California Workers Comp Blog

California Workers Comp Blog

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.

Business Necessity Defense To Wrongful Termination

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In Regards To Business Necessity Defense To Wrongful Termination

The California Supreme Court has held that to prove a wrongful termination an employee must demonstrate that the employer’s actions were detrimental and also that the employee was singled out for disadvantageous treatment as a result of his or her injury. If the employer can demonstrate that it’s actions were justified by the realities of doing business then no wrongful termination is proven.

New And Further Disability

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New and further disability is not defined in the statutes and judicial interpretation has not flushed out all its potential permutations. Thus, its meaning is not entirely clear. However, it has been judicially defined “to mean disability . . . resulting from some demonstrable change in an employee’ condition, including a gradual increase in disability. .” Nicky Blair’s Restaurant v. WCAB (1980) 45 CCC 876. See CHP v WCAB (2010) 75 CCC 1241.

Defendants Denial Of Medical Treatment

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Defendants Denial Of Medical Treatment Based On Opinion Of QME(Qualified Medical Examiner)

A defendant can deny medical treatment to an injured worker based on the opinion of a QME(Qualified Medical Examiner), even if the primary treating doctor recommends such medical treatment.