September
10, 2007 Source:
WorkInjury.com
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C.A.5:
Ct. Rules Parties Can 'Stipulate Away' 90-Day Presumption of Compensability
This unpublished opinion appears to be a fairly straight-forward example of an applicant attorney stipulating to something that turned out bad for the client.
The worker had sustained a previous injury, then claimed a subsequent CT with a new employer. There was no evidence presented at the MSC that the employer made any attempt to investigate prior to the 90-day presumptive period, yet the parties entered into the following stipulation at the MSC:
"Parties agree: Applicant sustained an admitted CT [cumulative trauma injury] 11/24/02, per LC § 5402. Defendants reserve the right to rebut based on later evidence." [emphasis added]
Subsequent to the 90 days, both the employer's QME, and then the applicant's, agreed that no new injury had occurred and that everything related back to the previous injury.
The trial judge however ruled that the new CT claim was to blame and the employer appealed.
The WCAB reversed stating that the parties had stipulated that the presumption could be rebutted and that the subsequent QME reports did just that.
The appeal court agreed. End of story. (Don't ask us why the applicant stipulated to the second sentence of the stipulation quoted above.)
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