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.
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
Ex Parte Communication With AME Or QME.
Labor Code Section 5701 precludes a party from communicating with an Agreed Medical Evaluator(AME) or Qualified Medical Evaluator(QME) on an ex parte basis. Communications must be joint until an applicant is examined by the doctor. There are strict rules about any communication with the doctor after the exam. Applicant’s should never contact the doctor. They should speak with their attorney. A d irect contact by the applicant with the AME or QME will allow the defense attorney to replace the doctor if they wish.
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 Untimely Medical Reports
Labor Code Section 139.2(j)(1)(A) provides that reports from Agreed Medical Evaluator’s(AME) or Qualified Medical Evaluator’s(QME) must be submitted to the parties within 30 days. A party may object to a late report and the doctor will be removed as AME or QME as long as the objection occurs prior to the receipt of the report.
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.