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New and further disability?? (California) (California)

PostPosted: Tue Dec 08, 2009 9:55 am
by nelsonslaw
New and further Petition filed against the employer was dismissed by the judge on 3/21/07 as being untimely. Defendant is now proceeding against the employer on a compensable consequence theory. My question is whether this employer would have any liability on a compensable consequence theory in the absence of a viable new and further disability?? Any advice would be greatly appreciated. Thank you.

Re: New and further disability?? (California) (California)

PostPosted: Tue Dec 08, 2009 12:46 pm
by steelmanlaw
It looks as though you meant to say "Applicant" rather than "Defendant" is now proceeding against the employer.

At any rate, there was the reported case of about 20 years ago where applicant had a timely orthopedic award, and subsequently started treating psych about seven years after date of injury, forensically related to the ortho award. The award did not mention psych and was not otherwise apparent within the five years.

The appellate body in question (either the WCAB or court of appeal) found that the psych treatment to be a compensable consequence and thus treatment therefor was reimbursable even though no timely petition to reopen to amend to add "psyche" had been filed. Thus, so long as the treatment for an otherwise compensable consequence derives from an injury found by an award made within the five years from date of injury, the treatment costs are reimbursable even though new and further disability thereon is beyond the Board's JDN. This point of law is pretty much noncontroversial so long as there is substantial medical evidence to supporting a finding that the newer medical condition is substantially caused by the original injury.

This would of course support treatment authorization/reimbursement for any compensable consequence reasonably experienced more than five years after date of the original injury. I hope this points you in the right direction.

Re: New and further disability?? (California) (California)

PostPosted: Tue Dec 08, 2009 1:00 pm
by nelsonslaw
Thank you for your response. Do you recall the name of that case?

Re: New and further disability?? (California) (California)

PostPosted: Tue Dec 08, 2009 4:46 pm
by steelmanlaw
i'll find it . . . tomorrow!

Re: New and further disability?? (California) (California)

PostPosted: Tue Dec 08, 2009 4:49 pm
by vampireinthenight
This should get you started:

LAINES, 48 Cal.App 3d 872

Re: New and further disability?? (California) (California)

PostPosted: Thu Dec 10, 2009 9:02 am
by nelsonslaw
Thanks Vampire, but that case didn't really help me find what I was looking for. Do you happen to know what case Steelman is talking about above? The case name or anything???