GQ Corner
Q: I have an injured employee who was injured as he was violating safety procedures. Can I deny the claim solely because the injured employee was in violation of safety procedures at the time of the injury?
A: No, under the workers’ compensation act, violation of safety procedure is not a defense to workers’ compensation benefits unless that activity is such that the employee has deviated from the course and scope of the employment. If the injury arose out of the and Claimant was furthering the affairs of the employer at the time, then this is probably compensable unless one of the affirmative defenses in Labor Code section 406.032 apply.
Q: Claimant reached statutory MMI on January 1, 2015. On February 1, 2015, Claimant received approval for an L5-S1 lumbar fusion to be performed on March 1, 2015. Does Claimant meet the criteria for an extension of the statutory MMI date?
A: No, Claimant does not meet the requirements in Labor Code section 408.104. According to section 408.104, the Claimant must have had the spinal surgery, or have been approved for surgery within 12 weeks before the expiration of the 104 week period. Because the approval came after the expiration of the 104 week period, Claimant would not meet the requirements in this circumstance.
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