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While the mail never stops coming in, with summer in full swing, it’s important when a sunny day comes along to take a deep breath and remember that people are the raison d’etre of this industry. Injured workers, claims professionals, attorneys, Judges, and employers are all trying to balance the interests involved in each claim, by providing benefits and preventing bad practices. It’s a hard job and so it’s absolutely necessary to sometimes take a day to connect, play, and trade stories with others in the industry. So with that in mind, and before discussing the nitty gritty legal developments of note this month, Mullen & Filippi thanks all of the attorneys and claims professionals who made the Valley Industrial Claims Association (VICA) golf tournament such a hole-in-one. As you can see from the below photos of the event, a good time was had by all, and people had a chance to refresh and connect on the golf course, where the only arguments were over Mulligans and playing through.
The Continuing Saga of Vocational Evidence
As discussed in past Bulletins, Judges have thus far been somewhat split on whether vocational evidence is even admissible in injuries that occurred after 1/1/2013, given the changes in the law reflected in Labor Code 4660.1. The defense bar reasonably believes that there was legislative intent to curtail the use of diminished future earning capacity evidence in establishing disability, as indicated by the removal of the phrase “consideration being given to an employee’s diminished future earning capacity” in Labor Code 4660.1 for injuries that occur after 1/1/2013, as well as the replacement of the range of DFEC modifiers with an across the board 1.4 adjustment factor for all varieties of injury.
Recently, a panel of three Commissioners at the WCAB, in the case of Hanus v. URS/AECOM Corporation (2018), upheld a WCJ’s award of permanent and total disability in a case where the defendant had argued that the injured worker could not rebut the 2013 Permanent Disability Rating Schedule (PDRS) and that the Dahl case disallowed a rebuttal of the PDRS by a showing that a different DFEC modifier was justified by the facts. The applicant, who was seriously injured, had submitted both medical reports showing extreme impairment and a vocational expert report describing a complete inability to compete in the open labor market. The Commissioners, in upholding the award after trial, were quick to point out that there is no 2013 PDRS and that the 2005 PDRS, which remains operative, only provides prima facie evidence of permanent disability and can still be rebutted. The WCJ at the trial level had concluded that there was no change to the law that precluded a finding of total disability “in accordance with the fact,” under Labor Code 4662. The Commissioners agreed and found that the 100% finding was based on an individual assessment of applicant’s limitations that was supported by both medical and vocational evidence. Unfortunately, this issue will likely remain unsettled and continuously litigated until a higher court opines.
Maximum and Minimum TTD Rates Increasing in 2019
The Division of Workers’ Compensation (DWC) recently announced that the maximum weekly temporary total disability rate will increase on 1/1/2019 to $1,251.38 per week. The minimum rate will increase to $187.71 per week. The rate changes are based on Labor Code Section 4453(a)(10), which ties TTD rates to the state average weekly wage (SAWW), which increased from $1,206.92 to $1,242.78 as of 2018, according to United States Department of Labor.
This Bulletin was written by Jim Cotter, Associate Partner in our Oakland office.
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