California Workers Comp Blog

California Workers Comp Blog

Civil Action Against A Co Worker

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In regards to a civil action against a co worker

Labor Code Section 3601(a) provides that worker’s compensation benefits are the sole remedy for a work injury and that a civil claim cannot be pursued against the co-worker. Co-employees acting within the scope of their employment are generally immunized from liability for injuries covered by the workers’ compensation law.

Date of Injury – Cumulative Trauma Injury

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In Regards To A Date of Injury – Cumulative Trauma Injury

The date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence, should have known that such disability was caused by his present or prior employment. See Labor Code Section 5412.

QME Opinion on Permanent Disability

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Regarding A QME opinion on Permanent Disability

The opinion of a QME (Qualified Medical Examiner) is not controlling on the issue of permanent disability. A WCJ (Workers Compensation Judge) can follow the opinion of a PTD (Primary Treating Doctor) or an AME (Agreed Medical Examiner) in deciding the level of permanent disability or the issue of apportionment based on which opinion constitutes substantial medical evidence.

For a medical opinion on apportionment to constitute substantial evidence, a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on adequate examination and history, and it must set forth reasoning in support of its conclusions.

Tolling of the Statute of Limitations

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In regards to Tolling of the Statute of Limitations

Absence of notice to employee of rights under the labor code when employer knew or should have known of injury toll statute of limitations Reynolds case.

Employers failure to post mandatory notice regarding employees workers compensation rights pursuant to labor code section 3550 may toll the statute of limitations.

The statute of limitations is very detailed and complicated the factual situation has a very substantial effect on how the statute is applied.

Commercial Traveler Rule

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Re: Commercial Traveler Rule

In the case of a commercial traveler, workers compensation coverage applies to the travel itself and also to other aspects of the trip reasonably necessary for the sustenance, comfort, and safety of the employee. The test is whether the activity during the injury is one that an employer might reasonably expect to be incident to its requirement that an employee spend time away from home. As the Court of Appeal recently observed, an employee away on business can hardly be expected to remain holed up in his hotel room.

In light of the liberal construction of the commercial traveler rule, courts have held that leisure time activity incident to an employer’s requirement that an employee be away from his home base for an extended period of time is within the course of employment.

Injured Employee Offered Regular-Modified-Alternative Work

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In regards to an injured employee offered regular, modified or alternative work

If an employer has more than 50 employees and within 60 days of a disability becoming permanent and stationary the employer offers the injured worker regular work, modified work, or alternative work, the permanent disability will be decreased by 15% if the employer fails to make this offer the permanent disability will be increased by 15%.

The meaning of regular work, modified work, alternative work is defined in labor code section 4658.1.

Medical Provider Network

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Medical Provider Networks – Access Standards

On appeal the workers compensation appeals board found that although defendants medical provider network did not provide a minimum of 3 physicians within 15 miles or 30 minutes of applicants residence that the network was in compliance because it had at least 3 doctors located within 15 miles of applicants work place. (8 Cal. Code Reg §9767.5(b))