Workers Compensation Case Law: Out of State Injuries

An industrial injury which occurs outside of the borders of California may be subject to California Law. Labor Code Section 3600.5 provides that the employee or his dependants are entitled to compensation where the employee, "has been hired or is regularly employed in the State and receives personal injury by accident arising out of the course of such employment outside of this State."

Workers' Comp Law: Definition Of Injury

The term injury is broadly defined by Labor Code Section 3208 to include any injury or disease arising out of employment.

There is two types of injuries generally:

1.) A specific injury occurring as the result of one incident or exposure

2.) A cumulative injury, occurring as repetitive mentally or traumatic activities extending over a period of time, the combined effect of which causes any disability or the need for treatment. Injury also includes disease or occupational disease caused by employment.

Post Termination Claims

For a lawyer to prevail on behalf of his client, the lawyer must establish that the claims filed after an employer has provided with a Notice of Termination or Layoff:

1.) The employer had notice of the injury prior to the Notice of Termination or Layoff.

2.) The employee's medical records existing to prior to the Notice of Termination or Layoff contained evidence of the injury.

3.) That the injury occurred after the date of Notice of Termination or Layoff, but prior date to the effective date of the termination or layoff itself.

Lawyer's Notes/Date of Disability

When an injury involves a cumulative injury or an occupational disease, Labor Code Section 5412 defines the date of injury as the date upon which there is a concurrence of both disability and a knowledge that the disability is related to the workers' employment. In some cases, years can pass before the worker may possess the requisite knowledge because of the subtle progressing condition or disease.

It is important that an injured worker consult an attorney to determine the appropriate date of injury. It may appear that the one year statute of limitations has expired, but only if the worker can be charged with knowledge that this occupational disease or cumulative trauma injury was work related. The statute may not have expired and the claim may be valid.

Lawyer's Discussion Of Maximum Period Of Temporary Disability Payments

Labor Code Section 4656 provides that the total payments for temporary disability for an injury occurring on or after January 1, 2008 shall not exceed 104 weeks within a period of 5 years from the date of injury.

However, an employee who suffers an injury involving hepatitis, an amputation, severe burns, HIV, a high velocity eye injury, chemical burns to the eyes or pulmonary fibrosis, or chronic lung disease may be entitled to a total 204 weeks of temporary total disability.

Lawyer Case Law

In the Barbara Bonzo case in June, 2010, the Workers' Compensation Appeals Board stated that the workers' compensation judge has the discretion to follow the treating doctors opinion and is not bound to follow the Panel QME's opinion on issues presented. The defense lawyer had contended that the trial judge was obligated to follow the Panel QME on all issues, which the court rejected.

Lawyer's Discussion Regarding Panel QME Reports

The WCAB has held that the Labor Code requires that a QME's report be completed and submitted within 30 days of the date the QME examined the injured worker, unless the QME has requested an extension of time as allowed by law.

The injured workers' lawyer must object to the report prior to its service in order for the report to be bared by Labor Code Section 4062.5.

Subsequent Injuries Benefit Trust Fund Claims

The lawyer for the injured worker should inquire to determine whether the injured worker had a preexisting disability prior to the date of his/her industrial injury. If the injured worker sustains an industrial injury which rates more than 35% or involves opposite members (opposite hands or wrists, opposite arms or opposite legs), and the total disability including the disability that existed prior to the industrial injury totals of 70% in combination with the industrial injury, the injured worker may have a subsequent injury for which additional compensation can be secured. There are various requirements in order to qualify for the Subsequent Injuries Benefit Trust Fund and the injured worker should discuss this thoroughly with his or her lawyer. The attorney should evaluate any potential preexisting disabilities to insure that any Subsequent Injuries Benefit Trust Fund claims are properly filed and pursued as justified by the facts.

Lawyer's Obligation To The Injured Worker

A workers' compensation lawyer or attorney owes an obligation to his injured worker or client to pursue his claims zealously within the ethical confines of the law.

Workers' compensation injuries in California are now determined based on the AMA guidelines. The whole person percentages in the Guides estimate the impact of the impairment on the individuals overall ability to perform Activities of Daily Living including the effects of the impairment on the ability to perform complex work and social activities. It is therefore important that the client keep his doctor advised and the lawyer about the effect the injuries are having on the clients ability to perform Activities of Daily Living. The lawyer should send the client an Activities of Daily Worksheet to complete so that it could be furnished to the treating doctor.

Reasonable Lawyer's Fees

Generally, the Workers' Compensation Appeals Board will Award a 15% fee to the client's lawyer based on the amount of the settlement involved. The rules of practice and procedure provide that, in establishing a reasonable lawyer's fee, the workers compensation judge or arbitrator shall consider the:

A) Responsibly assumed by the attorney. B) Care exercised in representing the applicant. C) Time involved. D) Results obtained.

The rules provide that a lawyer cannot except a fee from an injured worker until the fee has been approved or set by the Workers Compensation Appeals Board.

Identify Clients Injuries

The clients lawyer should inquire to identify any and all injuries caused by the industrial occurrence. Injuries can include disability related to sleep impairment, emotional depression and anxiety, abdominal or gastrointestinal complaints caused by the injury or the medication intake, neurological injuries, cardiovascular problems caused or aggravated by the industrial injury and various other injuries that need to be identified and addressed by medical specialists. It is extremely important that the injured worker keep his treating doctor and his lawyer advised at all times of all physical complaints that may be attributable to the industrial injuries or the medical treatment that has been received.

Under the new system, the injured worker has to treat with a primary treating doctor on the insurance companies Medical Provider Network in most situations. The only other doctor that the injured worker is likely to see is the Panel QME chosen by the State Panel list. Therefore, the primary treating doctor is extremely important and must insure that the injured worker sees all necessary specialists for any secondary injuries such as depression or anxiety in order for the issue of disability to be identified and established.

There should always be open lines of communication with the applicant's attorney or lawyer so that the lawyer is kept advised of any new injuries that have developed. In many instances these injuries develop months or years after the industrial injury.

Make sure in your case that both the doctor and the lawyer identify your ability to perform Activities of Daily Living so that your permanent disability will be adequately addressed.

Worker's Compensation Disclaimer

Making a false or fraudulent workers' compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000.00 or double the value of the fraud, which ever is greater, or by both imprisonment and fine.

No Attorney/Client or Lawyer/Client Relationship will be established by a website visit or contact form submission to our website. Attorney/Client relationship will only begin when the necessary retainer forms had been signed by the client and acknowledged by the lawyer.

There is no guarantee of success since each case is pursued differently based on the merits of on the particular case. As such, there can be no guarantee as to the outcome of any particular case. Attorney/Lawyer promises to use his best efforts, experience and knowledge to secure the best outcome for the client based on the circumstances involved.

Please call our office for advice or consultation at your convenience. (800) 400-8321.