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Credit for Third-Party Recovery

Posted by:  Sure S. Log
Topics: credit Third party third-party settlement petition for credit third-party recovery civil claim negligence burden of proof

When an employee is injured during the course of employment due to the negligence of a third party, the worker may file a workers' compensation claim against the employer and a civil claim for damages against the responsible third party. An employee is entitled to workers' compensation benefits regardless of whether he or she or the employer was negligent in causing the injury. In the civil courts, however, comparative negligence applies, "the fundamental purpose of which shall be to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties." (Li v. Yellow Cab Co. of California (1975) 13 Cal. 3d 804, 829.)

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Credit for Overpayment of Permanent Disability

Posted by:  Sure S. Log
Topics: Permanent Disability LC 4909 credit

It is not uncommon for a defendant to overpay permanent disability (PD) benefits. An overpayment might occur for several reasons. The defendant might not receive the physician's report declaring the applicant permanent and stationary until long after the evaluation. Or a defendant simply might make a mistake and pay more PD than required. Labor Code § 4909 states, "Any payment, allowance, or benefit received by the injured employee ... [that] was not then due and payable ... shall not, in the absence of any agreement, be an admission of liability for compensation on the part of the employer, but any such payment, allowance, or benefit may be taken into account by the appeals board in fixing the amount of the compensation to be paid." LC 4909 is widely understood as empowering the Workers' Compensation Appeals Board (WCAB) with discretion to grant or deny credit for overpayments.

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