total of all those benefits.
Section 4553. It determined that the
broad language of the statute left no
doubt that the term "compensation"
in the labor code included vocational
rehabilitation costs, medical
treatment and medical-legal fees.
award as they now interpreted it,
increased the award in such a manner
that it necessarily exceeded the
constitutional limit. They stated to
determine this you would perform a
test. You would need to determine "..,
on the basis of all compensation
received by the injured worker,
including indemnity as well as
non-indemnity benefits,"... whether
the injured worker is receiving more
than is necessary to fully compensate
the worker for all damages he or she
sustained as a result of the injury
caused.
the employer wish to litigate this
issue, the Board would have to
adjudicate the question in much the
way you would a third party credit or
employer negligence action. Which
means you would be presenting a civil
type of trial before the WCJ. The
Court specifically
that when you calculate an award in
favor of an employee for Serious and
Willful Misconduct medical treatment
will be included. Many practitioners
believed this was not included in the
term compensation.
W.C.A.B.
become a significant case for the
employer and the examiner under the
Employer's Bill of Rights. Serious and
Willful Conduct cannot be insured
against. However, what the adjuster
does in handling the main issues can
determine the ultimate effect of
damages in the S & W litigation.
benefits on total compensation
including all non-indemnity payments.
This meant that the award
encompassed not only temporary
disability, permanent disability, and
vocational rehabilitation benefits, but
also medical treatment. The employer
general tort law, not worker's
compensation law, defines the
substantive law concerning recovery in
a civil action."
heed when providing all benefits in an
S&W case because of the potential for
fixing liability for the employer. It now
becomes incumbent to have an attorney
representing the carrier at the outset on
these cases.
points. It states the injured employee in
a S&W now has the functional
equivalent of a tort action. It also raises
the issue that the same approach can be
used for an
including non-indemnity payments.
With significant medicals, this could
result in the injured worker receiving no
permanent disability. When an
employee alleges a
the employee engaged in
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