Labor Code Section 4653: If the injury causes temporary total disability, the disability payment is two-thirds of the average weekly earnings during the period of such disability, consideration being given to the ability of the injured employee to compete in an open labor market.
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
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.
In Regard To Social Media Posts.
Everything a person puts on a social media outlet, such as twitter or facebook, is discoverable by the defendants in a workers comp case. Assume that you are talking to the defense attorney when posting. Also, removing information which has already been posted may result in substantial sanctions against the person who posted the information. An attorney cannot recommend that an applicant remove information already disseminated. I would never tell a client to make any alterations or to remove any information already posted. However, to never post is a positive. Why tell the world about all your activities and opinions. Remember, the National Spy Agency is eavesdropping
Defense Attorneys are now routinely requesting social media posts from injured workers or researching that information for damaging or felonious information. Assume your pictures and posts will be presented to a judge!
Workers Comp Evidence Requirements.
Labor Code Section 5502(e)(3) and 8 Cal.Code Reg. Section 10353(c) require the parties to list all exhibits on a pre-trial exhibit sheet. But neither section requires a party to list or raise any objections to the admissibility of such exhibits prior to trial. Rodriquez v. WCAB 75 CCC 919.
Failure to list medical reports, documents or witnesses precludes the party from using that evidence at trial.
In Regards To Reynolds Notice
Where the employer has been notified of applicant’s industrial injury, the defendant’s are required to send applicant adequate notice of the time within which he or she has to file an application for Adjudication to toll the statute of limitations. Until the notice is sent, the defendants are unable to rely on the statute to defend against the claim.
Cost of Living Adjustment for Life Pension Injuries
Labor Code Section 4659(c) states: For injuries occurring on or after January 1, 2003, an employee who becomes entitled to receive a life pension or total permanent disability indemnity shall have that payment increased annually commencing on January 1, 2004 and each January 1 thereafter, by an amount equal to the percentage increase in the “state average weekly wage” as compared to the prior year.
Defendants Denial Of Medical Treatment Based On Opinion Of QME(Qualified Medical Examiner)
A defendant can deny medical treatment to an injured worker based on the opinion of a QME(Qualified Medical Examiner), even if the primary treating doctor recommends such medical treatment.
In Regards To The Statute Of Limitations Cumulative Trauma Injury
Date of injury in cases of cumulative trauma injuries is date on which employee first suffered disability and knew, or should have known, that such disability was caused by employment. Statute of limitations is one year thereafter.