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double recovery? LC 4558 and 4553 (California)

PostPosted: Mon Mar 09, 2009 1:18 pm
Applicant suffers amputation injury using punch press. A serious and wilfull filed pursuant to LC 4553. Applicant also files a civil suit against employer for violation of LC 4558 (power press guard exception to exclusive remedy rule). Civil suit settles prior to WC case. WC Defense attorney claims that applicant cannot recover for S&W because applicant has already recovered against employer on civil suit, ie that it would be a double recovery. Can't seem to find any cases on point. Anybody ever have a similar situation? Is WC DA correct?

Re: double recovery? LC 4558 and 4553 (California)

PostPosted: Tue Mar 10, 2009 9:16 am

Looking in my Work Comp Index, 7th ed. under "Punch Press" I was referred to "Power Press," page 602, with 17 paragraphs, sub-paragraphs and sub-sub-paragraphs[no new ed. til summer, 2010]. The entry I believe you want is:

* Credit allowed carrier from civil suit under L.C. §4558, per L.C. §§3600(b), 3852;
Double recovery discouraged, FARIA 31 CWCR 271

The latter cite is my shorthand abbreviation for "Faria vs WCAB 31 CWCR 271" I think it makes it easier when scanning the book, looking for a cite if you know to look for BOLD.

FWIW, if anyone wants to use section symbols here, hold down the alt key, then hit 0167 and release the alt key. It shows up on the screen and I hope it prints in the post.

Re: double recovery? LC 4558 and 4553 (California)

PostPosted: Wed Mar 11, 2009 4:52 am

I received a couple of e-mails about the above post.

No, I do not have another cite. I suspect it was a panel decision.

Sidenote: Any cite in the CWCR can be given an approximate date by taking the first number in the cite and adding 72. For example, if the first number was "25" then 25 + 72 = 97...i.e., 1997 as the year the magazine was published. Here, we have "31" so 31 + 72 = 103...i.e., 2003.

If the second number is "low," let's say below 50 or 60, then the ipublication month was early in the year, February or March, since January is always an index of the prior year. In short, such a case could have been decided late in the prior year.

In the cite I gave the case almost has to have been reported in 2003.

It is not "legal" for an employer to insure against S&W...void as against public interest. I don't have a cite handy. A carrier can agree to provide a defense...some do, some don't.

I have had very little experience with S&W. That is, I haven't worked on that aspect of w/c claims. Hopefully, someone else can chime in as to benefits, credits, etc. when there is a companion civil case and damages exceed the civil recovery.