October 2010

Overpayment Credit may be denied

In Barbara Kimball v. WCAB, Metropolitan Hospital, the court upheld a case in which credit for overpayments of benefits under Labor Code Section 4909, was denied when the judge found that allowing the credit would create a financial hardship to the applicant. This makes it more important than ever to revisit automatic payments regularly so that fewer overpayments occur.
Once an overpayment has been noted, applicant and his or her representative should be notified of the overpayment and the intent to take credit against such benefits at the time of settlement or trial. While this will not guarantee credit is given for the overpayment, it shows the court that the applicant and representative were aware that the overpayment existed and that the credit would be sought.

Medical Evidence that is Reasonable or Probable is Sufficient

In Costco Wholesale Corporation v. WCAB, (Enrique Rojas), the appellate court refused to review a question regarding the burden of proof of industrial injury. The defendant contended that since a doctor could not pinpoint the precise etiology of applicant’s hypersensitivity pneunmonitis, the doctor’s report failed to constitute substantial evidence and therefore, should not have been followed.
The court noted that requiring a detailed account of the alleged industrial causation – such as all types of smoke inhaled and danger to decedent from each inhalant – would be ideal. However, such a standard would create an unbearable burden on applicants. The court found that to cover such unavoidable uncertainties, applicants are required to establish no more than the fact that industrial causation is reasonably probable, even if, as in this case, the doctor arrived at his conclusions by process of elimination.
Defense of such cases will require more careful deposition testimony from the applicant regarding the types of inhalants or smoke exposure the applicant may have been exposed to off the job.

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