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Find Solutions & Strategies September 16, 2013 |
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 LC 4663 & 4664: A Radical/Diametrical Change in Apportionment Law
Analysis of recent Acme Steel hearing loss case |
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A Note From the Editor | |
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Dear Work Comp Community:
Welcome to our Apportionment issue. To receive our free eNewsletter, sign up here.
Sincerely,
Robin E. Kobayashi, J.D.
LexisNexis Legal & Professional Operations
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CWCDAA Winter Conference | |
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Nov. 7-10, 2013
Disney's Grand Californian Resort & Spa in Anaheim
Speakers include:
Chairwoman Ronnie Caplane, Dr. Rupali Das, Medical Director, Commissioner Alfonso Moresi, Mark Kahn, Esq., Raymond Correio, Esq. & more
View agenda. Register online. |
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WorkCompCentral Education | |
SB 863 Revised Statutes
& New Regs Explained
With Judge Colleen Casey
Attorneys are invited to attend a joint session with physicians prepping for the QME exam
Sept. 21, Los Angeles
Sept. 28, Oakland
Call 805-484-0333 | | |
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apportionment: acme steel |
 A Radical/Diametrical Change in the Law of Apportionment, by Raymond F. Correio, Esq. It has been almost ten years since the enactment of SB899 and Labor Code §§4663 & 4664. Both of these Labor Code sections reflect a clear legislative intent and mandate to reverse the prior thirty-six years of case law that had evolved in the area of apportionment. In Acme Steel v. Workers' Comp. Appeals Bd. (Borman) 218 Cal.App.4th 1137, the First District Court of Appeal in a decision certified for publication, sent a clear message that even when the vocational evidence in the case pursuant to Oglivie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262, establishes an applicant is 100% permanently totally disabled, that unrebutted substantial medical evidence establishing a basis for apportionment under Labor Code §4663 cannot be ignored. Read more.
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apportionment: "in accordance with the fact" |
 This noteworthy panel decision will be added soon to the Lexis Services.
Permanent Disability; Apportionment; Permanent Total Disability. WCAB, reversing WCJ in a split panel opinion, held that a finding of permanent total disability "in accordance with the fact" pursuant to LC 4662 does not preclude apportionment of permanent disability between industrial injuries as described in Benson v. W.C.A.B., if apportionment is supported by substantial evidence in record, that apportionment "in accordance with the fact" is not a "conclusively presumed" permanent total disability under LC 4662, and...read more. |
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Rassp & Herlick CASE ALERT: judicial immunity for WORKERS' COMP JUDGES |
 It has long been the case that judicial immunity protects Workers' Compensation Judges from lawsuits when they act in their official capacities. The recent federal district court case, Tracy Gilkerson v. Joel Harter, et al., involving several WCJs, provides a good discussion of the law on this topic. This case alert is brought to you by Rassp & Herlick, California Workers' Compensation Law.
Federal Suits; Immunity of State Officials; Service of Summons. California federal district court dismissed plaintiff's first amended complaint against defendants Workers' Compensation Appeals Board (WCAB), workers' compensation judges (WCJs) and multiple law firms in which plaintiff alleged that defendants violated his constitutional rights and California laws during litigation of his workers' compensation claims before WCAB, when district court found that...read more. |
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| lexisnexis legal newsroom blogs |
 Air Ambulance Case Denied Writ of Review: Cal. Comp. Cases Advance Postings. Lexis online subscribers can read it.
 Workers' Comp Fraud Blotter: Video Demolishes Fraudulent Workers' Comp Claim. Read it and other news items. |
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| new job posting |
 Department of Industrial Relations (DIR) $4,674 to $10,477/month DOE Litigate a variety of labor and employment matters at admin. and civil trial and appellate levels including, workers' comp., prevailing wage/public works, and public employment. Travel throughout SoCal may be required. Send a State Application (Form STD 678) with a resume and 2 recent writing samples to: DIR, Office of the Director - Legal Unit, Attn: Hiring Coordinator, 320 W. 4th Street, Ste. 600, Los Angeles, CA 90013, Or by email to juribe@dir.ca.gov
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| apportionment, cont. |
 ...that, here, WCJ failed to address evidence regarding issue of apportionment of permanent total disability between applicant's specific and cumulative injuries based upon his incorrect conclusion that there is no basis for apportionment when permanent total disability is determined "in accordance with the fact" under LC 4662; WCAB returned matter to trial level for further development of record on issue of apportionment between applicant's injuries . See Valenzuela panel decision. |
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| judicial immunity, cont. |
...(1) plaintiff's claims against WCAB were barred because WCAB was immune from federal suit pursuant to Eleventh Amendment of U.S. Constitution, plaintiff provided no evidence that WCAB waived its Eleventh Amendment protection, and plaintiff failed to identify any evidence of congressional intent to abrogate WCAB's Eleventh Amendment immunity, (2) Eleventh Amendment barred plaintiff's action against WCJs in their official capacities for violations of federal law for damages and other retroactive relief and for violations of state law for retrospective and prospective relief, and WCJs, acting within their official duties, had absolute judicial immunity from suit that extended to suits for declaratory, injunctive and other equitable relief, and (3) plaintiff's claims against defendant law firms were barred for plaintiff's failure to properly serve defendants with summons. Lexis Online Subscribers: Gilkerson v. Harter (lexis.com); Gilkerson v. Harter (Lexis Advance). |
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