A Writ Denied Case Provides A Good Review Of 3 Concepts

This newsletter usually only deals 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.

The applicant was a truck driver.  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.

The insurance carrier hired an investigator who obtained witness statements within the 90 days required by Labor Code section 5402. Labor-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.

After the 90 days elapsed the carrier 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).

The Workers’ Compensation Judge (WCJ) found the injury compensable since the claim was not properly denied within 90 days. The WCJ also found that neither defense was applicable.

Li the WCJ decision, the judge 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 Williams v WCAB (1999) 64 CCC 995.  hi the discussion of the intoxication 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.

The issue of the initial physical 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.

Case: Calko v W.C.A.B. (Wright) 65 CCC 917

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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