WCDefenseCA

Happy Wednesday, dear readers!

Normally, your humble blogger would save the grim and death-related posts for closer to Halloween.  However, as retail stores continue to set the start time of selling Halloween costumes, candy, and decorations earlier each year, who is your humble blogger to resist?  After all, as Thomas Jefferson said, “in matters of style, swim with the current.”

So, I bring to your attention the matter of Wilson (deceased) v. Securitas Security Services USA, a writ denied decision.

Applicant had sustained an admitted injury and the ultimate award for permanent disability was 61%.  Applicant died about 1.5 years after the date of injury from non-industrial causes.  Relying on Labor Code section 4700 (“Neither temporary nor permanent disability payments shall be made for any period of time subsequent to the death of the employee.”)

Just think about that for a second – assuming max earner status, a 2012 injury would pay $230 per week, and 61% PD would result in $82,627.50.  As applicant passed just a year and a half after his injury, and assuming at least some period of temporary disability, there may have been some $70,000 or so (roughly estimated and speculated upon by your humble blogger) of unpaid PD.

Applicant’s heirs challenged Labor Code section 4700 on constitutional grounds, arguing that application of section 4700 constituted “unjust enrichment” for the insurer.  Although fairly grim, this is an accurate statement.  But, technically speaking, doesn’t the non-industrial death of any applicant relieve an insurer of future medical care obligations?  In that sense, though unfortunate, the non-industrial death of a claimant results in a limitation of exposure for the insurer.

On Reconsideration, the WCAB affirmed the WCJ’s application of section 4700.  It further rejected the constitutional argument on the basis that, as an administrative law body, it lacks jurisdiction to make determinations about the constitutionality of a statute.

The Court of Appeal likewise denied review.

In this particular case, applicant had accepted an offer to return to work after his injury and passed away while still an employee.  In such an instance the employer was in a position to immediately notify the insurer and the defendant was able to move swiftly to terminate PD benefits.

On that note, dear readers, your humble blogger wishes you a swift and easy rest of your week.