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Diligent Search for Work or Just Diddling Around

By Paul B. Howell, Franke & Salloum, PLLC, Gulfport, Mississippi Most cases under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.S. § 901 , et seq. , involve the issue of a claimant's entitlement to disability. Disability is defined at 33 U.S.C.S. § 902 (10) as...

California: So You Think You Know Who Has the Burden of Proof on Apportionment?

Prior to Senate Bill 899, the law was clear as to which party had the burden of proof on the apportionment issue. If defendant could not provide substantial evidence that there was either pre-existing PD or a progressive disease process, apportionment could not be found. In other words, it was unequivocally...

LHWCA: Responsible Employer Determination in Cases Involving Multiple Traumatic Injuries: Seeking Analytical Clarity

By Yelena Zaslavskaya, Senior Attorney for Longshore Office of Administrative Law Judges, U.S. Department of Labor, Washington, D.C. Relevant Precedent [fn1] Case precedent prescribes the rules for identifying the responsible employer/carrier in cases potentially involving multiple traumatic injuries...

California: Court Rules Labor Code Section 3208.3 Burden of Proof Falls on Applicant

The Second District Court of Appeals has reversed a W.C.A.B. award of psychiatric injury for an employee with less than 6 months employment and in doing so has provided valuable additional guidance on the criterion for meeting the statutory exception to the 6 month limitation on such injuries and the...

California: Court Rules Labor Code Section 3208.3 Burden of Proof Falls on Applicant

The Second District Court of Appeals has reversed a W.C.A.B. award of psychiatric injury for an employee with less than 6 months employment and in doing so has provided valuable additional guidance on the criterion for meeting the statutory exception to the 6 month limitation on such injuries and the...

Missouri: No Benefits for Alleged Fume Exposure

Claimant lost his claim against the second injury fund when he failed to prove an accident that his alleged exposure to muriatic acid fumes caused a heart attack. Poarch v Treasurer of the State of Missouri , 2012 Mo. App. Lexis 592 (May 1, 2012). The court rejected an argument that the commission must...

Missouri: Commission Guts Benefits to Sex Assault Victim

When there is no other evidence on the issue of rate, the statutory minimum rate of $40 a week applies. The claimant has the burden to prove rate. Boilerplate pleading asserting the "maximum" rate on a claim did not entitle claimant to the statutory maximum rate, even when the employer was...

Larson’s Spotlight on Recent Cases: Partially Disabled Claimant With Combined Injuries Should Not Receive More Payments Than a Quadriplegic Claimant

Larson's Spotlight on Scheduled Award, Average Weekly Wage, Medical Benefits (Pool Therapy), and Nose Disfigurement. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law , has compiled the...

California: W.C.A.B. Provides Teeth to Lien Litigation

After going virtually the entire calendar year without a substantive en banc decision, the W.C.A.B. has issue a new opinion which provides significant guidance to the workers’ compensation community in one of the emerging battleground areas that is likely to develop under SB 863. In Torres v AJC...

California: W.C.A.B. Provides Teeth to Lien Litigation

After going virtually the entire calendar year without a substantive en banc decision, the W.C.A.B. has issue a new opinion which provides significant guidance to the workers’ compensation community in one of the emerging battleground areas that is likely to develop under SB 863. In Torres v AJC...

Compensable Knee Injury Upheld for Soccer Playing Applicant: Cal. Comp. Cases December Advanced Postings (12/12/2012)

Here’s the third batch of advanced postings for the December 2012 issue of Cal. Comp. Cases. Lexis.com subscribers can link to the cases to read the complete headnotes and summaries. © Copyright 2012 LexisNexis. All rights reserved. Ecolab, Inc., New Hampshire Insurance Company, administered...

Average Weekly Wage Does Not Include Unproved Overtime Pay: Cal. Comp. Cases January Advanced Postings (1/23/2013)

Here’s the fourth batch of advanced postings for the January 2013 issue of Cal. Comp. Cases. Lexis.com subscribers can link to the cases to read the complete headnotes. © Copyright 2013 LexisNexis. All rights reserved. Yolanda Cruz Garduno, Petitioner v. Workers' Compensation Appeals...

Wyoming: Burden of Proof Includes the “Burden of Persuasion”

Emphasizing that the burden of proof contains two elements: (i) the burden of production and (ii) the burden of persuasion, the Supreme Court of Wyoming recently affirmed a trial court’s finding that a claimant failed to establish a causal connection between a compensable 1988 lower back injury...

Missouri Supreme Court Eases Burden Of Proof For Retaliatory Discharge Claims

The Supreme Court reversed 16 years of precedent on a worker’s burden of proof to establish retaliatory discrimination after exercising his rights under the Missouri Worker’s Compensation Act. A worker no longer has to show that discrimination was an exclusive factor in a termination but...

Wyoming: Burden of Proof Has Two Elements: Burden of Production and Burden of Persuasion

Reminding the parties that the burden of proof consists of two elements: the burden of production and the burden of persuasion, the Supreme Court of Wyoming affirmed the denial of workers’ compensation benefits for back pain that the claimant believed was related to an earlier workplace accident...

Green v. City of Los Angeles: Refresh of Apportionment

Rejection of the Black Box Approach By Charles Edward Clark, Esq. 1 INTRODUCTION In the years since E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922 [ 71 Cal.Comp.Cases 1687 ], apportionment analysis has been plagued by the “black box”...

California: Whose Burden Is It, Anyway?

With all of the changes in the law the last few years, practitioners are finding it more difficult to determine which side has the burden of proof. Once determined, they have a difficult time finding the appropriate evidence needed to meet this burden. Set forth below is a summary of recent Noteworthy...

Medical Evidence Alone of Inability to Compete in Open Labor Market Could Not Rebut Permanent Disability Rating: Cal. Comp. Cases October Advanced Postings (10/10/2014)

Here’s the third batch of advanced postings for the October 2014 issue of Cal. Comp. Cases. Lexis.com and Lexis Advance subscribers can link to the case to read the complete headnotes and summaries. © Copyright 2014 LexisNexis. All rights reserved. Sonia Morris , Petitioner v. Workers'...

Illinois: Where Trier of Fact Believes Employer’s Non-Pretextual Reason for Discharge, Employee Fails to Carry His or Her Burden of Proof

The Supreme Court of Illinois held that in a retaliatory discharge action, the burden of proof is on the discharged employee to show that the employment was terminated and that the termination was in retaliation for the employee’s actions, that if an employer provides a reason for the employee’s...

Employer’s Medical Report Obtained At Own Expense Deemed Wholly Deficient: Cal. Comp. Cases January Advanced Postings (1/16/2015)

Here’s the third batch of advanced postings for the January 2015 issue of Cal. Comp. Cases. Lexis.com and Lexis Advance subscribers can link to the cases to read the complete headnotes and summaries. © Copyright 2015 LexisNexis. All rights reserved. United States Fire Insurance Company...

Defendant Entitled to Credit for Full Amount of Long-Term Disability Benefits: Cal. Comp. Cases February Advanced Postings (2/5/2015)

Here’s the second batch of advanced postings for February 2015 issue of Cal. Comp. Cases. Lexis.com and Lexis Advance subscribers can link to the case to read the complete headnotes and summaries . © Copyright 2015 LexisNexis. All rights reserved. Jessie Lee Sherrod, Petitioner v...

California: Vocational Experts and Apportionment

The Exception to Defendant’s Burden of Proof on Apportionment One of the most frequent issues pending before the WCAB lately has been how to handle apportionment to significant non-industrial causes when the applicant has successfully rebutted the Diminished Future Earning Capacity (DFEC) through...

California Workers’ Comp Case Roundup (4/6/2015)

CALIFORNIA COMPENSATION CASES Vol. 80 No. 3 March 2015 A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review CONTENTS OF THIS ISSUE © Copyright 2015 LexisNexis. All rights...

District of Columbia: Court Construes Burden Shifting Framework Required to Pass on Employer’s Termination of Benefits Request

Where an employer has accepted a claim and paid workers’ compensation benefits, but later moves to terminate or modify those benefits, the employer has the burden of proving by a preponderance of the evidence that conditions have changed such that the claimant no longer is entitled to the benefits...

Seizure Was Compensable Consequence of Industrial Head Injury: Cal. Comp. Cases July Advanced Postings (7/7/2016)

Here’s the latest batch of advanced postings for the July 2016 issue of Cal. Comp. Cases. Lexis.com and Lexis Advance subscribers can link to the case to read the complete headnotes and summaries. © Copyright 2016 LexisNexis. All rights reserved. CR England, XL Specialty Insurance...