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Permanant Disability

“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 My recommendation is to argue that Kite is no longer valid law on which the WCAB may support a decision and neither is any case which cites Kite or its progeny for its basis.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.

Dynamex or Borello: Prepare Your Umbrella for Both Storms

if the workers’ compensation system ultimately adopts the abbreviated, three-element “ABC” test from the California Supreme Court’s wage order decision in Dynamex Operations West, Inc. v. Superior Court (2018), 4 Cal. 5th 903, 83 Cal. Comp. Cases 817, the presumption may become more difficult to rebut. Conciseness is attractive; but Dynamex on early analysis requires far less careful weighing of interlocking factors proffered by defendants to rebut the presumption of employment relationship.

HOW TO AVOID A “SNATCH DEFEAT FROM THE JAWS OF VICTORY”

It is not enough for a doctor to simply assign a percentage of non-industrial apportionment, as was the case in Moreno. If you are in receipt of a report with a similar conclusory opinion on apportionment, do not assume that such opinion will be approved by a judge in determining an applicant’s permanent disability. Recall that it is the defendant’s burden to prove that apportionment is supported by substantial medical evidence. There are options that must be undertaken prior to settling in order for the opinion to hold up in court.

Impairments For Related Body Parts That Result In A Synergistic Effect” May Be Added Rather Than Combined

Applicant, parole officer, alleged injury to multiple body parts including gastroesophageal reflux disease (GERD), irritable bowel syndrome (IBS), psyche and spine during the period February 1, 1998 through February 22, 2011. Following trial, the Workers’ Compensation Judge made an award of 93% permanent disability, after apportionment. The award was based on reports from Agreed Medical Examiners in internal medicine and orthopedics. In addressing the internal medicine issues, the Workers’ Compensation Judge added the impairments for GERD and IBS rather than using the combined values chart.

The Ongoing Battle for the Add-On Disability

Notwithstanding the exceptions, it would appear that Labor Code §4660.1(c) has achieved its intended purpose by severely reducing the number of “compensable consequence” sleep, sex and psyche claims since its enactment in 2013.

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