| NEWSLETTER VOLUME III
MPORTANT REMINDER:
Pursuant to Labor Code Section 4453(a)(10), and effective January 1, 2007, the new minimum temporary disability rate in effect will be $132.25. The new maximum temporary disability rate will be increased to $881.66.
All matters should be reviewed to ensure that adjustments are made in appropriate cases effective January 1, 2007. |
CASE LAW UPDATE:
Knight v. UPS
71 Cal. Comp. Cas 1423 [Unpublished]
In an En Banc decision, the Workers' Compensation Appeals Board held that the failure to provide required Medical Provider Network notices to the applicant will subject the employer or insurer to liability for reasonable self-procured medical treatment obtained by the applicant. |
State Compensation Insurance Fund v. WCAB (Sandhagen)
[Cite pending]
In a decision certified for publication, the Third District Court of Appeal held that an untimely obtained Utilization Review report could not later be used as evidence to support the denial of treatment. The Court further held that a Utilization Review report was not necessary to form the basis of a treatment dispute under Labor Code Section 4062, thus allowing the defendant to initiate the AME/QME dispute resolution process without reliance upon a Utilization Review report. |
Matea v. WCAB, The Home Depot
71 Cal. Comp. Cas 1522, 144 Cal. App. 4th 1435, 51 Cal. Rptr. 3d 314
In a decision Certified for Publication, the Sixth District Court of Appeal held that lumber falling off of a rack and injuring an employee's leg constituted a 'sudden and extraordinary event of employment' sufficient to overcome the bar on psychiatric injury claims for employees who have been employed for less than six months as set forth in Labor Code Section 3208.3(d).
In holding that the above constituted a 'sudden and extraordinary event', the court looked to Webster's Third International Dictionary to define 'sudden' as "happening without previous notice or with very brief notice : coming or occurring unexpectedly : not foreseen or prepared for" and 'extraordinary' as "going beyond what is usual, regular, common, or customary;" and "having little or no precedent and usu[ally] totally unexpected." The Court continued, opining that events such as gas main explosions and work place violence (noted by prior courts as examples of sudden and extraordinary events) were but examples of events that could fall within the definition.
Finally, the Court did reaffirm that the burden of proof was upon the applicant to establish that the event was 'sudden and extraordinary'
[The above opinion represents a substantial departure from prior WCAB and Appellate decisions addressing the 'sudden and extraordinary' requirement set forth in Labor Code Section 3208.3(d) by seeming to substantially lessen the required threshold.] |
Gomez v. WCAB
[Cite pending]
In an Unpublished decision, the Fifth District Court of Appeals held that the WCAB does not have jurisdiction to Award temporary disability benefits that begin more than five years following an industrial injury. In Gomez, the applicant had filed a timely petition to reopen his claim, though there was no medical opinion finding temporary disability until five years and three months after his initial date of injury. The Court held that evidence of the new and further disability must exist within the five year period following the initial date of injury and, as the evidence in this matter did not arise until after this time, the claim for temporary disability benefits was barred.
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Six Flags, Inc. v. WCAB
71 Cal. Comp. Cas 1759, 145 Cal. App. 4th 91, 51 Cal. Rptr. 3d 377
In an opinion Certified for Publication, the Second District Court of Appeal held that the payment of Death Benefits to the estate of an employee without dependents who died due to industrial injury is unconstitutional.
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Again, we thank you for your interest in FS&K Work Comp News 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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