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Vocational Evidence and LC 4660.1(c)

Posted by:  Sure S. Log
Topics: Ogilvie LC 4660.1(c) catastrophic injury vocational expert psychiatric injury permanent total disability

For injuries on or after Jan. 1, 2013, Labor Code 4660.1(c)(1) states that "the impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury shall not increase." LC 4660.1(c)(2)(A)(B), however, specifies two exceptions allowing an increased impairment rating for a psychiatric disorder. An employee may receive such a rating by proving that the injury resulted from either: (1) being a victim of a violent act or direct exposure to a significant violent act; or (2) a catastrophic injury. Moreover, the WCAB continues to hold that the permanent disability schedule under LC 4660.1 can be rebutted by vocational evidence. How should LC 4660.1(c)(1) be applied if the employee is unable to return to the open labor market as a result of his or her physical injury in addition to a compensable consequence psychological disorder? The issue was addressed recently in the case of Schaan v. Jerry Thompson...

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WCAB Holds That Chronic Traumatic Encephalopathy (CTE) Is an Insidious Progressive Disease

Posted by:  Sure S. Log
Topics: LC 5410 Insidious Disease CTE

Generally, the Workers' Compensation Appeals Board's jurisdiction to award new and further disability is limited to five years from the date of injury. Labor Code 5410 states, "Nothing in this chapter shall bar the right of any injured worker to institute proceedings for the collection of compensation within five years after the date of the injury upon the ground that the original injury has caused new and further disability." LC 5804 states, "No award of compensation shall be rescinded, altered, or amended after five years from the date of injury ..." unless there is a timely filed petition. The appeals board generally may not reserve jurisdiction to award additional disability more than five years from the date of injury. (Hartsuiker v. WCAB (1993) 12 Cal. App. 4th 209.)

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WCAB's Denial of 132a Claim Does Not Bar Civil Claim Under FEHA

Posted by:  Sure S. Log
Topics: 132a res judicata Fair Employment and Housing Act FEHA collateral estoppel

Generally, workers' compensation is the exclusive remedy for injuries occurring at the workplace. A worker normally must pursue claims for work-related injuries before the Workers' Compensation Appeals Board (WCAB) rather than sue the employer in civil court. Nevertheless, certain types of intentional conduct take the employer beyond the boundaries of the compensation bargain. In City of Moorpark v. Superior Court of Ventura County (Dillon) (1998) 18 Cal.4th 1143, the California Supreme Court held that discrimination falls outside of the compensation bargain. It concluded that Labor Code 132a does not provide the exclusive remedy for discrimination based on a work-related injury.

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Analysis of Senate Bill 1127

Posted by:  Sure S. Log
Topics: Red Alerts California Laws Statutory Presumption 240 Weeks

Yesterday we issued a summary of workers' compensation bills recently signed into law. The most significant is SB 1127, which is outlined in depth here. A webinar will be scheduled shortly to delve into these changes and their implications. On Sept. 29, 2022, Gov. Gavin Newsom signed into law SB 1127. The bill makes several changes to coverage by a statutory presumption of compensability. As explained in the Assembly Floor Analysis, "presumptions of compensability have been adopted, some many decades ago, to reflect unique circumstances where injuries or illnesses appear to logically be work related, but it is difficult for the injured worker to prove it is work related."[1]

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Receipt of a Request for Authorization by a Defense Attorney

Posted by:  Sure S. Log
Topics: Utilization Review RFA defense

Labor Code § 4600(g)(2)(A) states, "Unless otherwise indicated in this section, a physician providing treatment under Section 4600 shall send any request for authorization for medical treatment, with supporting documentation, to the claims administrator for the employer, insurer, or other entity according to rules adopted by the administrative director." The statute directs that a request for authorization for medical treatment (RFA) must be sent to a claims administrator, rather than somewhere else, although the claims administrator may designate where the RFA is sent (CCR 9792.6.1(t)(3)). That language was added effective Jan. 1, 2017, by AB 2503. Pursuant to the Senate Floor Analysis, "[I]t is often difficult for health care providers in the workers' compensation system to obtain timely approval for treatment of injured workers because it is difficult to know where to send RFAs." So, the bill was "intended to clarify where the RFA and related materials must be sent, so that the...

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Liability for Cumulative Trauma Injury Under LC 5500.5

Posted by:  Sure S. Log
Topics: cumulative trauma LC 5412 CT injury multiple employers date of injury LC 5500.5 compensable disability

Multiple employers or insurers can be liable for a cumulative trauma (CT) injury, and it's common for employers or insurers to dispute whether and how much liability they have for such an injury. Pursuant to Labor Code 5500.5(a), liability for a CT injury is limited to employers who employed the worker during the one-year period immediately preceding the date of injury (LC 5412), or the last date of injurious exposure, whichever occurs first. So there's no single point from which the liability period is determined. It could be based on either the date of injury under LC 5412 or the last date of injurious exposure. Furthermore, the date of injury under LC 5412 requires the concurrence of: (1) compensable disability; and (2) knowledge of industrial causation. The liability period for a CT injury is a frequent source of contention.

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DWC Announces In-Person Walk-Throughs Starting Sept. 6 2022

Posted by:  Sure S. Log
Topics: Emergency Rules DWC

On August 9, 2022, the Division of Workers' Compensation (DWC) announced that all DWC district offices except Eureka will accept in-person walk-through documents beginning September 6, 2022, pursuant to CCR 10789. Eureka is permanently a virtual office and walk-through documents should be brought to the DWC Santa Rosa district office. Additionally, effective September 6, 2022, DWC will not accept virtual walk-throughs in the Lifesize platform. Virtual walk-throughs were put in place due to the COVID-19 pandemic in 2021. DWC will only accept walk-through documents in-person. Walk-throughs will be available Monday through Friday, except on holidays when the Division's offices are closed.

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Time Extensions for Petitions for Reconsideration

Posted by:  Sure S. Log
Topics: Recon Time Petition Reconsideration

Per Labor Code § 5903, a petition for reconsideration may be filed "[a]t any time within 20 days after the service of any final order, decision, or award made and filed by the appeals board or a workers' compensation judge." Althoug LC 5903 establishes a basic 20-day time period for filing a petition for reconsideration, most parties are given longer. That's because the California Code of Regulations § 10605 extends the time to act following service of a document. It explains that if a document is served by mail, fax, email or any method other than personal service, the period of time for exercising any right or duty to act or respond will be extended:

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Special Employment and Union Workers

Posted by:  Sure S. Log
Topics: Special Employer Union Employee LC 11663

When an employer lends an employee to another employer and both have the right to exercise certain powers of control over the worker, a "special employment" relationship arises. The employee can be held to have two employers –– the original "general employer" and the second "special employer." If a special employment relationship is found to exist, both employers are jointly and severally liable for any injuries to the employee. A special employment relationship commonly is formed when a temporary employment agency or labor contractor sends a worker to another company to perform work. But it's not limited to those situations. Generally, in determining the existence of a special employment relationship, the right of control is the paramount factor. But it's not the exclusive factor and it's not determinative of the issue. The courts will look at multiple factors to determine whether special employment exists.

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