CT claim and settle docs (California)

[lacompfun]

Scenario:

AA pleads CT during applicant entire period of employment about two decades

Terminal carrier on CT has coverage last two years.

Question:

Upon settlement do most defendants on a Stipulated Award list the entire period of employment?

OR

Do they Amend the Stipulated Award to include just the last year of employment?

[LawAdvocate]

You only list the periods of coverage for which you represent, not the whole period - because later if an occupational disease comes up, you don't want to be tagged for the liability if the latency for that disease is not in your coverage period.

So, keep the record clear by settling the coverage dates for the Defendant you represent.

[vampireinthenight]

Typically I would only put one year, but certainly not more than the 2 years of coverage.

[LawAdvocate]

So the Applicant can come back and add additional CT periods of coverage, given later notice? I disagree, that is legal malpractice and unless the Applicant attorney has good cause, you should resolve all of the defenses exposure related to those body parts.

[vampireinthenight]

Nah, it doesn't work like that.

[LawAdvocate]

Yes, it does work like that.

Just because you haven't seen it, does not mean it doesn't happen. If the CT spans the Applicant's entire career, you better bet that any insurance carrier is going to hold your feet to the fire for failing to settle any period of potential exposure. I have seen it and it does happen. But forge on in your losing clients, it is always better to err on the side of caution.

[vampireinthenight]

I don't know why you think the exposure is not being settled. If it makes you feel more secure in your settlement, then by all means do it and pat yourself on the back for a job well done. But legally you're not in any better position to defend future claims.

[jpod]

I am trying to understand the legal nuance here. If it was 1980 and the carrier had the last two years of injurious exposure would you put two years of CT on the document?

In others words is it LC 5505.5 which is at play here, that by 1981 one could only back one year to bring in other insurer's? Or is it that the "consideration" for settling the claim doesn't cover a claim not yet brought?

[LawAdvocate]

There have been full work term CTs found in CA and they continue to be found.

You may be regulated by LC 5500.5, but if you are going to settle - why would you not settle all periods of coverage for the defendant for those body parts, so that if something arises in the future, you are covered? You will be covered for those body parts settled by listing all periods of coverage, not just the last two.

[jpod]

But how can you overcome the argument that even doing so is not a valid contract?

There has to be an offer and acceptance, and the WCJ has to find that the offer is adequate. So if I settle a soft tissue claim for $7,500 and later a claim is brought for a brain injury that was not "vetted" in the soft tissue claim the C&R doesn't protect me from the brain injury, the WCJ could just set aside the C&R for just cause and you are back to where you were.