Structured Settlement Agreements

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RE: Structured Settlement Agreements

It is possible to settle a worker’s comp case pursuant to a structured settlement agreement. It is frequently used when the applicant has suffered substantial permanent disability. The settlement often consists of a lump sum payment coupled with a life pension, paid weekly or monthly. Usually, medicare requires that there be a medical set aside agreement. The amount to be set aside for medicare is established by medicare after they have reviewed all medical reports pertaining to applicants injuries. Normally the applicant opens a checking account where the medicare funds are deposited and used only to pay for applicant’s future medical treatment for his or her industrial injuries. The value of the structure is based on the present value of applicant’s life payments for permanent disability and future medical care. Usually the applicant’s attorney will employ a structured settlement expert to help evaluate the case and to work with the defendant’s structured settlement broker.Structured settlements can be of great value to the injured worker when they are fairly valued and desirable to the applicant.

Psychiatric Permanent Disability 6 Month Rule

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Regarding Psychiatric Permanent Disability 6 Month Rule

Labor Code Section 3208 generally bars claims of psychiatric injury if the applicant was employed less than six months. Exception “sudden and extraordinary employment condition.”

Predominant cause requirement in psychiatric permanent disability

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In regards to a predominant cause requirement in psychiatric permanent disability

In order for an psychiatric injury to be compensable the employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury. Predominant means that the actual events of employment account for greater than 50% of a psychiatric disability/injury.

Date of Injury – Cumulative Trauma Injury

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In Regards To A Date of Injury – Cumulative Trauma Injury

The date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence, should have known that such disability was caused by his present or prior employment. See Labor Code Section 5412.

QME Opinion on Permanent Disability

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Regarding A QME opinion on Permanent Disability

The opinion of a QME (Qualified Medical Examiner) is not controlling on the issue of permanent disability. A WCJ (Workers Compensation Judge) can follow the opinion of a PTD (Primary Treating Doctor) or an AME (Agreed Medical Examiner) in deciding the level of permanent disability or the issue of apportionment based on which opinion constitutes substantial medical evidence.

For a medical opinion on apportionment to constitute substantial evidence, a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on adequate examination and history, and it must set forth reasoning in support of its conclusions.

Commercial Traveler Rule

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Re: Commercial Traveler Rule

In the case of a commercial traveler, 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. The test is whether the activity during the injury is one that an employer might reasonably expect to be incident to its requirement that an employee spend time away from home. As the Court of Appeal recently observed, an employee away on business can hardly be expected to remain holed up in his hotel room.

In light of the liberal construction of the commercial traveler rule, courts have held that leisure time activity incident to an employer’s requirement that an employee be away from his home base for an extended period of time is within the course of employment.

Temporary Total Disability

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In the case of Zinke v. WCAB January, 2013 The WCAB limited the applicant to 104 weeks of temporary disability even if the applicant showed that the defendants delayed medical treatment which was not sufficient to establish equitable estoppel or totaling of the relevant time period so as to prevent defendant from asserting the 104 week limit on temporary disability payments.