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Case Briefs

“And she’ll have fun, fun, fun till her daddy takes the T-bird away”

Perhaps all of us can take a step back from the crazy volume of paper, phone calls and email that we
receive each day and appreciate that we truly are part of a larger picture and that performing our roles
competently and accountably can positively touch individual lives as well as our shared society as a
whole.

“CATASTROPHIC INJURY” DEFINED…SOMEWHAT

The ultimately implication here is that whether a condition is “catastrophic” will now be placed into the hands of the fact finder, returning the medical questions to the jurisdiction of the WCAB and outside of the hands of the medical professionals, and more likely than not, this will lead to decisions that are not even across the board, which goes completely contrary to the intent of the legislature when drafting SB 863.

“When the walls come tumblin’ down” – The Case of Applied Materials and the Effect of Treater Misconduct.

The Applied Materials case is a history of worker’s compensation theory and application since 1983 starting with Le Beof, then Western Growers and going through Hikida and resting with Fitzpatrick. The bottom line is that the system failed this injured worker by having an unprofessional physician handle the treatment for this applicant; the rest is left for history.

A Bold Strategy to Avoid Adding of Disabilities

Although the statements made in the Fitzpatrick footnote are dicta, clearly the Third District Court of Appeal expressed significant concerns with the arguments made by the WCAB itself in favor of the theory by which it justifies adding disabilities instead of using the Combined Values Table. My recommendation is to argue that Kite is no longer valid law on which the WCAB may support a decision and neither is any case which cites Kite or its progeny for its basis.

A Vision of Apportionment

As such, the Panel determined that the section refers to the totality of the character of the disability, not the totality of causation of or liability for that disability.

A VOUCHER IN EVERY POT

Based on this decision, a Workers’ Compensation Judge has the exclusive jurisdiction to resolve disputes over Vouchers. More importantly, decision clarifies that an employer must make a “bona fide” offer of regular, modified, or alternative work to avoid liability for an Voucher, even to an inmate who had been released from his position previously held in prison. The inability to offer employment does not absolve an employer of the obligation to make a “bona fide” offer of employment.