| NEWSLETTER VOLUME V
IMPORTANT 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:
Signature Fruit Co. v. WCAB (Ochoa) (2006),
142 Cal.App.4th 790
71 Cal. Comp. Cas 1044, 142 Cal. App. 4th 790, 47 Cal. Rptr. 3d 878
The Court of Appeal, Fifth District, in a Published Opinion, held that where the undisputed evidence provides that an applicant's earning are obtained only during seasonal work for a defined period of every year, the applicant is entitled to temporary disability benefits during only the period of the year they would have worked, but for the industrial injury. |
Yeager Construction v. WCAB (Gatten) (2006)
71 Cal. Comp. Cas 1687, 145 Cal. App. 4th 922, 52 Cal. Rptr. 3d 133
The Court of Appeal, Fourth District, Certified for Publication an opinion wherein the findings of the WCAB that apportionment to pre-existing spinal pathology was inappropriate were reversed. In reversing the WCAB, the Fourth District Court of Appeal held that the opinion of the appointed IME that the applicant had pre-existing asymptomatic arthritic changes in his spine was substantial evidence to support a finding of apportionment when the Dr. referenced an MRI taken within a year of the applicant's industrial injury and noted the changes. Further, the applicant had complained of occasional back pain prior to the injury and sought some minimal medical treatment. |
Federal Express v. WCAB (Uhlik) (2006)
71 Cal. Comp. Cas 1703 [Unpublished]
The Fifth District Court of Appeal, in an Unpublished Opinion, held that the statute of limitations for filing a workers' compensation claim was tolled where the applicant had been feeling pain in her low back from mid-2001 until December 26, 2001 when her pain became severe. On December 26, 2001, the applicant left work after advising her supervisor she was unable to continue. The applicant received state disability and private long and short term disability benefits while receiving medical treatment for her back. Shortly after her private disability expired the applicant filed a workers' compensation claim in May of 2004. Defendant asserted that the claim was barred by the applicable statute of limitations. The applicant was found to have sustained an industrial injury and awarded benefits.
The WCJ was upheld by the WCAB and defendant filed a Petition for Writ of Review. In upholding the WCAB, the Fifth District Court of Appeal reasoned that the applicant had never been provided with proper forms by her employer (including a claim form) who, by way of the applicant's private disability and extended medical insurance had notice of her injury. Due to the failure of the employer to provide the proper forms to the applicant, the Court held that the statute of limitations was tolled and the claim not barred. |
Valley Behavioral Health Network, et al. v. WCAB
(Cherry) (2006)
71 Cal. Comp. Cas 1774 [Unpublished]
The Fifth District Court of Appeal, in an unpublished opinion, upheld a WCAB opinion finding that the applicant had sustained new and further disability requiring medical treatment for her entire right upper extremity following an initial stipulated award for injury only to her right wrist. The Court reasoned that though the applicant did complain of pain in her right shoulder following her initial injury, there was no evidence of disability to the right shoulder or need for medical treatment until the time the petition to re-open was filed. Based upon these findings, the Court found the petition to re-open was appropriately awarded by the WCAB. |
SCIF v. WCAB (Echeverria) (2007)
72 Cal. Comp. Cas 33 [Unpublished]
The First District Court of Appeal, in an unpublished opinion, held that a letter signed by a physician and dated December 15, 2004 which included a statement that the applicant would have permanent disability was not substantial evidence to establish the existence of permanent disability prior to January 1, 2005. The Court reasoned that even when considered in light of the physician's recent narrative reports, the physician did not attempt to establish how the reporting established the existence of permanent disability and, thus, did not meet the burden of substantial evidence. |
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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