Labor Code Section 4558 provides an exception to the exclusive remedy of worker’s compensation and allows a civil claim when employer has failed to install point of operation guard on power press or employer has removed such guard.
Labor Code Section 4062.5 requires that a Qualified Medical Examiner’s ( QME ) report be prepared and submitted within 30 days of the evaluation of the applicant.
Failure to serve the report within 30 days of the evaluation allows either party to object in writing and request replacement of the QME.
Employer Liability – Labor Code Section 4664(a).
An employer is only liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.
A Person Performing Services For Another Is Presumed To Be An Employee.
Any person rendering service for another is presumed to be an employee under Labor Code Section 3357 unless it is proven otherwise by the party claiming that the person is not an employee.
Whether a person is an independent contractor will be based on various facts surrounding the relationship with the “employer.” (1) The ability to control an individual’s work; (2) the worker’s opportunity for profit or loss; (3) Whether the service rendered required a special skill; (4) The degree of permanence of the working relationship; (5) Whether the service rendered was an integral part of the alleged employer’s business; (6) Which party provides the tools and materials used at the job; (7) How the worker is paid for his services.
Medically Required Equipment.
In Green v. WCAB, 74 CCC 998, the Court held that an applicant was not required to relocate to another home at defendant’s request to avoid cost of installing medically required elevator and defendant was required to construct and install elevator in applicant’s home.
In Regards To Total Permanent Disability
Regents of the University of California V WCAB (2011) 76 CCC 1237. Applicant found to be Permanently Totally Disabled(PTD) based on her inability to engage in gainful employment in the open labor market. Of significance was the judge’s determination that no apportionment to prior injuries was warranted because apportionment is not appropriate when PTD is based on the inability to compete in the open labor market
Multiple Injuries To The Same Body Part.
Pursuant to SB 899, and the decisions in Brodie and Benson, successive injuries to the same body part that become permanent and stationary at the same time can no longer be rated as a single injury. Rather, successive injuries must be rated separately, except when physicians cannot parcel out the causation of disability. See Benson v. WCAB (2009) 74 CCC 113.
In Regards To Burden Of Proof Regarding Overlap Between Injuries
The defendant bears the burden of proving the extent of overlap, if any, between the prior and current permanent disability. It is the defendant’s burden to establish the existence of a prior award and to establish the extent of overlap between that prior award and applicant’s current permanent disability.
Worker’s Compensation benefits are all statutory benefits set forth in the California Labor Code. Anybody performing services for another will be covered for an on the job injury, as long as the injury arose out of and occurred during the course of employment. The benefits are essentially medical treatment, temporary disability, permanent disability and a very inadequate voucher. Worker’s Comp is very different than personal injury laws that are pursued through the superior court. Under the current system, the employer has the right to designate the doctors from whom the injured worker must treat. Sweet, right? Every time we get a “reform” legislative change, the insurance industry gets more control over the system. For instance, recent changes to the laws reduced temporary disability payments to a maximum of two years. Ridiculous;but true.