with appellate court cases. Once in a
while a Writ denied case will be
significant enough for the editor to
discuss. However, the current issue of
the newsletter chose a Writ Denied
case that provides a good review and
refers to appellate decisions.
(WRIGHT) 65
CCC 917
While making a delivery he was
arrested. At the time of the arrest the
applicant injured his right shoulder.
The carrier provided benefits based
upon a specific request from the
employer to accept the claim.
investigator who obtained witness
statements within the 90 days required
Code section 5402 requires the
defendant to deny liability within 90 .
days or the case is presumed
compensable. In this case the carrier
did not obtain the police report within
the 90 days.
received the police report and denied
liability on the basis the applicant was
intoxicated and was the initial
physical aggressor at the time of
injury. The defendant relied on Labor
Code sections 3600 (a) (4) and 3600
(a) (7).
(WCJ) found the injury compensable
since the claim was not properly
denied within 90 days. The WCJ also
found that neither defense was
applicable.
indicated that the carrier had witness
statements within the 90 days that
could have supported a possible denial.
In addition, a subpoena could have
been issued for the police report so
that the carrier would have had the
information within the 90 day time
limit. The WCJ then indicated the
police report would not be admissible
for purposes of determining
compensability. The WCJ relied on
defense The WCJ elucidated that the
carrier has the burden of proof of not
only the intoxication, but that the
intoxication caused the injury. In this
case the applicant had declined to have
blood drawn. The WCJ indicated that
the carrier had alternative means to
obtain evidence of intoxication and did
not do so. The WCJ reviewed Smith v.
WCAB (1981) 46 CCC 1053.
aggressor was addressed on the basis of
credibility of the witnesses. The police
officer was apparently disbelieved by
the WCJ because of the leading
questions by the defense attorney and
the change in the nature of his
testimony after a break in the
proceedings. The WCJ indicated there
was no evidence presented that the
applicant was the first to initiate any
harmful or potentially injurious
touching. The Appeals' Board relied on
Garza v. WCAB (1970) 35 CCC 500 for
relying on the WCJ's assessment of the
credibility of the witnesses.
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