California Workers Comp Blog

California Workers Comp Blog

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.

Medical Malpractice Statute

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Medical Malpractice Statute.

Code of Civil Procedure Section 340.5 provides that “In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”

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!

Ex Parte Communication With AME Or QME

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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.


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A deposition is a person’s testimony under oath. It is subject to the penalty of perjury. That means that the deponent must testify truthfully as to any and all issues which are material to the lawsuit or litigation. In a worker’s comp case it is absolutely necessary to disclose any and all prior injury claims or accidents.
Since the deposition is a discovery tool, the defendants have the right to inquire as to not only relevant facts, but also any facts which might lead to the discovery of relevant information. A deponent should never volunteer information at a deposition, but only answer a question that is posed. Never assume that the friendly attorney asking you questions is your friend, or has sympathy toward your case. Honey just works better than vinegar. Watch out. . .

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.

Untimely Medical Reports

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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.

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.