to Sept. 1, 1978. The carrier also argued that the medical reports Zeber submitted did not constitute substantial medical evidence.

The WCAB in September 2022 amended its decision to defer the issue of insurance coverage and clarify that the award was made against Travelers.

Travelers petitioned the 4th District Court of Appeal for a writ of review, arguing that the WCAB erred in sending the coverage dispute to arbitration. The WCAB filed an informal response, saying no award could be issued until the coverage dispute is resolved and asking the appeals court to annul the decision and remand for the WCAB to issue a corrected award.

The 4th DCA in February 2023 vacated the WCAB decision and remanded the case for further proceedings. After remand, the WCAB in March 2024 reinstated and affirmed its earlier decision, but it rescinded and deleted the award, pending further proceedings. The WCAB then sent the case back to the trial level for further proceedings, “including but not limited to mandatory arbitration of insurance coverage.”

Travelers in April 2024 petitioned the 4th DCA for review, arguing that the WCAB exceeded its authority by sending the coverage dispute to arbitration.

The 4th DCA said Labor Code Section 5275 mandates arbitration for both coverage disputes and right-of-contribution determinations, and allows arbitration for other disputes upon agreement of the parties and without regard to the date of injury.

“Although Section 5275, Subdivision (a)(1) is silent on how the ‘date of injury’ limits arbitration of insurance coverage disputes, the WCAB has consistently concluded that such disputes must be submitted to mandatory arbitration only if the date of injury occurs on or after a specific triggering date,” the appeals court said.

The WCAB argued the triggering date is Jan. 1, 1990, and Travelers concurred.

The appellate court also agreed, saying Section 5275 was added as part of the Margolin-Bill Greene Workers’ Compensation Reform Act of 1989, which applies only to injuries occurring on or after Jan. 1, 1990.

Though the parties agreed about the dates of injuries covered by the statute, they disagreed about how to determine the date of injury for Zeber’s claim.

The WCAB argued that it would be appropriate to determine the date of injury under Labor Code Section 5412, which would put it sometime in 2017 or 2018, when Zeber learned of his right to file a workers’ compensation claim.

Travelers argued that Zeber’s date of injury is Sept. 1, 1978, the last day he played ball.

The court said Labor Code Section 3208.1 requires the date of injury for a cumulative trauma claim to be determined under Section 5412. The 1978 date is insufficient because it provides only a date of disability and not the date of actual or constructive knowledge that the disability arose from employment.

Zeber argued that the error of not finding an injury date was harmless because the claim was not barred by the one-year statute of limitations. As a result, any date the judge selects within a year of May 2017, when Zeber filed his claim, would be after 1990, and the coverage dispute would be subject to mandatory arbitration.

The appeals court said the judge’s implied finding of a date of injury isn’t conclusively supported by substantial evidence.

“The WCJ’s ‘review’ of the ‘date of injury pursuant to [Section 5412],’ however, focused on Zeber’s awareness that he could file a workers’ compensation claim,” the court said. “Knowledge that one can file a workers’ compensation claim is different from knowledge that a disability was caused by a present or prior employment. Thus, we cannot rely on the WCJ’s implied finding of a ‘date of injury’ to support the WCAB’s order.”

Because the date of injury is a factual question and a prerequisite for mandatory arbitration, the appeals court concluded that the board exceeded its authority by sending the coverage dispute to arbitration.

The court’s decision in Travelers Indemnity Co. v. Workers’ Compensation  Appeals Board (Zeber), G064030, 05/07/2025, unpublished, is here.