Tag Permanent Disability

Tag Permanent Disability

100% Total Permanent Disability

Tags: , , Proceedings

The Limited v WCAB (2012) 77 CCC 1003
It has long been recognized that an injured worker may be found to be 100% permanently disabled when the effects of the industrial injury cause a loss of future earning capacity because the employee is not amendable to vocational rehabilitation and is unable to compete in the open competitive labor market. LeBoeuf v WCAB. As the court wrote in LeBoeuf, permanent disability is the irreversible residual of a work related injury that causes impairment in earning capacity, impairment in the normal use of a member or a handicap in the open labor market. An injured worker may be totally permanently disabled even if he or she may be able to perform some limited work in a sheltered and protected work environment. Sparteck Plastics v WCAB (1998) 64 CCC 124 Garden Grove Unified School Dist. v WCAB (2010) 75 CCC 521. (page 1006).
In this case the court found that it makes no difference that the applicant might be able to perform limited work in a sheltered environment because such work is not generally available in the open labor market.

Permanent Disability: Presumption of Total Disability

Tags: , Labor Code

Labor Code Section 4662 Any of the following permanent disabilities shall be conclusively presumed to be total in character:
a Loss of both eyes or the sight thereof;
b Loss of both hands or the use thereof;
c An injury resulting in a practically total paralysis;
d An injury to the brain resulting in incurable mental incapacity or insanity.
In all other cases, permanent total disability shall be determined in accordance with the fact.

Synergistic Effect of Injury

Tags: , , Injuries, Medical Treatment No comments

In determining the degree of Permanent Disability the medical examiner may consider the synergistic effect of applicant’s injury, any surgeries, whether further surgery would be beneficial, the effects of pain medication and the conclusion of a vocational rehabilitation expert that the applicant is not feasible for vocational retraining and has no future earning capacity, and is thus, permanently totally disabled.

Burden Of Proof Regarding Overlap Between Injuries

Tags: , , , , , Benefits, California Workers Compensation System, Injuries No comments

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.

Structured Settlement Agreements

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RE: Structured Settlement Agreements

It is possible to settle a worker’s comp case pursuant to a structured settlement agreement. It is frequently used when the applicant has suffered substantial permanent disability. The settlement often consists of a lump sum payment coupled with a life pension, paid weekly or monthly. Usually, medicare requires that there be a medical set aside agreement. The amount to be set aside for medicare is established by medicare after they have reviewed all medical reports pertaining to applicants injuries. Normally the applicant opens a checking account where the medicare funds are deposited and used only to pay for applicant’s future medical treatment for his or her industrial injuries. The value of the structure is based on the present value of applicant’s life payments for permanent disability and future medical care. Usually the applicant’s attorney will employ a structured settlement expert to help evaluate the case and to work with the defendant’s structured settlement broker.Structured settlements can be of great value to the injured worker when they are fairly valued and desirable to the applicant.

Petition To Reopen For New And Further Disability

Tags: , , , , , , Injuries, Labor Code, Medical Treatment No comments

Regarding A Petition To Reopen For New And Further Disability

Labor Code Section 5410 provides that a party can petition to reopen within 5 years of the date of injury upon the ground that the original injury has caused new and further disability . . . The new and further disability must be based on the body parts that were part of the original award or that were compensable consequences of injuries to the original body parts contained in the original award.

A petition to reopen for new and further disability requires that there be a causal connection between the alleged “new and further disability” and the original industrial injury. Put another way, the new and further disability must be a result or an effect of the prior compensable injury. This causal connection may be in the way of further injury to the same body part or injury to a new body part as a compensable consequence of the original injury.

Predominant cause requirement in psychiatric permanent disability

Tags: , , , Benefits, Injuries, Medical Treatment No comments

In regards to a predominant cause requirement in psychiatric permanent disability

In order for an psychiatric injury to be compensable the employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury. Predominant means that the actual events of employment account for greater than 50% of a psychiatric disability/injury.

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.

Changes To Your Benefits Under Senate Bill 863

Tags: , , , , , , , , , , , , , , , , , Latest Legislative Reforms

The latest “reform” to California Workers’ Compensation legislation was signed into law on September 18, 2012 by Governor Jerry Brown. Senate Bill 863 is intended to increase benefits to injured workers (primarily Permanent Disability Benefits) and reduce costs for California employers. What is not entirely clear is how much those savings will be and how long it will take to realize those savings. The number of changes this bill brings to the Labor Code are vast and though it receives wide support from Insurance Companies and Employers, many of those changes may result in a loss of access to benefits and medical treatment for the injured worker.

Although it purports to increase Permanent Disability (PD) compensation, SB 863 would actually make it more difficult for many injured workers to qualify for the disability ratings necessary to receive the increased compensation. Prior to January 1, 2013, Labor Code Section 4650(b) required that PD payments begin within 14 days of the last payment of Temporary Disability, and be paid until a “reasonable estimate” of PD was paid. This often meant that PD payments would be made even after an injured worker returned to work and before there was a settlement in the case. As of January 1, 2013, for all dates of injury, the law now states that in some instances, PD advances will not be paid until there is a final settlement (Findings & Award or Stipulation) in the case.

Senate Bill 863

now states:

1. Permanent Disability “advances” DO NOT have to be made IF the employer has offered the injured worker a job paying at least 85% of his or her earnings at the time of injury,
2. OR the injured worker has obtained a job with another employer paying 100% or more of his or her earnings at the time of injury.

Permanent Disability will be paid only when there is a final settlement (Findings & Award or Stipulation), however, PD will be paid retroactively from the date of the end of Temporary Disability benefits, or from the time the injured worker is declared Permanent & Stationary (P&S) or Maximum Medical Improvement (MMI), whichever is earlier. This means that the injured worker will still receive PD, but will have to wait for a final settlement to be reached if he or she has returned to work.

SB 863 has also affected Supplemental Job Displacement Benefits (Vocational Re-Training Voucher). For dates of injury (DOI) on or after January 1, 2013, the maximum amount of the voucher will be $6,000.00, regardless of Permanent Disability Rating. The voucher can no longer be settled for a lump sum of cash. This is drastically different from the “old law” which allowed for voucher funds to be distributed based on percentage of Permanent Disability. For example; An injured worker with a DOI prior to January 1, 2013 and a PD Rating of 50% or higher would qualify for a Supplemental Job Displacement Voucher in the amount of $10,000.00 and the ability to settle the voucher for a lump cash sum.

Another big change to the legislation limits the use of a Vocational Expert as an Expert Witness.
The new law states that no live testimony from a Vocational Expert will be admissible, unless showing a good cause. It also goes on to state that only reports will be admissible if the expert certifies, under penalty of perjury, that his/her opinion is based on personal knowledge, experience, education and skills.