California Workers Compensation System

California Workers Compensation System

Burden Of Proof Regarding Overlap Between Injuries

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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.

How Does California Workers’ Compensation Work?

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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.

Social Media Posts

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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

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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.

Reynolds Notice

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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

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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.

Neutral Risk Doctrine

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Regarding Neutral Risk Doctrine

Case law has divided criminal acts and violence which cause injury to an employee into three categories: (a) purely personal risks; (b) mixed or industrial risks, and (c) neutral risks. Both neutral and mixed risks result in industrial caused injuries or death claims. If the injury is shown to be caused by a purely personal motive, then the injury is not industrial. For instance, a marital dispute merely played out at the place of employment as a stage.

Willful Misconduct

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The Supreme Court has defined willful misconduct as necessarily involving deliberate, intentional, or wanton conduct in doing or omitting to perform acts, with knowledge or appreciation of the fact, on the part of the culpable person, that danger is likely to result therefrom. Willful misconduct means something different from and more than negligence, however gross. The term “serious and willful misconduct” is described as being something much more than mere negligence, or even gross or culpable negligence and as involving conduct of a quasi criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of its possible consequences. Mercer v. Fraser 18 CCC 3.