LEGAL 143 WORKERS’ COMPENSATION Spring 2015. NOMENCLATURE ER / EE - employer / employee DOI – Date of Injury CT - Continuous Trauma TD / PD - Temporary

LEGAL 143 WORKERS’ COMPENSATION

Spring 2015

NOMENCLATUREER / EE - employer / employee DOI – Date of InjuryCT - Continuous TraumaTD / PD - Temporary Disability / Permanent DisabilityWCJ - Workers' Compensation Judge WCAB - Workers' Compensation Appeals BoardAOE/COE - Arising out of and in the course of employmentAA - Applicant's attorneyPTP - Primary Treating PhysicianAME/QME - Agreed Medical Evaluator / Qualified Medical EvaluatorAWW - Average Weekly WageMMI - Maximum Medical Improvement (same as P&S)P&S - Permanent and Stationary (same as MMI)

Legal Structure (not on final)

• WC is codified in the Labor Code (LC) and the California Code of Regulations (CCR) Title 8.

• WC is administered by the Department of Industrial Relations (DIR) which creates the Workers’ Compensation Appeals Board (WCAB) to adjudicate disputes.

Jurisdiction

• Exclusive Remedy: WCAB has exclusive jurisdiction over work injuries occurring in CA.

• Exceptions – EE can sue ER for damages for:– Serious and Willful Misconduct (LC4553.1); – Discrimination and harassment (Gov Code 12940(a));– Other (uninsured, breach of ER contract, etc.) – Civil award is credited against WC compensation.

Jurisdiction

• Third party liability:– EE can sue 3rd party, award is credited against WC.– ER can sue 3rd party for compensation (subro).

• Concurrent jurisdiction: WCAB has jurisdiction over out of sate injuries when employment K was made in CA or the out of state injured worker is regularly employed in CA. LC 5305.

BENEFITS AVAILABLE

• Medical benefits;

• Temporary disability;

• Permanent disability; and,

• Death benefits.

COMPENSABILITY

Basic Requirements (LC3600): • Injury; • AOE/COE (arising out of / in course of)• Not caused by alcohol or illegal drugs;• Not intentionally self-inflicted;• Not from altercation & EE initial physical aggressor;• Not caused by EE committing felony; • Not off-duty recreational, social or athletic activity; &,• Not a post termination claim.

COMPENSABILITY

• Injury– “Injury” is broadly defined (“Any injury or

disease arising out of employment”)

– Two types: • SI (Specific): particular incident;• CT (Continuous Trauma): over time.

COMPENSABILITY

AOE/COE• Going and Coming Rule: Going and

coming to work is not AOE/COE unless:–Special work related mission;–EE is paid for time going & coming; or–EE required to have an auto for use at

work.

COMPENSABILITY

Employee vs. Independent Contractor– “Employee” is define broadly as “every person in the

service of an ER under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed.” LC3352.

– There is a presumption of employment and the burden is on ER to show independent contractor using the “Borello Factors.”

COMPENSABILITY

• “Borello Factors” Borello v. DIR (1989) 54 CCC 80.

– Right of control (most important).– Distinct occupation or business– Normally done by specialists without supervision.– Special skill.– Provides own tools and place of work.– Length of time to perform services.– Method of payment (by the job vs by time).– Worker part of regular business of principle. – What the parties believe.

COMPENSABILITY

• Additional factors under LC2750.5(c): – Substantial investment in the business;– Holding out to be in business for one’s self;– Bargaining for contract for specific project;– Control over time and place of work;– Supplying tools beyond those given to EEs;– Hiring EEs;– Work not ordinarily part of ER’s work;– Holding a contractor’s license; and,– Intent of the parties.

COMPENSABILITY

Post Termination Defense

The post termination defense bars recovery if the claim is “filed after notice of termination or layoff, including voluntary layoff, and ... is for an injury occurring prior to the time of notice of termination or layoff." LC 3600(a)(10).

COMPENSABILITY


– Purpose: to protect the ER from retaliatory and fraudulent claims made by EEs who have been terminated or laid off.

COMPENSABILITY


• First, the ER has the burden to show:

– Claim was filed after the notice of termination or layoff; and

– Claim is for injury occurring before the time of notice of termination or layoff.

COMPENSABILITY

Post Termination Defense• Once ER meets initial burden, EE must show

one of the following:

– ER knew of injury before notice of termination;– Medical records exist before termination;– SI injury after notice of termination but before

the effective date of the termination; or,– CT or occupational disease and DOI is after

date of notice of termination or layoff.

COMPENSABILITY


• What is the DOI?– SI: Date of accident. LC5411.– CT: “Disability + Knowledge”. Date EE is

disabled and knew or should have known disability was caused by employment, or the last date of employment, whichever is earlier.

LC5412 & LC5500.5.

INITIAL PROCEDURE

1. Report: EE must report injury unless ER knows. 2. Within 1 day of report, if injury requires medical

tx or lost time, ER must give EE a claim form, refer to doctor, and notify of WC rights. LC5401.

2. With 14 days of receipt of claim form from EE, ER must accept, deny, or delay in writing. - A delay gives ER 90 days from receipt of claim form to accept or deny (“delay period”).- During delay period ER must pay tx up to $10k. - If ER fails to deny in 90 days, it’s accepted.

INITIAL PROCEDURE

• Denial must state reason. E.g: – Lack of medical support;– Employer level investigation found no injury;– Post termination defense;– Statute of limitations; – 6 month rule (psyche claims); or,– Good faith personnel action (psyche claims).

• Denial must be in good faith.

INITIAL PROCEDURE

• If Accepted: Carrier must pay benefits.

• If Denied: No benefits paid unless parties settle or court finds in favor of EE. – EE can request priority conference to address

compensability, where parties will either settle or set trial on AOE/COE.

APPORTIONMENT

- Apportionment means how much of a disability was caused by which injury (specific, CT, non-industrial).

- E.g.: Lumbar 30% WPI at 80% from CT, 10% from specific, 10% non-industrial.

CONTRIBUTION

• If more than one carrier covered CT period, they are jointly & severally liable.

• EE “elects” against one.• They can seek contribution from each other.• Percentage based on “last injurious year.” • E.g., CT period 5/5/11 – 1/1/14.

– What’s the last injurious year?– Hartford covered 292 days which is 83%.– Traveler’s covered 73 days which is 17%. – Judgment $100k. Who pays how much?

CONTRIBUTION

What if there are more than one CT injuries?

- Aetna Casualty and Surety Co. v. WCAB (Coltharp)(1973)38 CCC 720:– EE alleges 4 specific injuries and a CT. WCJ found no

specific injuries but 2 CT injuries separated by period of full recovery and no need for treatment.

2. Western Growers Ins. Co. v. WCAB (Austin) (1993) 58 CCC 323:– IW hospitalized in 1985. Released to work but stayed under a

doctor’s care and on medication. Got worse. In 3/87 could not work. WCJ found 1 injury because there was no full recovery.

DISCOVERY

• Depositions.

• Subpoenas (doctors, employers, etc.)

• Surveillance

• Document demand

• Motions to compel attendance, etc.

• Medical Records

• (No formal interrogatories, RFAs, IDs)

DISCOVERY

Medical Records

• Primary Treating Physician (“PTP): – EE designates PTP.– If claim accepted, carrier can require

treatment be within “Medical Provider Network” (MPN).

DISCOVERY

• AME/QME– These are neutral medical evaluators.– “AME” is Agreed Medical Examiner that

parties agree on. This supersedes the PTP because it is agree upon. But can be challenged by cross examination.

– “QME” is Qualified Medical Examiner. The WCAB issues a panel of 3 doctors, each side strikes a doctor, remaining doctor sees IW.

PSYCHE CLAIMS

• A claim for psychological injury is compensable if is for a mental disorder predominantly caused by actual events of employment. LC3208.3.

PSYCHE CLAIMS

“Predominant Cause”

Predominant cause means at least 51%.

PSYCHE CLAIMS

“Actual events of employment.” – Employment must play active role. How about:

• Angry customers at work?• Loss of stock value?• Change in commission structure?• Harassment by co-workers? • Misperception? • Oversensitive worker?

• Gossip about personal life?

PSYCHE CLAIMS

“ADD ONS”

• What if the psyche injury is predominantly caused by physical injury (aka, “add on”)?

– DOI before 1/1/13: Compensable

– Injury after 1/1/13: Not compensable.• Exception: Violence was “substantial

cause” (35%-40%) of the injury.

PSYCHE CLAIMS

DEFENSES

• Not an actual event of employment.

• Not the predominant cause.

• 6 month rule (must work 6 months);

• Good faith personnel action.

• Caused by physical injury (“add on”) and date of injury is 1/1/13 or later.

PSYCHE CLAIMS

6 MONTH RULE

• Only compensable if EE worked 6 months.

• Need not be continuous.

• Can include work after injury.

• Can time off work count toward 6 months?

• Exception: Sudden & extraordinary event.

PSYCHE CLAIMS

Good Faith Personnel Action Defense

• When ER raises this defense, courts must ask:– Actual events of employment? – Predominant cause? – Personnel acts (management)? – Lawful, non-discrimination, in good faith? – Were they a “substantial cause” (35% - 40%)?

Rolda v. Pitney Bowes, Inc. (2001) 66 CCC 241

PSYCHE CLAIMS

POST TERMINATION DEFENSE FOR PSYCHE CLAIMS

(LC 3208.3(e))

• Post Term Defense is same for psyche but does not apply if predom caused by:

– Sudden & extraordinary employment event (key factor: (foreseeability); or,

– Sexual or racial harassment.

JUDICIAL RULES RE COMPENSABILITY

• Breaks: Compensable if paid or on site. • Bunkhouse Rule: if EE resides on ER’s

premises, EE entitled to compensation for injuries sustained during the reasonable and anticipated use of those premises.

• Acts of God: Not compensable. • Compensable Consequences:

– Non-industrial injury aggravated by industrial injury;– Non-industrial injury that must be treated to help

resolve or treat an industrial injury.

STATUTES OF LIMITATIONS

Summary

- 30 Day: claim - 30 days of DOI.

- 1 year: Application - 1 year from DOI.

- 5 year: Petition to re-open for new and further injuries - 5 years from DOI.

STATUTE OF LIMITATIONS

30 Day SoL

EE must give written notice of injury within 30 days of DOI if it has caused a disability.

This is rarely enforced, because:

1. ER's awareness of injury is “notice”; and, 2. ER must show misled or prejudiced.

LC 5403.


• Latches

Claim can also be barred by the doctrine of latches if inexcusable delay caused prejudice to ER's defense of claim (e.g., inability to investigate effectively).


One Year Statute of Limitations

EE must file Application for Adjudication within 1 year of the later of the following:

(1) DOI; (2) Last payment of TD or PD; or (3) Last hospital or medical benefit.

LC 5405.


Five Year Statute of Limitations

If ER provides any benefits, EE has 5 years from DOI to claim "new and further" disability.

- Must involve a change in condition (new symptom, new body part, worsened symptom) from original injury.

LC 5410


• Tolling (delaying) the SoL

The SoL can be tolled if:

1. ER fails to post WC rights notice on wall;

2. ER fails to give WC right notice at time of hire;

2. ER fails to provide claim form; or,3. ER delays the decision.


SoL FOR DEATH CLAIMS (NOT ON FINAL)

• Application must be filed within 1 year of:– Date of death where death occurs within 1

year from DOI;– Date of last furnishing of benefits where death

occurs more than 1 year from DOI;– Date of death where it occurs more than 1

year after DOI and compensable benefits furnished.

MEDICAL BENEFITS

Summary

• ER must provide all medical expenses reasonably required to cure or relieve effects of injury.

- Includes travel, parking, wage loss, interpreter.

- No apportionment. ER must pay all treatment.

MEDICAL BENEFITS

Self Procured Medical Treatment

ER can be liable for self procured treatment (treatment before ER authorizes it) if:

- Emergency; - ER fails to provide care; - EE did not know injury was work related; or,- ER consents.

MEDICAL BENEFITS

UR and IMR

- UR = Utilization Review. Internal process by which carrier decides whether to authorize treatment.

- IMR = Independent Medical Review. Procedure for appealing a UR decision if the claim is accepted but certain treatment is denied. Must be filed within 30 days.

- IMR has 30 days to decide, or 3 days if serious threat.

MEDICAL BENEFITS

Appeal of IMR Decision

IMR decision can be appealed to WCAB within 30 days but only for technical grounds (fraud, conflict of interest, exceeding power, or clearly erroneous finding of fact on a non-expert issue), and the standard of review is clear and convincing, so the appeal is very hard to win.

MEDICAL BENEFITS

Non-Industrial Injuries

ER can be liable for medical costs of non-industrial injury if it was aggravated by an industrial injury or is necessary to cure, relieve, or prevent aggravation of industrial injury.

MEDICAL BENEFITS

PTP and STP

- EE must designate PTP who is responsible for managing care and issuing medical opinions. - EE can change PTPs anytime except after discharge from care without further treatment. - PTP can refer to STP (Secondary Treating Physician) for injuries outside PTP's field.- PTP must incorporate STP findings into PTP report, or STP report may be inadmissible.

MEDICAL BENEFITS

Medical Provider Network (MPN)

- If ER has MPN and gave notice at time of knowledge, ER can require that EE treat within MPN.

- If no MPN, ER can choose Dr. in 1st 30 days, then EE can select own doctor.

- EE can avoid MPN by pre-designating a PTP in writing to ER (Dr. must agree, & EE must have coverage).

- EE can obtain 2nd and 3rd opinions within MPN.- Either party can dispute PTP finding thru "Med-Legal.”

MEDICAL BENEFITS

Med-Legal

"Med-Legal" refers to a neutral medical evaluator, which is either an AME or a QME.

- AME: Parties can agree on Dr. Trumps PTP. - QME: Any party that objects to PTP report can ask WCAB for a QME panel of 3 doctors.

MEDICAL BENEFITS

Refusal of Treatment

ER can avoid liability for treatment if ER can show:

(1) ER made unequivocal tender of treatment; (2) EE refused treatment without good cause; (3) Risk of tx was inconsiderable in view of injury; and,(4) Tx would reduce the disability to a particular extent

LC 4056

TEMPORARY DISABILITY

Summary

TD has been judicially defined as "incapacity to work that is reasonably expected to be cured or materially improved with proper medical treatment." Chavira v. WCAB (1991) 56 CCC 631, 638.

In short: TD is payable when EE suffers a wage loss due to temporary industrial injury.

Its purpose is to help replace lost wages during the healing period.

TEMPORARY DISABILITY Duration of TD

TD payments terminate at the earlier of the following:

- 104 weeks from date first paid; - 5 years of DOI;

- MMI; - Discharge from care without further care needed; - Return to work with at least pre disability wages; or,- Death.

(Exceptions – not on final: for certain disabilities (amputations, severe burns, HIV, acute and chronic hepatitis B or C, high-velocity eye injuries, chemical burns to eyes, pulmonary fibrosis, chronic lung disease), it is 240 weeks from date first paid and within 5 years of date of injury.


What is MMI?

Maximum Medical Improvement, or “Permanent & Stationary” (P&S), meaning condition is “well stabilized and unlikely to change substantially in the next year with or without medical treatment."

CCR 9785(a)(8)

- When there are multiple body parts, some parts may become MMI before others, but EE is considered MMI when all body parts are MMI.


TTD versus TPD

- TTD (Temporary Total Disability): EE cannot perform any work, or can work modified work but none is available.

- TPD (Temporary Partial Disability): EE can do modified work & loses income as a result.


TD pay

- TTD is 2/3 AWW.

- TPD is 2/3 weekly wage loss.

- There is a minimum and maximum.

- Non taxable, so often winds up equivalent.


Calculation of AWW

- AWW is based on "time of injury" (date injury occurs).- AWW includes overtime, bonuses, and value of lodging,

fuel and advantages received for remuneration. - AWW is usually calculated by determining income in 12

months before time of injury and dividing by 52 weeks.

LC 4453.


Calculation of AWW

1. Full time (at least 30 hours & 5 days a week for 1 ER): days per week x daily earnings, or hours per week x hourly rate

2. 2 or more ERs: - If injury ER’s hourly pay is higher, add all pay. - If injury ER hourly pay is lower, multiply it by total weekly

hours

3. Irregular Pay: Weekly averaged out 1 year before DOI

2. Part time or when other methods inaccurate: best approach


Effect of Termination for Non-Injury Reasons

Cases differ, but generally, if ER can show termination was in good faith and modified work would otherwise be available, courts deduct the amount that would have been paid from the AWW to get a TD rate.


Odd Lot Doctrine

If EE can work modified duties but ER cannot accommodate, EE is TTD.

(The “odd lot” doctrine means the injury made it so EE can only do “odd jobs” but cannot work in general labor market).


Immigration Status

Immigration status does not affect rights to benefits except insofar as it affects the return to work.

- If EE becomes able to work full duties but ER learns in good faith EE is undocumented, TD can be denied.

- If EE can work modified duties and ER can provide them but learns in good faith EE is undocumented, TD can be reduced by amount of wages available.


Concurrent Injuries

If independent injuries result in concurrent periods of TD, the 104-week/5-year limitations likewise run concurrently. Foster v. WCAB (2008) 73 CCC 466, 472.


Disputes over TD

- If a dispute arises, parties can get WCAB order.- If WCAB orders TD, AA gets 15% from retro TD.- Once there is a TD order, ER cannot just

terminate without filing petition to terminate within 10 days of terminating, unless it’s for statutory time period.


Medical Determination of TD

- TD is initially determined by PTP.- If ER disagrees with PTP, ER has 20 days to object.- After objecting, ER can pay TD under reservation of

rights, request Med-Legal, and later request credit for TD overpayments (discretionary with WCAB).

- Failure to object will likely bar credit for overpayment.


Employment Development Department

If EE receives state disability or unemployment ER can either: (1) deduct that from TD after paying EDD, or (2) pay both and later request credit off PD.

Before settling, call EDD to find out the amount paid and the period paid.

PERMANENT DISABILITY

Summary

- PD is permanent loss of earning capacity

- A disability is permanent when MMI.

- PD of 70% - 99% allows a life pension.


How is PD Value Determined?

- Doctor uses AMA Guides to calculate a Whole Person Impairment (WPI) percentage for each body part.

- Pain can add up to 3% (must assign to a body part).

- It can be apportioned (e.g. 80% industrial).

- A LC formula adjusts each WPI for age & occupation, then combines into a total PD value for each injury.


Permanent Total Disability (PTD)

PTD is when PD is 100%. This is not common.

Under LC 4662, the following are conclusively presumed PTD:

(1) loss of both eyes or sight thereof; (2) loss of both hands or use thereof; (3) practically total paralysis; or (4) brain injury causing incurable mental incapacity or insanity.

Case law conflicts on whether presumed PTD can be apportioned.


PD Value

• The schedule under Labor Code 4660 is prima facie evidence of PD value but can be rebutted if explained away by a Doctor.

• Almaraz/Guzman: Set of cases holding if doctor finds the strict rating is not accurate, doctor can change it if they can give substantial evidence within "four corners" of AME Guides.


Examples of Almaraz/Guzman Increases Upheld

- AME gave 4% WPI for knee, increased to 20% due to impact on activities of daily living being more consistent with someone who had a knee replacement. City of Sacramento v. WCAB (Cannon) (2013) 79 CCC 1.

- AME found ankle's range of motion was normal and rated 1% WPI but increased to 10% by using the gait derangement rating because it caused EE to limp with upright activities and caused pain on bearing weight. Levy v. State of California DMV (2009).


Almaraz/Guzman Increases Not Upheld

- PTP gave lumbar 8% but increased to 23% because EE lost 25% of lumbar function, based on a survey filled out by EE and by a test of the ability to push/pull. WCAB held not substantial evidence because PTP relied only on subjective statements without testing lifting capacity. Leon v. RF Development & Busch Corp. (2011).

- AME gave 20% for knee but increased to 28% because of her work restrictions and loss of future earning capacity. Reversed because the strict rating already included an adjustment for diminished earning capacity. Hansen-Dillard v. Save Mart Supermarkets (2010).


Benson Analysis

If there are separate injuries (e.g., a CT and a SI), the injuries must be rated separately to get separate PD ratings. Their monetary values are added together.

This rule can be rebutted "when the evaluating physician cannot parcel out, with reasonable medical probability, the approximate percentages to which each distinct industrial injury causally contributed to the employee's overall permanent disability." Benson v. The Permanente Medical Group. (2007) 72 CCC 1620.


DEU Raters

Most WCAB locations have DEU (Disability Evaluation Unit) raters who rate medical reports for you. There are specific forms for this, and one form requests a “Ratings MSC” hearing.


Weekly Compensation Rates

- PD is paid on a weekly basis but comes every two weeks, just like TD.

- The weekly rates are based on a statutory formula with minimums and maximums.

- If you settle, it can be paid in lump sum.


Return to Work (RTW) Offer and 15% Bump

For injuries from 1/1/05 - 12/31/12, if ER has less than 50 EEs, if ER sends EE an official RTW offer (whether regular, modified, or alternative work) within 60 days of MMI date and for a one year period, and if EE does not accept, then PD payments are reduced by 15%. But if ER did not send RTW offer, PD payments increase 15%.

LC 4658(d)(2).


When PD Payments Commence

- ER must start PD 14 days after last TD payment, then every 2 weeks, until fully paid.

- If ER does not know amount of PD but it is likely PD will be owed, ER must estimate.

- If ER reasonably believes no PD will be owed, ER will not be penalized for non-payment.


Effect of Returning to Work

As of 1/1/13 (regardless of DOI), ER need not pay PDAs (PD Advances) if either of these occur:

(1) ER offers EE work that pays at least 85% of EE's pay at time of injury and EE does not accept; or,

(2) EE is working at a job that pays 100% of EE's pay at time of injury.

LC 4650(b)(2) (as a result of SB863)


PD Overpayments

- ERs may (discretionary with WCAB) get credit for PD overpayments.

- WCAB looks at whether it was good faith.

- E.g.: ER pays PD, but then the AME finds zero disability.

- E.G.: PTP report 5/1/14 says MMI on that date. ER stops TD and starts PD. Then on 8/1/14 an AME report says Applicant was MMI back on 3/1/14. ER overpaid PD from 3/1/14 – 8/1/14.

- ER may only take credit for PD overpayments by agreement or court order, not on its own.

VOUCHERS

If EE can work modified work and ER fails to offer such work within 60 days of termination of TD payments, EE is entitled to supplemental job displacement benefits in the form of a $6K "voucher" for continuing education.

The vouchers cannot be settled out.

LC 132a CLAIMS

Summary

ER may not discriminate against an EE due to a WC claim in any manner, such as terminating, threatening to terminate, reducing pay, etc., or may be liable for:

- 50% increase in compensation up to $10,000;- costs and expenses up to $250;- Reinstatement; • reimbursement for lost wages and work benefits; and,• Prejudgment interest on an award of back pay.

LC 132a CLAIMS

Business Realities Defense

If ER terminates EE after a claim is made, ER has the burden of proving the action was necessary and in good faith by showing ER reasonably believed, based on substantial medical evidence, that EE could not perform duties of position without undue risk of injury, or that ER reasonably believed EE will be disabled for so long that termination is necessary.

DEATH BENEFITS

Summary

• If EE dies as a result of an industrial injury, ER’s liability for TD or PD terminates (LC 4700), but ER remains liable for:– Accrued and unpaid compensation due at time of

death (LC 4700);– Burial expenses (LC 4701a);– Statutory death benefit (LC 4702); and,– Other benefits for dependent children (LC 4703.5).

DEATH BENEFITS

Procedure• dependent must file a claim and prove EE

died due to an industrial injury. • Burden of proof is reduced if the cause of

death is unknown. • WCAB can order an autopsy, and, if

necessary, to exhume the deceased employee's body.

DEATH BENEFITSDependent

- A dependent is either a good-faith member of EE’s household or family, or a specified relative by marriage, blood or adoption.

- Dependents must prove dependence on the deceased EE either through a conclusive presumption of total dependency (LC 3501) or a showing of actual dependency in accordance with the facts as they existed at the time of the injury (LC 3502).

- If EE dies without leaving any dependent, ER must pay death benefits to the Department of Industrial Relations.

PENALTIESTypes of Penalties

- ER Discrimination (LC 132a);- Unruly Behavior in Litigation and Claims Handling (LC 5813);- 10% increase for untimely payment of indemnity (LC 4650);- 15% increase for untimely pay to medical provider (LC 4603.2(b);- Up to 25% for unreasonable delay in benefits (LC 5814);- ERs who habitually pay benefits late (LC 5814.6);- Recklessly or intentionally helping cause injury (50% increase or

reduction) (LC 4553, 4551)- 50% increase if EE is under 16 and not hired in good faith (LC

4557); or,- 10% increase for ER’s willful failure to pay compensation (LC 4554).

DISCOVERY

Summary

Under 8 CCR 10109, ER must conduct a reasonable and timely investigation upon receiving notice or knowledge of an injury or claim for WC benefit as needed to determine and timely provide each benefit, if any, that may be owed EE.

DISCOVERY

• Investigation must include:– AWW– The employer’s position– Whether medical benefits are owed– Whether proper notice of WC rights was given– Whether TD or PD is owed– Medical records– Defenses

DISCOVERY

• Methods of Discovery (not exhaustive list)– Depositions– Document Demands– Subpoenas (medical, work, witnesses, etc.)– Med-Legal (AME/QME)– Interrogatories to Doctors– Interviews– Public Records (police reports, etc.)– Internet– Surveillance

DISCOVERY

• Scope of Discovery– Governed by Labor Code (LC 5307). – WCAB not subject to CCP or EC.– Liberal policy allowing discovery.– Atty Client/work product privilege is honored.– Right to privacy is upheld (HIPAA, etc.)

• Insurer can only disclose to ER medical info that is related to diagnosis or treatment of the work injury, and info re modified work duties. (LC 3762(c))

DISCOVERY

• Timing of Discovery– WCAB has jurisdiction over discovery only

after filing of Application for Adjudication.– If only a claim form is filed, there can be no

compelled discovery (depositions, subpoenas, hearings). But documents can be requested and parties can agree on discovery.

– Docs not produced at MSC can be excluded.

DISCOVERY

• Hearsay– Hearsay is admissible, but only when best calculated

to ascertain the substantial rights of the parties. It is the judge’s discretion. Skip Fordyce, Inc. v. WCAB (Barry) (1983) 48 CCC 904, 912.

– E.g.: Supervisor could not appear due to illness. ER asked to take depo or introduce statement. Denied:

• EE had right to cross-examine;• WCAB requires opportunity to observe lay witnesses on

direct and cross; and,• Testimony was not found to be crucial to the case.

City of Redondo Beach v. WCAB (Gates) (2002) 67 CCC 1345 (writ denied).

DISCOVERY

• Can ER attend Deposition of EE?– Generally yes. – EE waives right to privacy by filing claim. – But EE can request a protective order

excluding ER if ER’s presence would cause unwarranted annoyance, embarrassment or oppression. E.g., psychiatric issues caused by the manger’s abuse.

SETTLEMENT

• Summary– There are two types of settlement:

(1) Stipulation and Award: Admits liability and leaves future medical treatment open unless waived; or,

(2) Compromise & Release (“C&R”): Resolves everything including future treatment.

SETTLEMENT

• Why a Stipulation & Award?– EE may want future treatment open.– Parties may not agree on the settlement value

of future treatment.

SETTLEMENT

• Why Compromise & Release?– EE usually gets more money.– Usually lump sum, not commutation (weekly). – If EE still works for ER, a C&R could mean

ER pays twice for future treatment if EE re-opens for “new and further.”

– ER wants to resolve the entire matter.

SETTLEMENT

• EDD– Defense should always call EDD to find out

how much state disability (if any) was paid, for what period of time, and at what rate.

– If ER paid TD during any period that EDD paid, that is a TD overpayment. Deduct it.

SETTLEMENT

• Medicare Set Aside (MSA)– Medicare is a secondary payer (only liable when

noone else is), so WC settlement must consider Medicare's interest.

– If EE is over 60, an MSA may be required. – An MSA is an agreement allocating a portion of the

settlement in trust for future medical care.– If their interests are not protected, Medicare can

come after ER for payment or can refuse to give EE care.

LITIGATION

• Summary– Application (like a complaint)– Answer (optional in WC)– Declaration of Readiness (DOR) – Petition (like a motion)– Status Conference– MSC (mandatory settlement conference)– Priority or Expedited MSC– Settlement or Trial– Lien Conference

LITIGATION

• DOR and Petition– Both are like a motion– DOR asks for a hearing and usually is filed

when a party believes case is ready for trial. – Petition does not ask for a hearing but only a

WCAB decision and is usually for procedural matters (sanctions, order to compel, etc.)

– A petition can be accompanied by a DOR.– DOR must state an was made to resolve

LITIGATION

• Types of Hearings a DOR can request– Status Conference (informal, usually re discovery).– MSC (usually when ready for trial)– Ratings MSC (to get a rating of reports)– Priority Conference (only for denied claims; regards

AOE/COE or employment)– Expedited Hearing (regards treatment, TD, MPN,

Med-Legal, or where 2+ ERs dispute who is liable). – Lien Conference

LITIGATION

• Responses to DOR or Petition– If a party files a DOR and the other party feels

the matter is not ready for trial (most often because more discovery is needed), they must file an objection within 10 days (plus 5 if the DOR was served by mail).

– An answer to a Petition is not required.

LITIGATION

• MSC– One side wants trial, other agrees or opposes.

– Applicant must appear at MSC. – If parties can’t settle, trial will be set if judge

agrees the matter is ready for trial. – All evidence must be exchanged at MSC or

can be excluded from trial. – ER must bring benefits printout to MSC.

LITIGATION

• Rating MSC

– A ratings MSC is when a WCAB’s raters rate the medical records submitted so the parties can attempt to determine what PD is owed.

– If parties don’t settle, judge can set an MSC.

LITIGATION

• Trial– WCJ hears testimony and admits evidence.

– Medical records are admissible if they have sufficient enough to constitute substantial evidence and are either Med-Legal reports, PTP reports, or reports the PTP incorporated.

– If WCJ orders compensation, it’s a “Findings & Award,” otherwise it’s a “Findings & Order.”

LITIGATION

• Liens– Liens are filed by those who provided services to EE

(doctors, interpreters, pharmacies, transportation services, EDD, etc.).

– Most liens are against ER, not EE.

– Some liens are “liens against compensation” (e.g., child support and AA’s attorney fees).

– ER must pay medical liens only if services were necessary to cure or relieve a compensable injury.

LITIGATION

• When are liens resolved?

– Liens against compensation must be resolved before the case settles.

– Other liens are usually resolved after the claim (“case in chief”) is resolved.

LITIGATION

• Procedure for liens– Before settlement, ER must make a good faith

effort to resolve all liens.– After the “case in chief” is resolved, ER serves

final documents on all lien claimants.

– Lien claimants file DOR for a lien conference.

– At lien conference, parties settle or set trial.

APPEALS

• File w/in 20 days from service of decision

• First Level of Appeal:– Petition for Reconsideration: Appeal of a

final order, to WCAB commissioners. Stays all further actions of WCJ.

– Petition for Removal: Appeal of an interim order, to WCAB.

(If you’re not sure, call it both (“petition for reconsideration and/or removal“).

APPEALS

• Second Level of Appeal

– Decision on Petition for Reconsideration is appealed by way of Writ of Review to the California Court of Appeal. 45 day deadline.

– Decision on Petition for Removal is appealed by way of Writ of Mandate to Superior Court.

APPEALS

• Third Level of Appeal

– The third level is to California Supreme Court. 10 days after decision becomes final (which is in 30 days), so essentially you have 40 days.

– After that, the only option is to request U.S. Supreme Court review, but only if it involves a federal issue.

APPEALS

• Grounds for Petition for Reconsideration– WCJ acted in excess of powers;– Decision was procured by fraud; – Evidence does not justify findings of fact;– Petition found new material evidence that he

or should could not with reasonable diligence have found and produced at hearing; or,

– Findings do not support the Decision.

LC 5903

Form Assignments

1. Intake sheet2. DWC-1 and Application3. Request for QME4. Petition for 5150 fees5. DOR for expedited hearing6. Summary of an MMI report7. Pre Trial Conference Statement8. Trial Brief9. Compromise and Release10. Stipulation with Request for Award

Documents

LEGAL 143 WORKERS’ COMPENSATION Spring 2015. NOMENCLATURE ER / EE - employer / employee DOI – Date of Injury CT - Continuous Trauma TD / PD - Temporary