SAWW, COLA and California Workers’ Compensation Death Benefit Payments.

Do the increases in Labor Code sections 4661.5 and 4659 apply to death benefits?

Labor Code Section 4661.5 can and does apply to death benefit payments pursuant to Phillips v. Sacramento Mun. Utils Dist. (1998) 63 CCC 585 in my opinion.    Labor Code section 4659 appears clear: “…an employee who becomes entitled to receive a life pension or total permanent disability indemnity is to have that payment increased annually commencing on January 1, 2004, and each January 1 thereafter, by an amount equal to the percentage increase in the ‘state average weekly wage’ as compared to the prior year.”  Emphasis added.

However at least one case held as follows:

“COLA for death benefits payable at TD rate would continue throughout dependent’s life, when in fact they do not continue indefinitely but are capped at two-thirds of injured employee’s average weekly earnings at time of injury… This is because death benefit payments that have or will be made two years or more after the date of injury must be made at the TD rate in effect at the time each payment is made. (Lab. Code, § 4661.5;  Phillips v. Sacramento Municipal Utilities Dist. (1998) 63 Cal.Comp.Cases 585 (Appeals Board en banc).) Further, when the two-year period has elapsed, ‘[c]ommencing on January 1, 2007, and each January 1 thereafter, the [TD-and, therefore, death benefit payments] shall be increased by an amount equal to the percentage increase in the [SAWW] for the prior year.’  (Lab. Code, § 4453(a)(10).)  Accordingly, with death benefits-as with PTD benefits-an increase based on the change in the SAWW does come into play.  However, unlike PTD benefits, the  [*29] annual increases in the death benefits rate based on the SAWW do not continue indefinitely for the recipient’s life.  This is because, regardless of the SAWW increases, the death benefits are eventually capped at two-thirds of the injured employee’s average weekly earnings at the time of injury. (Lab. Code, § 4653.)”  Melissa J. Munson (Deceased), Dean L. Munson, Individually and as Guardian Ad Litem and Trustee for Carl E. Munson, et al., Applicant v. City of Los Angeles Police Department, PSI, Tristar Risk Management (Claims Administrator), Defendants 2011 Cal. Wrk. Comp. P.D. LEXIS 387.  [Emphasis added].

So what is the conclusion?  Simple:  every case must be analyzed on an individual basis.  If the facts of any death case reflect earnings sufficient to apply the above increases, increases should be calculated then considered for application to the case.  So in some cases the SAWW/COLA may come into play on death benefits, just not cases lacking sufficient earnings supporting higher rates.

As always this is not legal advice, only information to assist those struggling with these legal questions and answers.  Please see the entries below regarding the limitations of this WordPress entry and please retain competent legal counsel should you require legal advice, counsel and/or opinions on your specific legal issues.

 

Workers’ Compensation Treatment Issues In California

Treatment issues are front and center in the California workers’ compensation system today. The balance is always between abuse controls, often driven by fraud, versus ensuring those needing necessary treatment promptly receive it. I personally think it essential to strike that balance to avoid worst case scenarios of fraud http://www.insurance.ca.gov/…/0100-fraud-divisi…/25-wc-conv/ and tragedies based on lack of necessary carehttp://www.nbcbayarea.com/…/Workers-Comp-Drags-Out-Medical-… for any individual in need. Neither help regardless of what role one plays in California’s workers’ compensation system.

Mediation In Workers’ Compensation

One of my most intelligent clients asked me about the differences between mediation and appearances such as Mandatory Settlement Conferences before the California Workers’ Compensation Appeals Board.

Read my thoughts by clicking here.

Please note the above link and this blog are Copyright © 2016 by David H. Parker.  Please ask permission first if you use, cite or otherwise circulate.

Playing Catch-Up 2016

I am catching-up on recent case law this morning.  Daniel Belling v United Parcel Service WCAB CA is a new case with two interesting points that resonate with me.

The WCAB found as soon as a case becomes compensable go back and do retrospective utilization review on every single Request for Authority in the file.  The Board clearly did not consider a post-compensable 6 month delay in doing so appropriate, referencing audit possibilities arising from the facts of the claim at issue.

Also I found its reference to not “transferring” an employer’s responsibility for home health care to a spouse instructive.

The case is a worthwhile read particularly for claims personnel.

PWIC Fresno

I will be moderating an excellent panel at Professionals In Workers’ Compensation Fresno’s 2015 Work Comp World Series on October 15, 2015 at 3:00-4:00 P.M.

You may learn more and register by clicking here.

Panelists include David Parker Larry Williams of Hall Ag Enterprises Inc., Martin Acree Saladino’s Food Service, Ward Scheitrum Zacky & Sons Poultry, LLC and Jan Piel MV Transportation, Inc.

We are the last panel of the day but make sure you stay around as you are sure to learn a lot and be entertained.

Hope to see you there.

Can I Terminate TTD Benefits?

I had a very good general question the general answer to which I post here in case you are interested or looking for legal authority on TTD termination issues:


Q:  If the applicant is not showing up for work despite of our offer accommodating medically appropriate modified work restrictions without wage loss, can I terminate TTD in California?  There is no Award of TTD benefits, just a doctor report indicating the modifications medically necessary and the doctor’s opinion applicant is TTD if the employer cannot provide the modified work.

A:  Generally the answer is yes assuming this form and offer was procedurally compliant and provided and assuming no prior Award or change in medical condition to alter the modified work restrictions.

Please note I generally recommend a Petition to Terminate TTD be filed pursuant to Title 8 CCR 10464 (https://www.dir.ca.gov/t8/10464.html) assuming an Award of TTD is in place.  In this general question there is no Award in place of TTD in this case thus a Petition does not appear required.  

If an Award of TTD has issued I generally recommend the Petition referenced above based on Title 8 CCR §10462 (Petition to Terminate Liability; Filing) requiring “a petition to terminate liability for continuing temporary disability indemnity under a findings and award, decision or order of the Appeals Board or a workers’ compensation judge shall be filed within 10 days of the termination of the payments or other compensation.”  The regulation further provides “failure to file such a petition within 10 days may affect the right to credit for an overpayment of temporary disability indemnity.”

Note Title 8 CCR 10464 requires “all medical reports in the possession of the petitioner that have not previously been served and filed shall accompany the petition.  The petition also shall contain a statement, in underlined capital letters, that an order terminating liability for temporary total disability indemnity may issue unless objection thereto is made on behalf of the employee within 14 days after service of the petition.”

This is a very good question, but I again caution readers:

I am just providing general information and not giving legal advice;

No attorney-client relationships are formed by any posts, comments, or replies to comments; and

If you the reader require legal advice, please consult with an attorney licensed to practice in the jurisdiction in which you need legal assistance.

Thanks as always for reading.

Reminder

  • I am just providing general information and not giving legal advice;
  • No attorney-client relationships are formed by any posts, comments, or replies to comments; and
  • If you the reader require legal advice, please consult with an attorney licensed to practice in the jurisdiction in which you need legal assistance.

Important information for those who read here.  Enjoy, and thanks for visiting.

Going and Coming Rule Presentation Professionals In Workers’ Compensation Fresno

Hello all:

If you attended my presentation at Professionals In Workers’ Compensation Fresno today you can find and download the materials by clicking the following links, but please remember to ask first for permission to re-print:

FINAL_PDF.pdf

SKMBT_65214123016210.pdf

Also here is a copy of the PKNW 60 Second Update Video:

Update_Movie.mp4

Thank you for attending

Going and Coming Rule Peace Officers

I tried a case resulting in a Findings and Award in favor of applicant on December 13, 2013. The issue was and remains whether a peace officer involved in an accident while commuting to work suffered injury arising out of and during the course of employment. I and my client believed at and after the trial that the facts and law supported a take-nothing defense. On December 24, 2014 the Workers’ Compensation Appeals Board agreed, rescinding the WCJ’s Findings and indicating that applicant take nothing as he “did not sustain an industrial injury” in its Opinion and Decision After Reconsideration.

The decision was split as one Deputy Commissioner dissented. Clearly this is a very difficult case which is evidenced an Award issued by the WCALJ, then a split Opinion and Decision After Reconsideration. I and my client are confident and pleased the WCAB came to what we analyze to be the correct decision. However we also expect the possibility of further legal challenge by applicant.

If you are interested in reading a copy of the Opinion and Decision click http://davidhparker.org/images/SKMBT_65214123016210.pdf.  You will find an excellent discussion of the applicable law by the WCAB therein.

I am always appreciative of the clients such as this one who place enough confidence in my legal opinions to proceed both to trial then Reconsideration of tough cases such as this one. I believe in the WCAB process, and I believe it does justice to all parties when the parties do and are allowed to do their jobs sometimes despite the risks.  I also appreciated the WCAB’s review and analysis.  This is a good example of how much work goes into the more difficult issues arising in the California Workers’ Compensation system.

I will update this post if and after additional appeals. If you have questions feel free to email me by finding the link on this page:

http://davidhparker.org/blog.php

Bodam v. WCAB – A Post-Dubon Decision

Bodam v. WCAB ADJ8120989 (SBR 0041910)

The California Workers’ Compensation Appeals Board has issued a post-Dubon decision regarding the WCAB’s powers as well as the scope of its powers to determine the necessity of medical treatment.

The WCAB in Bodam considered the provisions of Labor Code section 4610(g)(1) and (g)(3)(A) and AD Rule 9792.9.1(e)(3) and held:

(1) A defendant is obligated to comply with all time requirements in conducting UR, including the timeframes for communicating the UR decision;
(2) A UR decision that is timely made but is not timely communicated is untimely;
(3) When a UR decision is untimely and, therefore, invalid, the necessity of the medical treatment at issue may be determined by the WCAB based upon substantial evidence.

The case turned on there being no evidence that defendant’s October 31, 2013 UR decision was communicated to the physician who issued a Request for Authority (“RFA”) by fax, phone, or email within 24 hours after the UR decision was made. There was also no evidence that written notice of the October 31, 2013 UR decision was provided to applicant, the physician who issued the RFA, or applicant’s attorney within two business days after the UR decision was made.

The WCAB held the WCJ correctly determined that defendant’s UR decision was not timely communicated and therefore invalid. Further, the WCJ properly ordered further development of the record by directing the parties to obtain a supplemental report from physician who issued the RFA to defendant. Defendant’s Petition for Removal was denied.

If you would like to read the entire decision click http://davidhparker.org/images/BodamTimothy.pdf

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