 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Anderson v. Metalclad Insulation Corp.5/19/1999
jury in 1976).)
Knowledge that exposure to asbestos is a cause or contributing cause of the plaintiff's condition is, however, only one element of the defense. Metalclad also had the burden of presenting evidence which, if uncontradicted, would establish that Anderson's injury rendered him disabled as defined in section 340.2 subdivision (b). If Metalclad's evidence did not meet that burden, then the court should have denied the motion, and the burden should not have been shifted to Anderson to present evidence that he was not disabled. (Bacon v. Southern Cal. Edison Co., supra, 53 Cal.App.4th at p. 858.)
Section 340.2 subdivision (b) defines disability very narrowly: " `Disability,' as used in subdivision (a) means the loss of time from work as a result of such exposure which precludes the performance of the employee's regular occupation." In Puckett v. Johns-Manville Corp. (1985) 169 Cal.App.3d 1010, 1017, the court rejected the contention that a temporary interruption of the plaintiff's regular employment constitutes the onset of "disability." Instead, the court held that disability, as used in section 340.2, refers "to a permanent termination of an individual's capacity to perform the tasks involved in his or her regular occupation . . . ." (Puckett v. Johns-Manville Corp., supra, at p. 1017.) The First District Court of Appeal, Division One, in Uram v. Abex Corp., supra, 217 Cal.App.3d at page 1431, cited Puckett with approval of its interpretation of the definition of disability in section 340.2.
The primary evidence Metalclad submitted to support the inference that Anderson was disabled was the claim he filed with his employer for workers' compensation benefits, and the application to the WCAB for adjudication of the claim. Neither of these documents contains any evidence that Anderson, even temporarily, lost time from work, or was precluded from performing his regular occupation. The trial court, apparently, was persuaded by the fact that Anderson, in his application to the WCAB for adjudication sought, inter alia, temporary or permanent disability benefits. A claim for temporary or permanent disability benefits, by itself, raises no inference that the claimant lost any time from work, or was precluded from performing his regular occupation, because eligibility for disability benefits does not require that the claimant have lost work time. In Uram v. Abex Corp., supra, 217 Cal.App.3d at page 1433, this court observed that "disability," as used in the context of section 340.2, " `was not intended by the Legislature to be construed in exactly the same way, for example, as it might be in workers' compensation law.' " In the context of workers' compensation, " n employee may receive permanent disability benefits even if he or she is not off work, and may even receive the benefits while working at the identical job held prior to the injury." (Scalice v. Performance Cleaning Systems (1996) 50 Cal.App.4th 221, 230, citing Truck Ins. Exch. v. Industrial Acc. Com. (1965) 235 Cal.App.2d 207, 212.) An employee may receive a permanent disability rating of 100 percent, and be entitled to disability payments even though able to return to work at the wages he received before the injury. (Universal City Studios Inc. v. Worker's Comp. Appeals Bd. (1979) 99 Cal.App.3d 647, 663.) Therefore, the mere fact that an employee has filed a claim for temporary or permanent disability benefits cannot, by itself, support the inference that the employee has lost time from work and is permanently precluded from the performance of the employee's regular occupation. (ยง 340.2, subd. (b).) If, in the workers' compensation benefits claim or application for adjudication, the employee specifies that the injury has
Page 1 2 3 4 5 6 7 8 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|