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Worker’s Comp Fraud

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Insurance Code Section 1871.5 states:

“Any person convicted of worker’s compensation fraud pursuant to Section 1871.4 or Section 550 of the Penal Code shall be ineligible to receive or retain may compensation where that compensation was owed or received as a result of a violation of Section 1871.4 or Section 550 of the Penal Code for which the recipient of the compensation was convicted.”

Tensfeldt v WCAB (1998) 66 Cal. App. 4th 116, 77 Cal. Rptr. 2d 691, 63 CCC 973 sets forth a three pronged test for determining whether a worker is entitled to receive or retain worker’s compensation benefits after a worker’s compensation insurance fraud conviction. An individual may retain or receive compensation benefits after a fraud conviction if there is (1) an actual, otherwise compensable, industrial injury ; (2) substantial medical evidence supporting an award of compensation not stemming from the fraudulent misrepresentation for which the claimant was convicted; (3) that claimant’s credibility is not so destroyed as to make claimant unbelievable concerning any disputed issue in the underlying compensation case. P.125-126.

The court held that an individual is barred from retaining or receiving any compensation which stems directly from the fraudulent misrepresentation.

Sleep Impairment

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Can result in poor coping ability, poor concentration and focus, and poor mental functioning during the day. Mental function, concentration, focus and attention is also diminished by pain and side effects of medication.

Vocational Expert Evaluation

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Where the applicant has placed the correctness of the DFEC adjustment in issue and hired a vocational expert who has interviewed him, we believe that evaluation of applicant by defendant’s vocational expert is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions of the worker’s compensation laws, as required by Labor Code section 5708.

Southern Calif Edison v. WCAB (2013) 78 CCC 825

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Chronic Regional Pain Syndrome-look for non restorative sleep, chronic fatigue, depression, anxiety, headaches, temporomadibular joint syndrome, cognitive dysfunction, irritable bowel syndrome, decreased libido, vertiginous symptoms and hypersensitivity to environmental stimuli.
Chapter 18- chronic fatigue chapter 13 daytime alertness problems and emotional complaints chapter 14

Responeat Superior Doctrine

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Under the theory of respondeat superior, an employer is vicariously liable for an employee’s torts committed within the scope of employment.