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Understanding Accumulation of Permanent Disability Under LC 4664(c)(1)

Posted by:  Sure S. Log
Topics: Apportionment Permanent Disability PD accumulation LC 4664(c)(1) prior award regions of the body LC 4664

Labor Code § 4664(c)(1) states, "The accumulation of all permanent disability awards issued with respect to any one region of the body in favor of one individual employee shall not exceed 100 percent over the employee’s lifetime unless the employee’s injury or illness is conclusively presumed to be total in character pursuant to Section 4662." The regions of the body for the purposes of the statute are:

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Injuries Barred by Criminal Convictions Under LC 3600(a)(8)

Posted by:  Sure S. Log
Topics: LC 3600(a)(8) criminal conviction criminal conduct felony felonious act wobbler Penal Code 17(b) AOE/COE deviation misdemeanor

Labor Code § 3600(a)(8) is an affirmative defense that bars a claim for compensation when the injury is "caused by the commission of a felony, or a crime which is punishable as specified in subdivision (b) of Section 17 of the Penal Code, by the injured employee, for which he or she has been convicted." That defense was enacted in 1986 and originally barred an employee's injury "caused by the commission of a felonious act by the injured employee, for which he or she has been convicted." The statute was amended to its current form in 1993.

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Understanding the Commercial Traveler Rule

Posted by:  Sure S. Log
Topics: Exclusive Remedy Going and Coming Rule commercial traveler rule personal errand personal activity material departure reasonably contemplated

Under the commercial traveler rule, an employee traveling on the employer's business is regarded as acting within the course of employment during the entire period of his or her travel. Workers' compensation coverage applies to the travel itself and also to other aspects of the trip reasonably necessary for the sustenance, comfort and safety of the employee. But the commercial traveler rule does not cover all of an employee's activities. Personal activity not contemplated by the employer might constitute a material departure from the course of employment. (Latourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal. 4th 644, 652.)

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Special Report: WCAB Issues En Banc Decision Regarding Application of Kite

Posted by:  Sure S. Log
Topics: Permanent Disability combining disabilities synergistic effect combining impairments PD Combined Values Chart reduction formula Kite

In 2013, the WCAB held in Athens Administrators v. WCAB (Kite) that an injured worker's disabilities are not required to be combined using the Combined Values Chart (CVC). The WCAB explained that although the AMA guides favor the combined values method, "physicians may, under certain circumstances, employ a different method of determining impairment if they remain within the four corners of the AMA Guides."

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The Initial Physical Aggressor Defense Under LC 3600(a)(7)

Posted by:  Sure S. Log
Topics: initial physical aggressor LC 3600(a)(7) altercation physical aggressor credibility reasonable fear bodily harm

Labor Code § 3600(a)(7) establishes the initial physical aggressor defense. It explains that a claim is not compensable when the injury arises "out of an altercation in which the injured employee is the initial physical aggressor." That defense embodies the legislative intent to exclude from compensation those who introduce violence into the workplace.

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Special Report: Understanding the Impact of California Minimum Wage Changes on Temporary Disability Rates

Posted by:  Sure S. Log
Topics: Temporary Disability average weekly wage average weekly earnings AWE AWW earning capacity minimum wage

Effective April 1, 2024, the minimum wage for many California fast-food workers increased from $16 to $20 an hour. The changes were brought by Assembly Bill (AB) 1228, which was signed by Gov. Gavin Newsom on Sept. 28, 2023. AB 1228 added Labor Code § 1474, § 1475 and § 1476.[1]

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Change of Treating Physician After Discharge from Care

Posted by:  Sure S. Log
Topics: PTP Medical Treatment change of treating physician continuing treatment Primary Treating Physician discharge from care

Nearly one-quarter century ago, in Tenet/Centinela Hospital Medical Center v. WCAB (Rushing) (2000) 80 Cal. App. 4th 1041, the Court of Appeal held that when a treating physician has declared the employee's injury to be permanent and stationary, has released the employee to return to work and has prescribed no further doctor-involved treatment or visits, the employee did not have a right to change treating doctors just because future medical care was warranted. Instead, the court explained that the employee was required to comply with the provisions of California Code of Regulations, Title 8, § 9785(b), and Labor Code § 4061 and § 4062, to change primary treating doctors (PTPs).

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WCAB Issues En Banc Order and Notice of Intent to Impose Sanctions for Filing Frivolous Petitions for Reconsideration

Posted by:  Sure S. Log
Topics: Reconsideration Petition for Reconsideration petition for removal threshold issue sanctions hybrid decision interlocutory order

When a party disputes an order, decision, or award issued by a workers' compensation judge (WCJ), there are two options for appeal. Pursuant to Labor Code § 5900, a party may file a petition for reconsideration of a "final order, decision, or award made and filed by the appeals board or a workers' compensation judge." On the other hand, LC 5310 states, "The appeals board may ... remove to itself, or transfer to a workers' compensation administrative law judge the proceedings on any claim." A petition for removal is the appropriate remedy for interim, nonfinal orders.

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SPECIAL REPORT: WCAB Issues Significant Panel Decision That It Will Continue to Follow Shipley

Posted by:  Sure S. Log
Topics: Reconsideration Petition for Reconsideration LC 5909 operation of law Shipley Zurich due process

As discussed in an earlier Special Report, for more than 30 years, the Workers' Compensation Appeals Board (WCAB) relied on Shipley v. WCAB (1992) 7 Cal. App. 4th 1104 to decide petitions for reconsideration, even if it did not act timely on a petition pursuant to Labor Code § 5909. That statute states, "A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date of filing." Based on Shipley, the WCAB generally held that if a petition was not considered within the time limit of LC 5909 due to the WCAB's own inadvertent error, it still may decide the merits of the petition, even if the 60-day time period has elapsed. On Dec. 18, 2023, the 2nd District Court of Appeal issued its decision in Zurich American Insurance Co. v. WCAB (2023) 97 Cal. App. 5th 1213, holding that this practice was improper. Zurich stated that "the language and purpose of section 5909 show a clear legislative intent to terminate the Board's...

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Liability for Temporary Disability When Employee Refuses Work

Posted by:  Sure S. Log
Topics: FEHA Work restrictions Temporary Disability Modified Work Interactive Process

Temporary disability (TD) benefits serve as wage replacement during the period an injured worker is healing from an industrial injury. An employer's obligation to pay TD benefits ceases when such replacement income is no longer needed. The obligation to pay TD benefits ends when the worker returns to work, is deemed able to return to work or when the worker's condition achieves permanent and stationary status.

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