CT claim and settle docs (California)

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Re: CT claim and settle docs time urgent (California)

Postby LawAdvocate on Fri Nov 30, 2018 10:35 am

Brain injuries are not soft tissue injuries, those are orthopedic injuries, it would only apply to the body parts settled, of course. So let's say you stipulate to injury in the right knee and then another CT is brought for full employment - if you already had injury to the knee, you owe no more benefits because you have covered your full periods of coverage, not just the last two years.
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Re: CT claim and settle docs time urgent (California)

Postby jpod on Fri Nov 30, 2018 11:12 am

But how do you get past LC 5412 - the date of injury for a CT is date upon which the employee knew, or should have known that their "disability" has a nexus to their employment. So if after I C&R the knee if my doctor tells me, "...you know this NEW issue with your knee is related to your employment..." I have one year to bring that claim. The C&R only settled "known" claims and can not reach to the a new CT which would have a DOI after the last date worked. Evidentiary issues of course abound but the new CT has be defended b/c the C&R did not cover the new 5412 DOI.
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Re: CT claim and settle docs time urgent (California)

Postby mytwocents on Mon Dec 03, 2018 12:45 pm

You’re talking about a C & R. The original question and responses involved a Stipulated Award. There’s a difference because in a Stip, the parties are agreeing to Findings of Fact concerning the legal date of injury and the injured body parts and conditions. In a C & R, they’re not agreeing to anything except that certain facts were claimed and disputed.

The liability period for a CT is the year prior to either the 5412 date of injury or the last date of injurious exposure, whichever comes first. So, you can have a 5412 date after the last date of work for the purpose of the statute of limitations, but not necessarily for setting the liability period for a CT unless the person continued to work a different job with the same injurious exposure. If a new issue comes up within 5 years concerning either a new or old body part, the applicant’s remedy is to file a Petition to Reopen. However, for a body part not included in the Stips, he’ll have to show he didn’t previously know about it.

The C & R form specifically states that it only covers dates and body parts listed, and issues checked, in the C & R, “in spite of any language to the contrary.” So, an addendum saying that the C & R covers any and all injuries during the entire period of employment is going to be null and void. If something entirely new comes up that the applicant didn’t know about and didn’t intend to resolve in the C & R, he can file a new C & R. See Ferragamo v. St. Louis Rams 2017 Cal. Wrk. Comp. P.D. LEXIS 283 where a football player C & R’d his football injuries involving multiple body parts in 1988 but was not barred from bringing a new claim of brain injury in 2013 when he developed CTE.

Even if a Stipulated Award covers the entire period of employment with a particular defendant, it is doubtful that a claim for a newly diagnosed cancer with the latency period falling within the coverage of that defendant, would be barred. I think the WCAB would take the position that the defendant would be getting a windfall if it was absolved of liability for something that neither party could have known about at the time of the Stipulated Award.

So, including the entire period of employment would probably only protect a defendant from future liability for the exact same body parts and conditions recited in the Stipulated Award or C & R. However, it certainly can do no harm to include the entire period of employment if the applicant is willing to go along with it.
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Re: CT claim and settle docs time urgent (California)

Postby vampireinthenight on Tue Dec 04, 2018 10:07 am

So if after I C&R the knee if my doctor tells me, "...you know this NEW issue with your knee is related to your employment..." I have one year to bring that claim. The C&R only settled "known" claims and can not reach to the a new CT which would have a DOI after the last date worked. Evidentiary issues of course abound but the new CT has be defended b/c the C&R did not cover the new 5412 DOI.


Of course, and there's no magic language that will prevent this type of filing, you just have to defend it. But you're talking about a new issue.

LA seems to be contemplating a scenario where the IW stipulates to a date of injury and then immediately re-files for the exact same pre-existing condition in the exact same body part but this time selects some different, random date of employment over a year prior to the stipulated award and then re-testifies that her date of knowledge stipulated to in the first set of stips was, in fact, incorrect. And now, for the first time, has knowledge that the exact same job duties caused a separate and distinct cumulative injury to the same body part, undiscovered by any physician until now. That no physician included or even contemplated this period of exposure and that, for some reason, LC 4664 should be totally ignored so she can be re-awarded the same disability all over again.

I think you can see how unsustainable this would be.
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Re: CT claim and settle docs time urgent (California)

Postby lacompfun on Tue Dec 04, 2018 8:39 pm

Good information here thanks

My post was on stipulated award. Just seems odd to have coverage just last year and stipulate to longer injury period because terminal carrier.

J pod on your post 5500.5 I believe it is 5412 or last injurious exposure whichever occurs first in time. So C&R duration employment on knee should cover it.
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