| NEWSLETTER VOLUME I
With the quickly evolving environment of Workers' Compensation law, it is our endeavor to provide you with fast, easy to read periodic updates on the changes that affect you most.
In each edition you will find snapshots of court opinions that have issued relating to Workers' Compensation issues, legislative changes, and other helpful information.
We thank you for your interest in receiving and reading FS&K Monthly and welcome your feedback at email@fskpublishing.net .
Sonoma State University v. WCAB (Hunton).
71 Cal. Comp. Cas 1059, 142 Cal. App. 4th 500; 48 Cal. Rptr. 3d 330
In a decision certified for publication, the First District Court of Appeals held that for purposes of establishing that events of employment were predominant as to all causes combined of a psychiatric injury, the entirety of the psychiatric condition must be considered as opposed to consideration of whether events of employment were the predominant cause of one of several psychiatric diagnosis. |
Brodie v. WCAB
[See News Flash May 3, 2007]
In a decision certified for publication, the First District Court of Appeals held that apportionment to a prior award of permanent disability pursuant to Labor Code section 4664, as enacted in SB 899, should be calculated by subtracting the dollar value of the prior percentage of permanent disability as calculated under the schedule in effect at the time of the subsequent injury, from the permanent disability value of the subsequent injury.
[The above is a slight departure from the recent holdings in Dykes and Nabors. In the Dykes and Nabors cases, the dollar value of the prior awards were to be deducted from the new disability using the dollar value of the permanent disability as it existed at the time of the prior award, not the value of the previous disability assessed using the schedule in effect at the time of the subsequent injury.] |
New United Motors Manufacturing, Inc. v. WCAB (Gallegos)
71 Cal. Comp. Cas 1037, 141 Cal. App. 4th 1533, 47 Cal. Rptr. 3d 200
In a decision certified for publication, the First District Court of Appeal held that the discovery of a delay in benefits under Labor Code section 5814 need not be by the defendant's 'own investigation'. Rather the discovery may be from any source, including an applicant's attorney, thus allowing the defendant to self-impose a ten percent penalty if done within 90 days of the discovery (regardless of source) and before an employee claims a penalty. |
Welcher v. WCAB; Strong v. WCAB; Lopez v. WCAB; Williams v. WCAB
[See News Flash May 3, 2007]
In four consolidated cases, the Third District Court of Appeal issued a decision disagreeing with the recent holdings by the Fifth District Court of Appeals in E & J Gallo Winery v. WCAB (2005) 134 Cal.App.4th 1536 and the First District Court of Appeals in Nabors v. WCAB (2006) 140 Cal.App.4th 217, by holding that apportionment should be determined by subtracting the percentage of permanent disability caused by factors other than the current industrial injury from the overall percentage of permanent disability, leaving the percentage of permanent disability caused by the current injury. In addition, the Court held that apportionment to overlapping disability from different body parts or regions is proper.
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Brasher v. Nationwide Studio Fund; and State Compensation Insurance Fund
72 Cal. Comp. Cas 229 [Unpublished]
In a significant panel decision addressing the interplay between spinal surgery second opinion and utilization review procedures, the WCAB held that the defendant has four options when presented with a request for spinal surgery by a treating physician. First, the defendant may simply authorize the surgery. Second, the defendant may object to the spinal surgery request and enter into the spinal surgery second opinion process within 10 days of receipt of the request via the filing of DWC Form 233 pursuant to Labor Code Section 4062(b). Third, defendant may submit the report to Utilization Review. Finally, the defendant may pursue the utilization review and spinal surgery second opinion procedures simultaneously. Of note, the WCAB specifically held that if an employer denies authorization for spinal surgery pursuant to a utilization review report, the applicant then has 10 days from receipt of the denial to object and initiate resolution pursuant to spinal surgery second opinion procedures under Labor Code Section 4062(b).
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Again, we thank you for your interest in FS&K Work Comp Times and look forward to keeping you informed on the Workers' Compensation issues that most affect you.
Sincerely,
The FSK Newsletter Team |
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