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Court of Appeal Hands Down Decision That Is Favorable to Injured Workers

UPDATE: The Supreme Court of California granted the defendant’s appeal. We will keep you updated as to the outcome of this disputed legal issue.

The case of Duncan v. WCAB, recently decided by the Court of Appeal, issued a very favorable decision to injured workers when it comes to Cost of Living Adjustments (COLA) for disability benefits paid in some workers’ compensation cases.

Former California Governor Gray Davis enacted a law in 2002 that created a COLA provision to be applied to the highest disability awards. In short, the law says that a portion of a permanent disability award ranging from 70 to 100 percent for a workers’ compensation injury that occurred after January 1, 2003 may be subject to a COLA. This COLA benefit is a very valuable one that needs to be considered when pursuing a workers’ compensation case as it can substantially increase payments to an injured worker.

After the permanent disability has been paid in full for an award ranging from 70 to 99 percent, a “life pension” benefit is payable for the life of the injured worker.  The starting rate for this benefit payment varies depending on the percentage of permanent disability awarded. The life pension payment begins from eight to 13 years after the starting date of the permanent disability payment, depending on the percentage of permanent disability.

These payments are then increased annually according to increases in the “state average weekly wage.” The impact of inflation on cost of living is factored into this sum, which is determined each year by the State of California.  

Since 2002 there has been an ongoing dispute as to when the cost of living increases are to be applied to the life pension payments. Employers argued that the increases did not begin until the year after the life pension benefits were initiated.  Injured workers argued that was unfair, as the injured worker would lose the benefit of eight to 13 years of increases necessary to combat inflation.

In Duncan v. WCAB, the Court rejected the employers’ argument, clarifying that the COLA increases begin effective January 1, 2004, regardless of when your were injured, as long as the injury occurred after January 1, 2003.  Although this opinion is on appeal, if upheld, the value of life pension benefits has been increased significantly. This decision also applies to awards of 100 percent permanent disability. 

In light of this recent Court of Appeal decision, it is more important than ever for seriously injured workers to be represented by skilled counsel to ensure that their permanent disability award accurately reflects their level of disability.  The attorneys at Gordon, Edelstein, Krepack, Grant, Felton & Goldstein have the knowledge, skill and experience to enable workers to receive their proper awards and obtain the full value for settlements of their cases.

If you would like to talk to an attorney about your case, please contact us at 213-739-7000.



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