CALIFORNIA WORKERS' COMPENSATION CLAIM HANDLING GUIDELINES
- 1 INTRODUCTION
- 2 COURSE OF EMPLOYMENT
- 3.1 Specific and cumulative injuries
3.2 Psychological/Psychiatric Injury
- 3.2.1 Psychiatric Injuries Caused by Lawful, Nondiscriminatory, Good Faith Personnel Actions Are Not Compensable
- 3.2.2 Psychiatric Injuries That Arise Out of Physical Injuries
- 3.2.3 Sudden and Extraordinary Events of Employment
- 3.2.4 Post-Termination Claims, Other than Psychiatric Claims
- 3.2.5 Exacerbation and Aggravation
- 3.3 Affirmative Defenses
- 3.4 Death Benefits
- 4 MEDICAL TREATMENT
- 5 CLAIM RESOLUTION
- 6 LIENS AND OTHER RECOVERABLE COSTS
7 APPEALS AND FURTHER PROCEEDINGS
- 7.1 Procedures for judicial review
- 7.2 Grounds For Judicial Review
- 7.3 Ancillary Matters
- 7.4 Workers compensation discrimination claims under §132A
- 7.5 Arbitration
- 7.6 Dismissal for failure to appear (Applicant's Claim And Lien Claims)
- 7.7 Dismissal for lack of prosecution
Worker’s compensation law in California originated with the Boynton Act of 1913, which mandated that employers carry insurance for industrial accidents. Shortly thereafter, the California legislature enacted the 1917 Workmen’s Compensation Insurance and Safety Act, which more closely resembles the modern system. The 1917 Act imposed liability without regard to employer negligence, which virtually eliminated the need for employees to file civil suits against their employers for compensation. Under what is currently known as the exclusive remedy rule, if conditions for the payment of workers’ compensation are present, the employee is limited to the recovery of compensation as their sole remedy. Cal. Lab. Code §3602.
Liability under workers’ compensation law differs from traditional tort liability in several key areas. First, workers’ compensation insurance is compulsory and statutorily required to be carried by all employers within the state. Second, liability is determined primarily on whether the injury arose from or occurred in the course of employment, without regard to fault or negligence, which are key elements of tort actions. Third, workers’ compensation has much more expeditious methods for resolving claims as compared to the process for resolving tort claims in civil court. This increased efficiency is attributable to the narrower scope of workers’ compensation law (as opposed to the broad and often complex field of tort law), as well as a system of Workers’ Compensation Appeals Boards designed to resolve these specific disputes.
COURSE OF EMPLOYMENT
Almost everyone who renders a service as an employee to another may receive workers' compensation benefits if he or she sustains an industrial injury while rendering that service. To be entitled to benefits under this program, the person rendering the service must be an “employee” of an “employer,” as those terms are defined by California workers' compensation law.
Any person rendering service for another, other than as an independent contractor, or unless expressly excluded by the Code, is presumed to be an employee for purposes of workers compensation. Cal. Lab. Code §3357.
The term “employer” is defined to include: (1) State of California and every State agency; (2) each county, city, district, and all public and quasi-public corporations and public agencies therein; (3) every person including any public service corporation, which has any natural person in service; and (4) the legal representative of any deceased employer. Cal. Lab. Code §3300.
The Labor Code specifically excludes the following from the definition of employer: (1) any person while acting solely as the sponsor of a bowling team; or (2) any private, nonprofit organization while acting solely as the sponsor of a person who, as a condition of sentencing by a superior or municipal court, is performing services for the organization. Cal. Lab. Code §3301.
Additionally, under the case of An Independent Home Support Service, Inc. v. Superior Court of San Diego County, 71 Cal. Comp. Cases 1779 (2006), domestic service agencies that refer people for in-home care services are not considered employers if they comply with Cal. Civ. Code §1812.5095(b)(1)-(9) and 1812.5095(f).
According to Cal. Lab. Code §3351, "employee" includes every person in the service of an employer (as defined above) under any appointment or contract of hire or apprenticeship, express or implied, oral or written, and whether lawfully or unlawfully employed
Minors and undocumented aliens can be considered employees. The case of Farmer Brothers Coffee v. W.C.A.B. (Ruiz), 70 Cal. Comp. Cases 1399 (2005) provides a substantial discussion on the meaning of “unlawfully employed” as it relates to undocumented aliens, and holds that they fall within the scope of the statute as employees.
Elected and appointed paid public officers are considered employees. Cal. Lab. Code §3351(b)
Officers and directors of quasi-public or private corporations are generally considered employees. However, if such officers and/or directors are the sole shareholders of the corporation, they must elect to opt-in to compensation liability under Cal. Lab. Code §4151. Cal. Lab. Code §3351(c). These same rules apply to people providing non-managerial services who are also general partners or managers of partnerships and limited liability companies. Cal. Lab. Code §3351(f). People who have power to revoke a trust which holds interests of a corporation, partnership, or limited liability company are deemed ‘shareholders’ and must elect to opt-in to compensation liability under §4151. Cal. Lab. Code §3351(g).
Any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of such owner or occupant are considered employees. Cal. Lab. Code §4151(d). There is an exception where the person is employed in such a fashion for less than 52 hours or who earned less than $100 in wages during the 90 days immediately preceding the date of the injury. Cal. Lab. Code §3352(h).
A person who provides in-home care (as defined in Cal. Wel. & Inst. Code §12300) to the resident/owner of a dwelling shall be considered an employee of that resident if payments for these services are made directly from the state or county. Cal. Lab. Code §3351.5(b)
Prisoners in state facilities who are engaged in assigned work or working under contract are considered employees. Cal. Lab. Code §3351(e)
Any person whose employment training is arranged by the State Department of Rehabilitation with any employer is considered an employee for purposes of workers compensation, and the department shall bear any additional workers compensation premium expenses incurred by the employer under this section. Cal. Lab. Code §3351.5(a).
The definition of employee also includes any person contracted for a specifically ordered or commissioned work of authorship in which the parties expressly agree that the project is a work made for hire, and the ordering party obtains all of the rights in the copyright of the finished work. Cal. Lab. Code §3351.5(c).
The case of Laeng v. W.C.A.B., 37 Cal. Comp. Cases 185 (1972) has a substantial discussion on the status of job applicants as employees, and held that a person who is merely "trying out" for a job, and who is injured while trying out or taking a performance test for the job may be considered an employee for the purposes of the Workers' Compensation Law, even though he or she is not hired, if the "tryout" is potentially hazardous.
The falsification of an application for employment does not preclude workers compensation benefits, because the program is designed to compensate the injuries suffered by the person actually rendering service. In Hunt-Wesson Foods, Inc. v. W.C.A.B. (Echeverria), 48 Cal. Comp. Cases 878 (1983) (writ denied), a laborer, injured thirty-eight hours after being hired, was granted benefits even though, when he applied for employment, he falsified his true identity. The Board held that inasmuch as the employee was performing beneficial services for his employer at the time of his injury, benefits were payable regardless of the falsification.
Volunteers are not considered employees for workers compensation purposes. Under Cal. Lab. Code §3352(i) “any person performing voluntary service for a public agency or a private, non-profit organization who receives no remuneration for the services other than meals, transportation, lodging, or reimbursement for incidental expenses” is not considered an employee
However, one must be aware of the nature of the arrangement – if services are being ‘volunteered’ in exchange for anything of value, the service is not truly gratuitous in nature. See Remillard v. W.C.A.B., 56 Cal. Comp. Cases 342 (1991) (unpublished), where a father was performing thirty hours of labor at a parochial school as part of an agreement to pay for the balance of $300.00 of his son's yearly schooling. While using a shovel provided by the school, the father injured his left leg. The Judge found that the presumption of employment arising under Cal. Lab Code §3357 and 3352(i) did not apply because the father was performing mandatory service under his contract with the school.
Refer to Cal. Lab. Code §3352 for a full list of statutory exclusions from the definition of employee.
Independent contractors are generally not considered employees of the entities engaging their services, and thus no employment relationship exists.
An independent contractor is defined as: "any person who renders service for a specialized recompense for a specified result, under the control of his principal as to the result of his work only, and not as to the means by which such result is accomplished." Cal. Lab. Code §3353.
However, the parties in this situation may agree to treat their agreement as that of an employer-employee relationship by making an election under Cal. Lab. Code §4151, which states: “when an employer has in his or her employment any person not included within the term 'employee' as defined by Article 2 of Chapter 2 of Part 1 of this discussion, or a person not entitled to compensation under this division, such employer and such person employed by him or her may, by their joint election, come under the compensation provisions of this division in the manner hereinafter provided." If an employer elects to include an otherwise "independent contractor" under its workers' compensation insurance policy, that election does not affect the status of that contractor for legal purposes other than workers' compensation matters. Cal. Lab. Code §4157.
Once an injured person presents proof that he or she, at the time of injury, was actually performing service for an alleged employer, the burden shifts to the alleged employer to prove that the person was an independent contractor and therefore not within workers’ compensation. Cal. Lab. Code §3357. See also Truesdale v. W.C. A.B., 52 Cal. Comp. Cases 94 (1987).
The finding of an employment relationship becomes binding once the time for review or rehearing passes. Cal. Lab. Code §5804.
General And Special Employees
If an employer loans an employee to another person but still retains some control over the employee, a "general" and "special" employment relationship results. The original employer is called the general employer and the person to whom the employee is loaned is called the special employer. If at the time of an injury both the general and special employer exert some measure of control, but not necessarily complete direction and control, over the injured employee through their respective foremen or employees, both are liable to the injured employee. See Ridgeway v. I.A.C., 20 Cal. Comp. Cases 32 (1955).
In Santa Cruz Poultry Inc. v. The Superior Court of Santa Cruz (Stier), 52 Cal. Comp. Cases 429, 194 Cal. App. 3d 575 (1987), where a temporary employee was assigned to an employer (SCP) by an agency and that employer had supervision and control over the employee's job duties, the employee was held to be in a special employment relationship with the employer as a matter of law, making that employer liable for workers compensation.
Arising out of employment (AOE) and Occuring in course of Employment (COE)
Once it is established that a valid employment relationship exists, for an injury to be compensable under California workers’ compensation law, the injury must arise out of the employee's employment (AOE), AND must occur in the course of the employee's employment (COE). Cal. Lab. Code §3600.
Arising out of Employment
For an injury to be considered AOE, the injured employee must prove a causal connection between their employment and the injury. See Employers Mutual Liability Insurance Co. v. I.A.C., 18 Cal. Comp. Cases 286 (1953). The injury must "occur by reason of a condition or incident of the employment." See Reyes v. Hart Plastering et al., 70 Cal. Comp. Cases 223 (2005).
This does not necessarily require that the employee suffer the injury while at their place of employment, but can include injuries suffered while enjoying a benefit of their employment. See Duncan v. W.C.A.B., 49 Cal. Comp. Cases 39 (1983), in which a salaried employee who was injured during an unscheduled but authorized break was found to be entitled to workers’ compensation
The causal connection leading to a finding of AOE is often liberally construed. For example, see Los Angeles County Metropolitan Transit Authority et al., v. W.C.A.B. (Hale), 62 Cal. Comp. Cases 72 (1997), where a bus driver who sustained an injury as a result of being beaten by her ex-husband when she was on a layover between duties, and where her ex-husband used his knowledge of her routes and layovers as part of a scheme to confront and injure her at an isolated location. The Board here concluded that this scenario qualified as AOE, since the bus driver’s planned layover was a routine part of her employment through which the ex-husband assaulted her.
Generally, injuries due entirely to an act of nature (e.g., an earthquake) have been held non-compensable. There is an ‘intervening cause’ exception to this general rule, however; if but for the intervention of human agency, such an act of would not have caused injury to the employee, then the injury is compensable. A case illustrating this is Patterson v. Smith & Spears, 18 Cal. Comp. Cases 240 (1953), in which an employee was requested to live on the hotel premises, and was injured when a portion of the hotel collapsed in an earthquake. Even though the building was constructed and maintained in accordance with the building code of the time, workers’ compensation is not determined by the care exercised by an employer. Thus, the injury was found to be compensable, since the employer’s request that the employee stay at the hotel lead to that employee’s injuries in the earthquake.
Spontaneous injuries resulting from normal bodily movements are typically not compensable. In Luera v. W.C.A.B., 59 Cal. Comp. Cases 768 (1994), an assistant store manager injured her right foot as she walked down a store aisle in a regular manner. It was later discovered that she suffered from a diabetic problem. A doctor had supported her initial claim and found she had disability in the foot due to her industrial injury. The Board, in denying benefits, stated that spontaneous sprains or fractures resulting from normal body movements are not compensable, and neither are disabilities due to inherent defects or congenital conditions rather than external causes.
For more examples of the scope of AOE findings, see City of Farmersville v. W.C.A.B. (Thompson), 62 Cal. Comp. Cases 54 (1997) (finding that health complications from alcoholism resulting from a stressful job qualifies as AOE); or see Ballard v. W.C.A.B., 36 Cal. Comp. Cases 34 (1971) (holding that if the proper use of medications prescribed by an authorized treating physician causes an applicant to become addicted to the medication, the employer must treat the addiction).
Occurring in the Course of Employment
The course of employment is comprised of both duties related to employment and the time and space reasonably necessary to carry out those duties. Maher v. W.C.A.B., 48 Cal. Comp. Cases 326 (1983). In California, the standard for “course of employment” is substantially broader than the “scope of employment” typically used for vicarious liability in tort actions. For a detailed discussion on this legal distinction, see Church v. Arko, 42 Cal. Comp. Cases 1219, 75 Cal. App. 3d 291 (1977).
It is not necessary that an employee’s actions be motivated by a desire to further their employer’s interests to be within the course of employment. As an example, injuries resulting from horseplay at work (which cannot be said to further an employer’s interests) are compensable if it is found that such behavior was condoned by the employer. Argonaut Ins. Co. v. W.C.A.B. (Helm), 32 Cal. Comp. Cases 13 (1967).
An employee pursuing dual objectives of personal gain and employment performance is within the course of employment, so long as they are acting in some minimally related employment function. Mitchell v. Hizer, 42 Cal. Comp. Cases 884 (1977).
There are some limits on the course of employment. An employee’s conduct that is especially removed from their employment-related duties may be deemed “serious and willful misconduct” under Cal. Lab. Code §4551. Cal. Lab. Code §3600(a)(8) also expressly denies compensation for injuries caused by the commission of a felony for which the worker was convicted.
In general, an injury suffered by an employee who is going to or returning from their place of work is non-compensable. This is known as the “going and coming rule.” City of San Diego v. W.C.A.B. (Molnar), 66 Cal. Comp. Cases 692 (2001). There are a few exceptions to this rule; if the employee’s transportation is provided (or contributed to) by the employer, or if the employee is on a special errand (discussed below) for the employer, then the going and coming rule does not apply. Kobe v. I.A.C., 15 Cal. Comp. Cases 85 (1950).
Under the “special errand doctrine,” an employee remains in the course of employment, whether going to or coming from work, for as long as they are performing the errand. To be considered a special errand, the task must be extraordinary in relation to the employee’s day-to-day activities, within the course of the employee’s employment, and undertaken at the employer’s request. City of San Diego v. W.C.A.B. (Molnar), 66 Cal. Comp. Cases 692 (2001). If the employee substantially deviates from the given task, any injuries suffered during this deviation may be non-compensable. O'Connor v. W.C.A.B., 55 Cal. Comp. Cases 151 (1990).
Employees must sometimes travel on behalf of their employers, and the “commercial traveler doctrine” treats the entire trip as a continuous special errand, meaning that the employee is within the course of employment during the entire period of their travel, except when a distinct departure can be established. The period of time begins when the journey is undertaken and continues until the employee returns to their place of business or home. Lockheed Aircraft Corp. v. I.A.C. (Janda), 11 Cal. Comp. Cases 209 (1946).
The Legislature defines "injury” broadly.
Labor Code §3208 states:
"Injury" includes any injury or disease arising out of the employment, including injuries to artificial members, dentures, hearing aids, eyeglasses and medical braces of all types; provided, however, that eyeglasses and hearing aids will not be replaced, repaired, or otherwise compensated for, unless injury to them is incident to an injury causing disability.
Specific and cumulative injuries
There are two types of injuries that the Legislature has provided for, specific injuries and cumulative trauma injuries.
Cal. Lab. Code §3208.1 states:
An injury may be either:
(a) "specific," occurring as the result of an incident or exposure which causes disability, or need for medical treatment, or
(b) "cumulative," occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment. The date of a cumulative injury shall be the date determined under Cal. Lab. Code §5412.
An industrial injury may be defined as an injury, illness, and/or disease and other medical conditions incurred by an employee in the course of his or her employment and which arises out of the employment (AOE/COE). Injuries to artificial members, dentures, hearing aids, eyeglasses, and medical braces of all types are also considered industrial injuries. However, eyeglasses and hearing aids will not be replaced, repaired, or otherwise compensated for, unless injury to them is incident to an injury causing disability to an employee. Cal. Lab. Code §3208.
A "compensable injury" is one which causes disability or need for medical treatment. A "compensable injury" within the exclusive remedy provision of the Workers' Compensation Act is one which causes disability or need for medical treatment, and thus is injury to a worker's person, as opposed to his or her property, but does not necessarily involve a physical injury or disability and may even be a mental injury. Coca Cola Bottling Co. of Los Angeles v. Superior Court (Jones) 56 Cal. Comp. Cases 561 (Published).
In order for a disease or condition to be considered as industrially caused, the employment need not be the sole cause of the disease or condition. If the employment is partially responsible (as little as 1 percent except for psychiatric injuries where there is a minimum 50+ percent threshold) for the disease or condition, the employee is entitled to workers' compensation benefits.
An employer takes an employee as he finds him or her at the time of hire. Therefore, when the employee at the time of hire has a pathological condition and the employee's work thereafter, when combined with that condition, causes disability or need for medical care, the employer has a duty to provide workers' compensation benefits. Argonaut Ins. Co. v. I.A.C. (Harries) (1964) 29 Cal. Comp. Cases 279 (Published).
An employee suffering from a pre-existing disease or condition who is disabled by an injury proximately arising out of, and occurring in, his or her employment, is entitled to workers' compensation benefits even though a normal person would not have been adversely affected by the industrial event. Adminco v. W.C.A.B. (1974) 39 Cal. Comp. Cases 845 (Published).
Further, to be compensable, an injury need not be of a kind peculiar to the employment. See City of Turlock v. W.C.A.B. (2007) 72 Cal. Comp. Cases 931 (Unpublished), where the Court of Appeals, Fifth District, upheld a Board decision finding applicant’s Hepatitis C arose out of his employment, where the applicant’s QME expressed the opinion that Hepatitis C is transmittable via human waste and raw sewage, to which the applicant was exposed as a utility maintenance worker.
The California Supreme Court in Madin v. I.A.C. (Richardson) (1956) 21 Cal. Comp. Cases 49, in observing that the employment incident giving rise to the injury need not be the kind of injury anticipated by the employer or peculiar to the employment.
An industrial injury may be either:
1. Specific: occurring as the result of one incident or exposure which causes disability and/or need for medical treatment; or
2. Cumulative: that is, occurring as repetitive, mentally or physically traumatic or stressful activities extending over a period of time, the combined effect of which causes a disability and/or need for medical treatment. Cal. Lab. Code §3208.1
Apportionment of Disability
If the Board or a Judge finds the existence of cumulative injury or occupational disease, liability for such cumulative injury or occupational disease cannot be apportioned to prior or subsequent years. However, in determining such liability, evidence of disability due to specific injury, nonindustrial causes, or previously compensated for by way of a Findings and Award or order approving compromise and release, or a voluntary payment of disability, may be admissible for purposes of apportionment. Cal. Lab. Code §5500.6
Combined Injuries Require Separate Determinations
Cal. Lab. Code §3208.2 provides:
When disability, need for medical treatment, or death results from the combined effects of two or more injuries, either specific, cumulative, or both, all questions of fact and law shall be separately determined with respect to each such injury, including, but not limited to, the apportionment between such injuries of liability for disability benefits, the cost of medical treatment, and any death benefit.
How injuries may be specific, cumulative, or both, can be found in the decision by the Court of Appeals, Fifth District, in Western Growers Ins. Co. v. W.C.A.B. (Austin) (1993) 58 Cal. Comp. Cases 323 (Published)
Psychiatric injuries are treated differently than other forms of injuries and are not compensable unless the employee demonstrates, by a preponderance of the evidence, that the actual events of the employment were responsible for at least 51 percent of the total causation from all sources contributing to the psychiatric injury. Cal. Lab. Code §3208.3 The employee must have been employed for at least six months (need not be continuous employment and need not have worked six months if the psychiatric injury is caused by a sudden and extraordinary employment condition as distinguishable from a regular and routine event), and the psychiatric injury must be diagnosed pursuant to Cal. Labor Code §139.2 guidelines.
Psychiatric Injuries Caused by Lawful, Nondiscriminatory, Good Faith Personnel Actions Are Not Compensable
Compensation cannot be paid if an employee's psychiatric injury was substantially caused by a lawful, nondiscriminatory, good faith personnel action. Cal. Labor Code §3208.3(h)(i). For psychiatric injuries to be denied compensability, an employer must establish that the personnel actions substantially causing the injuries were:
1. "Personnel actions" within the meaning of §3208.3;
2. The actions were taken in "good faith" as that term is interpreted by our California Supreme Court
3. The actions were "lawful and nondiscriminatory"; and
4. The actions were a "substantial cause" of the employee's psychiatric conditions.
Psychiatric Injuries That Arise Out of Physical Injuries
Psychiatric claims of injury can arise out of a purely physical injury. The six months limitation set forth in Cal. Labor Code §3208.3(d) applies to all claims for psychiatric injuries that arise out of a physical injury. Likewise, psychiatric injuries that arise from a physical injury also require the higher predominant threshold for compensability
Sudden and Extraordinary Events of Employment
If the employment event that results in an employee sustaining a psychiatric injury the six month employment requirement is waived. The word sudden may be referred to as having occurred unexpectedly, abruptly, without warning, unforeseen, quickly, or hastily. The word extraordinary may be referred to as remarkable, unprecedented, inconceivable, bizarre, amazing, uncommon, unusual, rare, totally unexpected or out of the ordinary. The work injury must be both. The events of employment that must now exist for a psychiatric injury to be industrially caused must be a direct consequence of the employee's work.
Post-Termination Claims, Other than Psychiatric Claims
All claims, not just psychiatric, must meet the requirements of Cal. Lab. Code §3600(a)(10).
Where the claim for any compensation (except psychiatric injuries) is filed after notice of termination, including voluntary layoff, and the claim is for an injury occurring prior to the time of notice of termination or layoff, no compensation can be paid unless the employee demonstrates by a preponderance of the evidence that one or more of the following conditions apply:
(a) The employer had notice of the injury as provided under Chapter 2 (commencing with §5400), prior to the notice of termination or layoff.
b) The employee's medical records, existing prior to the notice of termination or layoff, contain evidence of the injury.
(c) The date of injury, as specified in §5411, is subsequent to the date of the notice of termination or layoff, but prior to the effective date of the termination or layoff.
(d) The date of injury, as specified in §5412, is subsequent to the date of the notice of termination or layoff Cal. Labor Code §3600(10).
Exacerbation and Aggravation
An employee who has sustained an industrial injury may encounter additional problems to the same part of the body. A question may arise as to whether the new problem is a recurrence or an exacerbation of the old injury, or is a new injury which may or may not have aggravated the old injury.
An exacerbation may be described as an increase in the severity of any symptoms or diseases. It has also been described as a turning for the worse, or an increase in the severity of symptoms or of a disease.
If the subsequent problem was not caused by an independent intervening agent but resulted solely as a delayed consequence of the earlier injury, it may be treated as a recurrence of the old injury and the earlier employer may be liable. However, if the subsequent condition was caused by a new industrial incident which worsens the earlier condition, it may be treated as an aggravation and may be deemed to be the liability of the employer for whom the employee was working at the time of the new incident
If the employee continued, after the first injury, to work for the same employer, the question as to whether the new problem is a recurrence or an aggravation may not be important unless a statute of limitation issue arises. However, if the employee is working for a new employer at the time the new problem arises, a substantial dispute may arise as to which employer, if any, is liable to provide benefits to the employee. Such a dispute, being a question of fact, may be resolved by the Appeals Board. Head Drilling Co. v. I.A.C. (1918) 5 I.A.C. 1, 177 Cal. 194 (Published).
EMPLOYEES' SERIOUS AND WILLFUL MISCONDUT
PREJUDICE FROM LACK OF NOTICE
STATUTE OF LIMITATIONS
Except under very limited circumstances, an application for death benefits must be filed within one year from the date of death where death occurs within one year from the date of injury; the date of last furnishing of any benefits under Chapter 2 of Part 2, where death occurs more than one year from the date of injury; or the date of death where death occurs more than one year after the date of injury and compensation benefits have been furnished. Cal. Lab. Code §5406
Cal. Lab. Code §4703.5 provides that death benefits are payments to a spouse, children or other dependents if an employee dies from a work-related injury or illness. This includes reasonable burial expenses, not exceeding $5,000 for injuries before Jan. 1, 2013 and $10,000 for injures on or after Jan. 1, 2013. The amount of the death benefit depends on the number of total and/or partial dependents. In the case of one or more totally dependent minors, after payment of amounts specified below, death benefits will continue until youngest minor's 18th birthday (disabled minors receive benefits for life). Death benefits are paid at the total temporary disability rate, but not less than $224.00 per week. The period within which to commence proceedings for the collection of death benefits is one year from death where death occurs within one year of date of injury (DOI); or one year from date of last furnishing of any benefits or one year from death where death occurs more than one year from DOI. No such proceedings may be commenced more than 240 weeks from the DOI. See this chart for specific dollar amounts and dates.
Medical Services Covered
An industrially injured employee is entitled to receive from his or her employer (or its insurance carrier) all medical, dental, surgical and hospital treatments and devices reasonably necessary to cure or relieve the effects of the injury. Cal. Lab. Code §4600(a). Also see Grom v. State Comp. Ins. Fund, 69 Cal. Comp. Cases 1567 (2004). Although there are some codified limitations on the kinds of treatments that are compensable, there is no set monetary limit for the amount awarded for medical expenses.
Each employer or their insurer must establish a utilization review process for deciding requests for treatments and testing. Cal. Lab. Code §4610. The goal of this process is to provide oversight for medical procedures and ensure that they comply with the medical treatment utilization schedule set forth by the administrative director. Cal. Lab. Code §4610(c). Decisions to change or delay treatment for an injured employee can only be made by a licensed physician. Cal. Lab. Code §4062.
Cal. Lab. Code §4600(a) provides a generalized list of medical services that industrially injured employees may be entitled to. These medical treatments are also based on the guidelines in the Medical Treatment Utilization Schedule (MTUS) adopted by the administrative director. See 8 Cal. Code Regs §§9792.20-9792.23. See Brodd v. CEXI Co., et al., 69 Cal. Comp. Cases 597 (2004) for a more detailed discussion on the range of medical treatment that may be provided for.
For injuries occurring on or after January 1, 2004, an employee is not allowed more than 24 chiropractic, 24 occupational therapy and 24 physical therapy visits per industrial injury, unless the employer or insurer authorizes more visits in writing. Cal. Lab. Code §4604.5(c)(1). These limitations do not apply to visits for post-surgical physical therapy and rehabilitation services so long as these treatments comply with the utilization schedule established under Cal. Lab. Code §5307.27. Facun-do-Guerrero v. W.C.A.B., 163 CA 4th 640 (2008).
Ongoing home health care may be compensable as it is necessary for the injured employee. State Farm v. W.C.A.B. and Pearson (Aparicio), 76 Cal. Comp. Cases 69 (2011). Non-nursing housekeeping services may also be compensable if they are reasonably necessary to cure or relieve the employee’s injury. Smyers v. W.C.A.B., 49 Cal. Comp. Cases 454 (1984). Reasonable transportation costs for treatment are also compensable. Avalon Bay Foods v. W.C.A.B. (Moore), 63 Cal. Comp. Cases 902 (1998).
Physicians’ assistants and nurses holding valid state licenses may provide compensable medical treatment to industrially injured employees when properly supervised by a physician or surgeon. Cal. Lab. Code §3209.10. Also see State Comp. Ins. Fund v . W.C.A.B. (Dragan), 48 Cal. Comp. Cases 538 (1983). Additionally, services from licensed therapists who are either approved by the employer or recommended by all medical evaluators are generally compensable. Cal. Lab. Code §3209.8. Also see Cypress Ins. Co. v. W.C.A.B., 67 Cal. Comp. Cases 182 (2002).
For medical-legal examinations undertaken to prove a disputed claim, the injured employee is entitled to reimbursement for all incurred for medical imaging, laboratory work, medical reporting and records fees, and medical testimony. Cal. Lab. Code §4621.
Prescription medications are a compensable service to the employee, provided that they are dispensed at a reasonable cost and in a necessary amount. Cal. Lab. Code §4600.1 states that the generic equivalent of prescribed medication shall be dispensed when one is available, absent special circumstances.
Procedure for obtaining benefits
An injured employee must report their injury to a supervisor within 30 days of its occurrence for that employee to recover compensation. Cal. Lab. Code §5400. Within one working day of receiving notice or knowledge of an injury to an employee, the employer must provide a DWC-1 claim form containing information on potential workers’ compensation benefits for the injured employee. Cal. Lab. Code §5401. Within one working day of the employee filing the DWC-1 claim form, the employer must furnish them with medical treatment until the claim is accepted or denied, with a $10,000 limit on costs to the employer. Cal. Lab. Code §5402(c).
Once a DWC-1 claim form has been filed with the employer (or their insurer), the employer must accept or deny coverage for the injury within 90 days. If there is no denial within the 90-day period, the injury is presumed to be compensable. Cal. Lab. Code §5402(b). The initial treatment required under Cal. Lab. Code §5402(c) does not, by itself, create the presumption of compensability.
Control over medical treatment
Control of an injured employee’s medical treatment initially rests with the employer. Cal. Lab. Code §4600(a). An employer or employer’s insurer may establish a medical provider network (“MPN”) to provide treatment for injured employees. Cal. Lab. Code §4616 Such an MPN must be comprised of physicians primarily specializing in occupational injuries. Cal. Lab. Code §4616(a)(1).
If no MPN has been established, an employee may choose their own physician or facility for treatment after 30 days have elapsed from the date of reporting their injury. Cal. Lab. Code §4600(c). If the employee is covered and changes physicians in this manner, and the employer does not object to the reasonableness of the treatments or charges, the employer will continue to be liable for treatment. Emporium-Capwell Co. v. W.C.A.B. (Tidwell), 48 Cal. Comp. Cases 801 (1983) (writ denied).
If an employer fails to provide necessary treatment to the injured employee, and that employee has secured their own treatment independently, they may continue receiving treatment at the employer’s expense. Cal. Lab. Code §4600(a). Also see McCoy v. IAC, 31 Cal. Comp. Cases 93 (1966).
For workers’ compensation purposes, an employee’s primary treating physician may include physicians and surgeons holding an M.D. or D.O. degree, psychologists, acupuncturists, optometrists, dentists, podiatrists, and chiropractic practitioners licensed by California. Cal. Lab. Code §3209.3. A chiropractor cannot continue as a primary treating physician once the statutory maximum of 24 chiropractic visits has occurred. Cal. Lab. Code §4600(c). Additionally, acupuncturists, while able to recommend ongoing treatments, are not qualified to determine an injured employee’s disability. Cal. Lab. Code §3209.3(e).
An employee may pre-designate their own primary treating physician if the employee notifies the employer of this arrangement in writing prior to the date of injury, the employee has non-occupational health care coverage, the physician is the employee’s regular primary treating physician, and the physician agrees to be designated prior to the employee’s injury. Cal. Lab. Code §4600(d).
An employee also has a statutory right to one change of physician by making a request to the employer. Cal. Lab. Code §4601. If the employer has an MPN, the employee must choose their new physician from within that same network. Laier v. W.C.A.B. (Comtech Communications, Inc.), 71 Cal. Comp. Cases 856 (2006) (writ denied). Either way, the new physician must be in a reasonable geographic area, as defined in 8 Cal. Code Regs §9780(h). If an employee impermissibly leaves the employer’s MPN for a new physician, the employer is not liable for any treatment provided or recommended by that physician. Cal. Lab. Code §4603.2(a)(3).
An employee’s primary treating physician is required to provide both an initial report and progress reports every 45 days, regardless of whether there has been a change in the employee’s condition. Cal. Lab. Code §4603.2(a). Failure to timely submit these reports is grounds for an employer to petition for a change of physician (and retake medical control if the employee is using their physician).8 Cal. Code Regs §9786(b). Failure to report does not absolve the employer or insurer of liability for necessary treatments that were rendered. Compton Unified Sch. Dist. v. W.C.A.B. (Fuqua), 48 Cal. Comp. Cases 91 (1983) (writ denied).
Other compensable services
For a more in-depth discussion on these services, please refer to the Liens Section.
Medical-legal services, such as reporting fees, diagnostics, and interpreter’s fees, among others, may be compensable if they are reasonably, actually, and necessarily incurred. Cal. Lab. Code §4621. To be compensable, these expenses must have been incurred for the purpose of proving or disproving a contested claim for workers’ compensation. Cal. Lab. Code §4620.
There are other potentially compensable items. The reasonable and necessary costs for copying medical records are payable by the employer. Taylor v. W.C.A.B., 63 Cal. Comp. Cases 350 (1998) (writ denied). Medical testimony that is actually provided is compensable. Any interpreter’s fees necessarily incurred for non-English speaking applicants at legal proceedings or medical appointments may be compensable. See Cal. Code Regs §§9795.1-9795.4 for interpreter fee schedules and appropriate situations for reimbursement.
Temporary disability exists to compensate an injured for lost wages during a period of convalescence from their injury until they reach a status of maximally medically improved (MMI).
There are two types of temporary disability benefits: temporary total disability and temporary partial disability. Temporary total, precludes the injured worker from employment and is covered under Cal. Lab. Code §§4653, 4654.
The Board treats an employee who is only temporarily partially disabled and released to "light work" the same as an employee who is temporarily totally disabled if the employer does not make "light work" available or there is a finding that the employee could not find "light work" in the labor market. Temporary partial disability is covered under Cal. Lab. Code §§ 4654, 4657.
Depending on the date of injury there may a limitation (cap) on the number of weeks temporary disability may be paid. Injuries from 1979 through 4/19/2004 there is no limitation and injuries falling within this time period are governed by Cal. Lab. Code §4656.
Injuries that occur from 4/19/2004 through 12/31/2007 have a limitation of 104 weeks within 2 years from commencement of payment. Cal. Labor Code §4656(c)(1). Per this §, payment by the State of California Employment Development Department does not meet the standard for commencement of payment. Hawkins v Amberwood Products, 72 Cal. Comp. Cases 807 (2007) (En Banc).
Injuries from 1/1/2008 to present and continuing aggregate payments for a single injury cannot extend for more than 104 weeks within a 5 year period from date of injury. Cal. Lab. Code §4656(c)(2). This section does not include the statement “from commencement of payment,” therefore payment by the Employment Development Department (EDD) does count in the 104 week limitation.
There are exceptions to the 104 week rule wherein the injured may receive 240 weeks of Temporary Disability benefits. Cal. Lab. Code §4656(c)(3) lists the following exceptions:
Acute and chronic Hepatitis B
Acute and chronic Hepatitis C
Human Immunodeficiency Virus (HIV)
High Velocity Eye Injuries
Chronic Lung Disease
There is no apportionment for temporary disability benefits. Calculations for the weekly amount are based on earnings and are subject to minimums and maximums depending on date of injury. Cal. Lab. Code §4653.
If a dispute arises as to whether or not a worker has become permanent and stationary, the parties may have the worker evaluated by an Agreed Medical Examiner (AME) or a Panel Qualified Medical Examiner (PQME). The AME or PQME will establish whether or not the employee is permanent and stationary for purposes of ending temporary disability benefits as well as providing the basis for the amount due in permanent disability.
Permanent Disability (PD) is an impairment of earning capacity in the open labor market. Cal. Lab. Code §4660(b)(2).
For dates of injury occurring after 1/1/2005, the American Medical Association Guide for Evaluation of Impairment (Fifth Edition) is to be used. Cal. Lab. Code §4660(b)(2). For prior dates of injury a system known as PDRS was used and it assigned a percentage of the open labor market that the injured worker could no longer compete in.
For dates of injury occurring 1/1/2005 through 12/31/2012 there was a 15% increase or decrease depending on whether the injured worker was returned to regular or modified employment within a specified timeframe. Labor Code §4658(d)(2),(3)(A),(3)(B). For any permanent disability awarded that exceeds 69 3/4%, a life pension will be paid. Cal. Lab. Code §4659(a). All life pensions as of 1/1/2003 will have a cost of living increase tied to the average wage increase in California. Cal. Lab. Code §4659(c).
If the impairment is determined to 100% (total and permanent) the payment shall be the temporary disability rate for life. Cal. Lab. Code §4659(b). The maximum for the calendar year 2013 is $1,066.72.
Apportionment of PD is allowed and shall follow Cal. Lab. Code §4663 (an employer is liable for only their injury) and Cal. Lab. Code §4664 (credit for a prior award). Employers are not liable for permanent disability that would have existed in the absence of an industrial injury. Franklin v. WCAB, 43 Cal. Comp. Cases 310 (1978). Apportionment is an affirmative defense for defendants and is based on causation. State Compensation Ins. Fund v. IAC (Wallin), 24 Cal. Comp. Cases 302 (discussing proximate causation).
A recent case of note for permanent disability is Benson v. WCAB (Kaiser-Permanente), 170 Cal. App. 4th 1535 (2009), which indicated per Labor Code §4663 that each injury was separate for assigning impairment. Thus, two separate awards of disability for two separate injuries is proper. The exception comes when a reporting physician indicates the injuries are “inexplicably intertwined.” For combining PD to the same body parts, the disabilities must become permanent and stationary on the same date, not just sustained in the same employment. De Vera v. WCAB, 61 Cal. Comp. Cases 1469 (1998)(writ denied).
Almarez/Guzman II, 74 Cal. Comp. Cases 1084, 2209 allows the reporting physician to use any part of the AMA guides (Fifth Edition) to describe impairment if the assigned chapter does not allow for a fair assessment of the impairment. However, the physician must give an explanation for the deviation from the AMA guides.
Jurisdiction of the WCAB
The WCAB is an administrative agency of limited jurisdiction created by the California legislature to determine awards of workers’ compensation benefits. Scott v. I.A.C. 21 Cal. Comp. Cases 55 (1956). Cal. Lab. Code §5300 specifies the actions over which the WCAB has initial jurisdiction, including determination, recovery, and enforcement of compensation payable to an injured employee. The WCAB does not have jurisdiction to award damages (only benefits) nor can they rule on the constitutionality of the law. Spradlin v. W.C.A.B., 64 Cal. Comp. Cases 489 (1999) (writ denied).
Cal. Lab. Code §5304 grants the WCAB jurisdiction over any controversy arising from Cal. Lab. Code §§4600-4605, which includes jurisdiction to determine the validity of medical treatment bills, and, subsequently, the authority to resolve liens.
Cal. Lab. Code §5305 grants the WCAB jurisdiction over injuries occurring out of state if the employee was hired in California. If an employer dies before an injured employee can bring a compensation claim against them, the employee may proceed against the employer’s estate. Cal. Lab. Code §5306.
The WCAB retains continuing jurisdiction amend awards and orders that it previously granted, though it must make such an amendment within five years of its original order. Cal. Lab. Code §§5803-5804.
Cal. Lab. Code §5501.5(a) specifies where an application for adjudication of claim, which is essentially the initiation of the litigation process for a workers’ compensation determination. Filing locations include the county where the injured employee or dependent of a deceased employee resides on the date of filing; the county where the injury allegedly occurred, or, for cumulative trauma cases, where the last alleged injurious exposure occurred; or, if the employee is represented by an attorney, in the county where the employee's attorney maintains his or her principal place of business. If there is no WCAB location in any county with proper venue, then the nearest WCAB location to a county with proper venue shall be used. Cal. Lab. Code §5501.5(d).
For employees residing out-of-state, venue will be proper in the county where the injury occurred, or, if there is no WCAB location in that county, any other WCAB location would be proper. Noble v. City of Oakland Police Department, 47 Cal. Comp. Cases 1 (1982).
An injured employee or an employer-insurer defendant may petition for a change of venue after proceedings have begun, provided that the requesting party provides details and good cause in their petition to the WCAB for the change. Cal. Lab. Code §5501.6.
Statute of Limitations
An injured employee’s application for benefits must be filed within one year from: the date of injury; the date the employee last received medical treatment for their injury from their employer or its insurance carrier; or date of the last indemnity payment for temporary or permanent disability compensation by the employer or its insurance carrier as a result of the injury. Cal. Lab. Code §5405. It should be noted that laches is also a valid defense in workers compensation proceedings. Kaiser Foundation Hospitals/Permanente Medical Group v. W.C.A.B. (Valencia), 41 Cal. Comp. Cases 730 (1976) (writ denied).
In cases of occupational disease and cumulative injury, the date of injury is that date upon which the employee first suffered a disability therefrom and either knew or, in the exercise of reasonable diligence, should have known that the disability was caused by his or her employment. Cal. Lab. Code §5412. For occupational diseases or cumulative injuries the statute of limitations from Cal. Lab. Code §5405 does not begin until these conditions are met. Palmer v. W.C.A.B., 52 Cal. Comp. Cases 298 (1987).
An application for death benefits must be filed within one year from: the date of death of the employee where death occurs within one year from the date of injury; the date of last furnishing of compensation benefits, where death occurs more than one year from the date of injury; the date of death, where death occurs more than one year after the date of injury and compensation benefits have been furnished; or the service of a notice of rejection of a claim, by an employer. Cal. Lab. Code §5406.
Filing an application with WCAB
A party may file an application for adjudication of claim with the WCAB whenever there is a dispute over workers’ compensation benefits in which the WCAB has jurisdiction. Cal. Lab. Code §5500. This application, along with an answer from the responding party, must be filed in conformity with 8 Cal. Code Regs §10408 to initiate proceedings. The application and answer, along with other documents relevant to the proceedings, must be filed on the DWC’s Electronic Adjudication Management System, or EAMS. 8 Cal. Code Regs §10205.
If an employee wishes to make a claim for increased benefits based on serious and willful employer misconduct under Cal. Lab. Code §4553, they must provide specific facts in their pleading. 8 Cal. Code Regs §10440.
In addition to any requested attachments of information on the initial application, the employee must file a declaration under Cal. Lab. Code §4906(g), a DWC-1 claim form (filed with both the employer and the WCAB), a Declaration of Readiness to Proceed (“DOR”), and proof of service on necessary parties. 8 Cal. Code Regs §§10505,10250(b).
A defendant’s answer is the appropriate method for initially bringing defenses or denials of liability to the attention of the WCAB. Any issues not raised in a timely fashion may be waived, making the filing of an answer of crucial importance. Cal. Lab. Code §§5505-5506. The absence of an answer will not by itself provide a default judgment against a defendant, but it will permit the WCAB will hear the case on the terms it considers proper. O’Hare v. IAC (McClatchy Publishing), 6 Cal. Comp. Cases 134 (1941).
If the information contained in an application for benefits makes it apparent that the claimant is not entitled to any workers’ compensation, then the WCAB or the defendants can motion to dismiss the application after the applicant has had an opportunity to be heard. Cal. Lab. Code §5507.
A Stipulations with Request for Award can be filed with the WCAB if the parties are in agreement on most facts for the WCAB to immediately issue an award or undertake further investigation. 8 Cal. Code Regs §10496, Cal. Lab. Code §5702.
The initial phase of discovery begins when a defendant’s claims administrator gathers information on an injured employee to determine eligibility for benefits. 8 Cal. Code Regs §10109(b)(1). The DWC-1 claim form from the employee is also an initial source of evidence, though not highly detailed, to form the basis for a claim. Initial forms (such as Form 5020) from the employer provide crucial dates for 30 and 90-day time limits. Cal. Lab. Code §5402. Form 5021, or the Doctor’s First Report of Occupational Injury, is the first substantial medical evidence for an employee’s claim. Cal. Lab. Code §6409(a) and 8 Cal. Code Regs §14006.
More extensive medical discovery involves the designation of an Agreed Medical Examiner (“AME”) to resolve disputed or unclear medical issues of the employee and filing a comprehensive report on their injury. Cal. Lab. Code §4062.2(f). The AME is chosen by the parties from a three-member panel, giving each party an opportunity to ‘strike’ an undesirable physician from their panel. Cal. Lab. Code §§4062.1, 4062.2.
Once the injured employee obtains a primary treating physician (“PTP”), the PTP is obligated to file regularly updated reports on the employee’s status. 8 Cal. Code Regs §9785. The PTP is additionally responsible for incorporating the reports of all secondary treating physicians in their own report for submission to the claims administrator. Cal. Lab Code §4061.5, 8 Cal. Code Regs §9785(e)(4). These reports constitute an important source of evidence for the applicant’s disability, as well as the necessity of any treatments on a lien basis (see Liens §for further discussion).
The WCAB has authority to subpoena witnesses and records, and The Labor Code provides that any depositions should be taken in a manner similar to that of civil proceedings. Cal. Lab. Code §130 and §5710. The purpose of such depositions is to clarify any points necessary, gather information on an employee’s earnings and work history, and possibly gauge their credibility in person to make strategic decisions about their claim. When a deposition of an injured employee is requested, that employee is entitled to reimbursement of all reasonable costs in connection with their attendance. Cal. Lab. Code §5710 and Longval v. WCAB (Amaral), 61 Cal. Comp. Cases 1396 (1996).
The most common form of settlement before trial is the Compromise and Release (C&R) agreement, and, indeed, most compensation claims are settled outside of trial. Cal. Lab. Code §§5000-5005. A C&R may be full or partial in scope, meaning that it may only cover some of the outstanding claims in a dispute. Foreman v. Woodson, 6 Cal. Comp. Cases 305 (1941). Serious and willful misconduct of the employer is not covered by workers compensation insurance. As such, this claim may be settled separately or as part of the main C&R.
A C&R must be reduced to writing and signed by the parties. Cal. Lab. Code §5003. To comply with formalities imposed by The Labor Code or regulations, the official court form for the C&R should be used. Available medical reports from the parties should be attached to the C&R.8 Cal. Code Regs §10233. The final, approved C&R must be served to each party’s attorney. 8 Cal. Code Regs §10886. Typically, the C&R and all supporting documents are filed on EAMS
Along with the benefits to be paid to an applicant, the C&R may stipulate how an insurer (or multiple insurers, in some cases) chooses to deal with certain liens. A copy of the final C&R approved by the WCAB must be served to all lien claimants of record. 8 Cal. Code Regs §10886.
Once a C&R is approved by the WCAB, it has the binding force of a judgment. Sumner v. WCAB, 48 Cal. Comp. Cases 369. Before it is judicially approved, but after it is executed by the parties, the WCAB assumes it is binding and cannot be rescinded prior to the WCAB taking action on it. Booker v. Employee Benefits Ins. Co., 24 CWCR 54 (1995). It is the duty of the WCAB to adequately review any pre-trial settlements submitted by the parties. Cal. Lab Code §5001.
A final C&R is subject to reconsideration on the motion of the WCAB. Cal. Lab. Code §5900. A Petition to Reopen proceedings may be filed by either party after the approval of a C&R if good cause can be shown, usually in the form of mistake or fraud. Cal. Lab. Code §5803.
Once a Declaration of Readiness to Proceed is filed with the appropriate WCAB office, the handling WCJ decides when to set the matter for a formal hearing or trial. 8 Cal. Code Regs §§10208.2, 10250. A trial is called when it appears necessary for dispute resolution. Parties who fail to appear to a properly noticed trial are subject to dismissal, a decision in their absence, or delays in the proceedings. 8 Cal. Code Regs §10562.
A Mandatory Settlement Conference (“MSC”) may be called by a WCJ prior to a formal trial taking place. Cal. Lab. Code §5502(d)(2). The purpose of the conference is to allow the parties to discuss the issues and disputes of a case without the formalities and procedures of trial itself. Parties are required to attend a properly noticed MSC and may be dismissed or sanctioned for failure to do so. 8 Cal. Code Regs §10562. If the parties do not reach a resolution in the MSC, they must file a summary of the MSC proceedings for the upcoming trial. Discovery closes on the date of the MSC as well. Cal. Lab. Code §5502(d)(3).
A trial itself is typically a presentation of evidence to the presiding WCJ for a decision, though for more complicated cases, some briefing and oral arguments may be made. Stipulations and Issues from the parties are usually presented to the WCJ before the trial begins. Failure to raise an issue at the first possible opportunity in WCAB proceedings may result in a waiver of that issue. Gould v. WCAB (Mayo & Allebe), 57 Cal. Comp. Cases 157 (1992). Once stipulations and issues are read into the record, other filed documents are received as evidence by the WCJ. The typical order of proof is: applicant’s case, defense case, and rebuttals. The WCJ, as both a trier of fact and a trier of law in the proceeding, must render a decision after hearing the arguments and evidence from the parties. It is important that the parties ensure that the record contains all relevant issues for the WCJ to render a decision on, especially if the record must be used in a petition for reconsideration or an appeal (where new issues typically cannot be raised).
It is sometimes necessary for a WCJ to issue a continuance, particularly if the trial exceeds the scheduled calendar time limit. Cal. Lab. Code §5700.
The burden of proof at a trial rests with the party asserting an issue. Cal. Lab. Code §5705. The evidentiary standard in WCAB proceedings is a preponderance of the evidence. Therefore, an applicant must prove the facts necessary to show an industrial injury resulting in death or disability requiring medical treatment. Cal. Lab. Code §3202.5.
The rules of evidence in WCAB trials come from Cal. Lab. Code §§5300-5317, 5700 and 5816, and are generally much more relaxed than civil rules of evidence. These proceedings follow relatively informal procedures, and WCJ’s have flexibility in obtaining evidence to ascertain the rights of the parties. Martinez v. Associated Eng’g & Const. Co., 44 Cal. Comp. Cases 1012 (1979).
LIENS AND OTHER RECOVERABLE COSTS
Substance of lien claims
A claim for workers’ compensation is normally not assignable to anyone besides the claimant (including the claimant’s creditors) before it is awarded. Cal. Lab. Code §§4900-4901. The Workers’ Compensation Appeals Board (“WCAB”), however, does allow certain services to be provided on a lien basis. In other words, a provider of these services to an injured employee may acquire a lien against their claimed workers’ compensation award. Cal. Lab. Code §4903 and Williams v. W.C.A.B., 58 Cal. Comp. Cases 534, (1993).
The WCAB may allow some expenses as liens against payable compensation (known as “permissive liens”), including attorney’s fees, medical treatment expenses, transportation expenses, interpreter’s fees, and others. See Cal. Lab. Code §4903 and Cal. Code Regs §10205 for more details. The WCAB must also allow certain medical and disability benefits as liens (known as “mandatory liens”) as required by Cal. Lab. Code §4903.1(a). It is important to note that the WCAB cannot allow or order obligations not specified in Cal. Lab. Code §§4903, 4903.1, or 4903.3 to become liens. Ogdon v. W.C.A.B., 39 Cal. Comp. Cases 297 (1974).
Medical Treatment Liens
The WCAB may allow a lien for reasonable medical, surgical, chiropractic, acupuncture, or hospital expenses (as defined in Cal. Lab. Code §4600(a)) incurred by an injured employee. Cal. Lab. Code §4903(b). Any costs subject to independent medical review or independent bill review processes are specifically excluded. Cal. Lab. Code §4903(b). Any costs not specifically enumerated in Cal. Lab. Code §4600(a) are also excluded from being allowed a lien. For an example of an excluded cost, see Alistar Ins. Co. v. W.C.A.B. (Padilla), 64 Cal. Comp. Cases 234 (1999) (writ denied).
Generally, a medical service provider cannot recover on a lien for treatment given after a Compromise and Release (“C&R”) is approved by the WCJ, unless there is an agreement to the contrary. Cal. Lab. Code §5815. In the case of a mutual mistake of fact regarding the amount awarded or allocated in the C&R, a lien claimant for medical services may still proceed within the applicable statute of limitations. City of Montclair v. W.C.A.B. (Austin), 60 Cal. Comp. Cases 1229 (1995) (writ denied).
The employer or their insurer is not liable for a medical treatment lien from a medical service provider selected by the employee if the employee did not have the right of medical control at the time of this treatment. Tiernan v. W.C.A.B., 49 Cal. Comp. Cases 752 (1984) (writ denied).
A medical provider lien claimant also has the burden of showing that the physician (or other specialist) who provided the service was properly licensed and that the procedure was rendered correctly. Zenith Ins. Co. v. W.C.A.B. (Capi), 71 Cal. Comp. Cases 374 (2006).
The claimant also has the burden of showing that the underlying treatments were medically necessary, meaning it must adhere to the utilization schedule adopted under Cal. Lab. Code §5307.27. Cal. Lab. Code §4600(a), (b). Unnecessary treatments may include those rendered after the injured employee no longer required them, treatments for non-work related injuries, or treatments that fail to comply with the statutory utilization schedule. Williams v. IAC, 51 Cal. Comp. Cases 277 (1966).
If the only dispute between the employer and lien claimant is one of reasonable value for the medical services provided, and a fee schedule has been established for the services, no lien or cost claim may be brought before the WCAB. Instead, the parties must undergo independent bill review as required by Cal. Lab. Code §4903(b). If there is no applicable fee schedule, a lien may be filed to resolve the dispute.
Awards for medical treatment liens are usually capped on the basis of the official medical fee schedule (OMFS) established by the administrative director under Cal. Lab. Code §5307.1. The fee schedule itself begins at 8 Cal. Code Regs §9789.10 and includes formula and limits for determining the maximum reimbursement for physician services. 8 Cal. Code Regs §9789.40 contains a formula for pharmaceutical expenses that is tied to the Medi-Cal payment system. Other §s in these regulations address laboratory services, durable medical equipment, and ambulance services.
Beginning January 1, 2013, medical-legal expenses are not recoverable as liens, but as costs under Cal. Lab. Code §4620(a). Medical-legal expenses include costs incurred by any party, the WCAB, or the administrative director for medical tests, reports, and interpreter’s fees necessary to prove or disprove a contested claim at the time the expense was incurred. The employer has no liability for medical-legal expenses incurred before the employer receives notice of the claim. Del Rio v. Quality Hardware, 58 Cal. Comp. Cases 147 (1993) (WCAB en banc).
If the employer fails to satisfy or object to a medical-legal bill for which they are liable within 60 days of receiving the bill and supporting documentation, the employer is precluded from asserting a defense and must pay the lien with a 10% penalty and 7% interest. Cal. Lab. Code §4622. This rule does not create a presumption of entitlement to payment.
Medical-legal expenses must be necessary, meaning that items such as multiple reports addressing the same benefits issue would not be allowed a lien for reimbursement. Barney v. W.C.A.B., 59 Cal. Comp. Cases 1051 (1994) (writ denied). Reports given after the employee has been referred to an Agreed Medical Examiner are also superfluous and not compensable.
Only licensed physicians may submit medical-legal reports. 8 Cal. Code Regs §9793(h)(1). The physician compiling the report has a duty to directly and carefully examine the employee. Cal. Lab. Code §4628. The examination should be within the guidelines of Cal. Lab. Code §139.2(j)(5) or §5307.6, with any variances explained by the examining physician. Cal. Lab. Code §4628(b). The report itself must have evidentiary value – that is, it must be conclusive enough to aid in proving or disproving disputed claims in order to be a compensable service. Cal. Lab. Code §4620(c).
The Code allows reimbursement for interpreter's fees reasonably, actually and necessarily incurred by or on behalf of any party, for the purpose of proving or disproving a contested claim. Cal. Lab. Code §§4620 - 4621.
It is the burden of the lien claimant for interpreting services to show that the interpreter was properly certified. Cal. Lab. Code §5811(b). These services must have been necessary in furnishing medical treatment or evaluation to the employee. See Guitron v. Santa Fe Extruders, et al., 76 Cal. Comp. Cases 228 (2011) for a discussion of the obligations of an employer to provide reasonable interpreter services when an injured worker is receiving various types of medical treatment.
Interpreter’s fees are generally recoverable as costs rather than liens, but interpreting services in connection with medical treatment may be included as a lien claim. 8 Cal. Code Regs §10205(hh). A fee schedule for a qualified interpreter utilized where the employee does not proficiently speak or understand the English language has been set at $11.25 per quarter hour or a portion of a quarter hour, with a minimum payment of two hours or the market rate, whichever is greater. 8 Cal. Code Regs §9795.3.
An employee may be reimbursed by the employer or its insurer for the reasonable and necessary costs of copying records. Cal. Lab. Code §§4620-4621. Williams v. Industrial Indemnity Co., 38 Cal. Comp. Cases 325 (1973). The copied records must be of use – a lien claimant cannot recover for unnecessarily copying records or documents that are never used. Piha v. W.C.A.B., 37 Cal. Comp. Cases 26 (1972) (holding that costs for copying hospital records that the treating physician did not rely upon is not a recoverable cost).
Beginning on January 1, 2013, the administrative director has been tasked with adopting a fee schedule that sets a maximum limit on reimbursement for photocopying services. Cal. Lab. Code §5307.9. Until the adoption of such a schedule, some guidance on proper photocopying fees may be found in Cal. Evid. Code §1158, which states that a party may be entitled to reasonable costs for copying documents, not to exceed 10 cents per page.
Procedure for lien claims
A lien claimant can become a party to an action when the employee’s case-in-chief has been settled by a Compromise and Release, or when the employee ceases pursuing the case. 8 Cal. Code Regs §10364(a).
Any person or entity who incurred expenses or provided goods or services covered in Cal. Lab. Code §4903 may begin the lien process with the WCAB by filing a Notice and Request for Allowance of Lien. 8 Cal. Code Regs §10770. Starting January 1, 2013, the lien claimant must also file, along with this form, at least one supporting declaration that the services in question were rendered, and that the bill being claimed accurately reflects their value. Cal. Lab. Code §4903.8(d). There must also be an itemized bill or other statement directly evidencing the lien. Cal. Lab. Code §4903.05(a). The lien claim form must be accompanied by a proof of service showing service for the employer, insurer, attorneys of record, and the injured employee. 8 Cal. Code Regs §10770(b)-(c)(1). Finally, there must be sworn verification.
To move adjudication of the lien forward, a Declaration of Readiness to Proceed (“DOR”) must be filed once the case-in-chief is resolved or at least six months have elapsed since the date of injury and the employee has chosen not to proceed with their claim. 8 Cal. Code Regs §10770.6. At this point, the parties are required to attempt informal good-faith settlement negotiations. 8 Cal. Code Regs §10888.
Typically, a Workers’ Compensation Judge (“WCJ”) will set the case for a lien conference upon receiving a DOR. 8 Cal. Code Regs §10770.1(a). Such conferences provide an opportunity for the defendant and lien claimants to discuss and review their claims in person, and to have the WCJ grant binding orders on any agreements reached. All parties must appear at this conference or risk having their liens dismissed. 8 Cal. Code Regs §10770.1(h).
If a lien is not settled at the lien conference, it will be set for trial with a WCJ. At the lien conference, the parties must file a pretrial conference statement with the WCJ, listing all evidence to be presented and issues in dispute. 8 Cal. Code Regs §10770.1(e). The WCJ may also order the matter “off-calendar” for more discovery or informal negotiations to occur.
Statute of Limitations
Beginning January 1, 2013, a lien for medical treatment must be filed within 3 years of from the last date that the underlying services were provided, and for treatments rendered after July 1, 2013, a lien must be filed within 18 months of the last date of service. Cal. Lab. Code §4903.5(a). There are a few specified kinds of service providers listed in Cal. Lab. Code §4903.5(b) that receive a more lenient statute of limitations. Failure to file a lien within these time constraints will absolve the defendant of liability for the claim. Kaiser Found. Hosps. v. W.C.A.B. (Webb), 42 Cal. Comp. Cases 302 (1977).
There is a second time limit concerning “ripeness” of the lien claim found at Cal. Lab. Code §4903.6(a)(1)-(3): no lien claim can be brought until at least 60 days after acceptance or rejection of liability for the claim, or the time given for investigation of the claim has elapsed, whichever is greater; or, in the alternative, that the time provided for payment of treatment expenses or payment of medical-legal expenses has elapsed. 8 Cal. Code Regs §10770.5(a).
Lien Activation Fees
Beginning on January 1, 2013, all new lien filings and claims for costs require a $150 filing fee to be paid electronically for the lien to be valid. Cal. Lab. Code §4903.05(c)(1). Only one filing fee is required for liens filed in multiple cases involving the same injured worker (i.e., multiple periods of injury). Cal. Lab. Code §4903.05(c)(3). Proof of this payment must be submitted along with the DOR to be able to proceed at a lien conference. Cal. Lab. Code §4903.06(a)(2). Dismissed liens do not entitle the lien claimant to a refund of their filing fee. Cal. Lab. Code §4903.05(c)(6).
Any liens filed before January 1, 2013, require a $100 activation fee to be paid electronically for the lien to be valid. Cal. Lab. Code §4903.06(a)(1). This activation fee is waived if the lien claimant previously paid the filing fee required by former Cal. Lab. Code §4903.5. Cal. Lab. Code §4903.06(a) and 8 Cal. Code Regs §10208(a)(2)(I). Failure to pay a required activation fee for a lien claim by January 1, 2014, will result in a dismissal of the lien by operation of law. Cal. Lab. Code §4903.06(a)(1), (5). If the activation fee has not been paid by the time of the lien conference, or no proof of payment is submitted, the lien shall be dismissed with prejudice. Cal. Lab. Code §4903.06(a)(4).
Lien activation fees are no longer being collected by the Division of Workers’ Compensation, in compliance with a ruling issued by the US District Court for the Central District of California in the matter of Angelotti Chiropractic, Inc., et al. v. Baker, et al.
Lien claimants whose liens were subject to the activation fee are not currently required to pay the fee in order to appear at a hearing or file a Declaration of Readiness to Proceed regarding a lien.
APPEALS AND FURTHER PROCEEDINGS
Procedures for judicial review
Judicial review by the California Court of Appeals is available for all finalized Workers’ Compensation Appeals Board (“WCAB”) decisions. Cal. Const. art XIV, §4. A writ of review is the statutory device for judicial review WCAB decisions. Cal. Lab. Code §§5950-5956. A writ of review is only available once a petition for reconsideration to the WCAB has been made and has either been granted or denied. Cal. Lab. Code §5950. See Anderson-Cottonwood Disposal Serv. v. W.C.A.B. (Webb), 47 Cal. Comp. Cases 945 (1982) (discussing that this allows the WCAB to rectify errors from its own judges prior to judicial review).
Petition for Reconsideration
A petition for reconsideration is used to appeal the final decision of a Workers’ Compensation Judge (“WCJ”) to a WCAB panel. Cal. Lab. Code §5900. This petition must be made within 20 days after the service of a WCJ’s decision. Cal. Lab. Code §5903. The WCAB may grant reconsideration on its own motion within 60 days after the filing of a WCJ’s decision. Cal. Lab. Code §5900(b). Any issues or objections from the underlying case that are not stated in the petition for reconsideration are considered waived and will not receive judicial review. Cal. Lab. Code §5904 and Green v. W.C.A.B., 70 Cal. Comp. Cases 294 (2005).
Once a petition is properly filed, the WCAB will either reject it or accept and review it en banc, or with a panel of three commissioners. Cal. Lab. Code §115. If a petition is dismissed or denied, then the underlying WCJ’s decision stands as a final disposition that can be appealed with a writ of review. Hansen v. W.C.A.B., 54 Cal. Comp. Cases 193 (1989). If the petition for reconsideration is accepted, the WCAB has broad authority to reject, affirm, or otherwise modify final decisions from a WCJ based on the grounds enumerated in Cal. Lab. Code §5903. Both the denial of a petition for reconsideration and a decision that is reached after the granting of the petition are considered final orders on which a writ of review can be issued. Cal. Lab. Code §5950.
For clerical, mathematical procedural errors, a WCJ may act to correct the decision without a petition for reconsideration. 8 Cal. Code Regs §10858 and Hennefer v. Butcher 182 Cal. App. 3d 492 (1986).
Writ of Review and Further Judicial Review
A writ of review is the most common way of appealing a finalized WCAB decision to the California Court of Appeals. A writ of mandate is also available, although rare, to compel the WCAB to take action on a matter. Cal. Lab. Code §5955. A writ of prohibition can also be issued to restrain the WCAB from taking action where jurisdiction would be inappropriate. Scott v. IAC, 21 Cal. Comp. Cases 55 (1956) (restraining the WCAB where it had concurrent jurisdiction with a civil court whose jurisdiction was invoked first).
The decision from the petition for reconsideration must be final before a petition for a writ of review can be made. For these purposes, a final order is considered to include any binding WCAB decision that is critical to a claim for benefits, whether or not the decision resolves all of the outstanding issues in the case. Wal-Mart Stores, et al., v. W.C.A.B. (Garcia), 68 Cal. Comp. Cases 1575 (2003). In bifurcated cases, if, during reconsideration, a threshold issue is determined by the WCAB that is critical to the rights of a party, and the remaining issues are sent back to a WCJ, a writ of review may be requested on the threshold issue. Safeway Stores, Inc. v. WCAB (Pointer), 45 Cal. Comp. Cases 410 (1980).
A petition for writ of review must be filed within 45 days of the WCAB’s denial of a petition for reconsideration or within 45 days of an order following a granted petition for reconsideration. Cal. Lab. Code §5950. The petition should formatted and bound according to the rules in Cal. Rules of Ct. 8.204. The petition for a writ of review should also have attached as exhibits all of the documents listed in Cal. Rules of Ct. 8.495(a)(1), as well as a points and authorities section. Proof of service should accompany the petition when it is filed. Cal. Lab. Code §5954.
An answer to a petition for a writ of review is not mandatory, but should always be filed since the Court of Appeals has no obligation to search the record for opposing arguments to the writ of review. Air Couriers International v. Employment Development Department, 150 Cal. App. 4th 923 (2007). The WCAB and each named respondent in the petition may file an answer within 25 days after the writ of review is filed. Cal. Lab. Code §5953, Cal. Rules of Ct. 8.495(b)(1). A petitioner may then file a reply to the answer, though it is not mandatory. Such a reply must be made within 15 days after the filing of the answer. Cal. Rules of Ct. 8.495(b)(2).
Writs for review are commonly denied without a hearing, which is within the appellate court’s powers. Lavore v. IAC, 3 Cal. Comp. Cases 156 (1938). If the writ is granted, the parties typically proceed to oral argument, unless they waive this in favor of submitting their argument by brief. Cal. Rules of Ct. 8.256(d)(1). After either of these occur, the case is considered submitted, and the appeals court will render a decision accordingly. Cal. Rules of Ct. 8.264(a).
Once appellate review is granted and a decision is rendered, the losing party may petition the appellate court for a rehearing or appeal to the California Supreme Court directly. Cal. Rules of Ct. 8.268(a). The Supreme Court will only accept a select few cases for review, based on the guidelines found in Cal. Rules of Ct. 8.500(b). In the California Supreme Court, should they accept the appellate court’s decision for review, the parties conduct oral argument in the same fashion as in the appellate court, unless argument is waived, and then a decision is rendered. Cal. Rules of Ct. 8.564(d).
Whether the California Court of Appeals or Supreme Court grants review and renders a decision on the case which requires further action from the WCAB, a remittitur is issued with instructions to the WCAB attached. Cal. Rules of Ct. 8.540. The WCAB is required to follow the order of the reviewing court, and is generally not allowed to request new evidence from the parties on an issue that was reviewed. Gallegos v. W.C.A.B., 72 Cal. Comp. Cases 1396 (2007) (writ denied). A decision from the WCAB after a remittitur is issued is considered an original WCAB decision which may be reviewed under the same processes discussed above. Nelson & Sloan v. W.C.A.B. (Hairrell), 43 Cal. Comp. Cases 299 (1978).
Grounds For Judicial Review
Petition for Reconsideration
Reconsideration of a WCJ’s decision may be sought on the following statutory grounds: that the WCJ or WCAB exceeded the WCAB’s powers, that there was fraud in the proceedings, that the evidence does not justify the findings of fact, that the findings of fact do not support the holding, or that the party seeking reconsideration has discovered new evidence. Cal. Lab. Code §5903.
The WCAB can only grant awards or orders within its statutory powers. Awards that are beyond this scope, or any actions through which the WCAB deprives a party of due process, are considered in excess of the WCAB’s powers and should be reviewed. See Martinez v. Associated Eng’g & Constr. Co., 44 Cal. Comp. Cases 1012, 1018 (1979) (en banc) for a discussion on the flexibility of a WCJ’s proceedings while keeping the parties’ rights intact.
A petition for reconsideration based on allegations of fraud in the proceedings must contain a detailed account of the fraud. 8 Cal. Code Regs §10856. A conviction under Cal. Ins. Code §1871.4 (concerning false statements when applying for workers’ compensation benefits) is sufficient to obtain reconsideration for fraud.
On reconsideration, the WCAB may reach contrary conclusions to a WCJ’s findings of fact if the evidence in the record is substantial enough to support the new findings. For an example of this power being exercised, see Hidalgo v. W.C.A.B., 68 Cal. Comp. Cases 1727 (2003) (writ denied).
Newly discovered evidence that could not have been reasonably discovered and produced at the time of the original hearing may constitute a grant of reconsideration. Cal. Lab. Code §5903(d). A petition for reconsideration based on newly discovered evidence must be accompanied by a detailed account of the evidence. 8 Cal. Code Regs §10856. See Canty v. W.C.A.B., 61 Cal. Comp. Cases 559 (1996) for a discussion of reconsideration on these grounds. If the findings of fact do not reasonably support a WCJ’s final order, reconsideration is proper to correct the error. Cal. Lab. Code §5903(e).
Writ of Review
Similar to the grounds on which reconsideration can be sought with the WCAB, a writ of review may be obtained from an appellate court on the following grounds: that the WCAB exceeded their statutory powers, that there was fraud in the proceedings, that the final decision was unreasonable or not supported by substantial evidence, or that the WCAB’s findings of fact do not support their holding. Cal. Lab. Code §5952.
A WCAB decision will be overturned if it is found to be in excess of its granted powers. Cal. Lab. Code §5952(a). See Beverly Hills Multispecialty Group, Inc. v. W.C.A.B. (Pinkney), 59 Cal. Comp. Cases 461 (1994) for an example of the WCAB being overturned due to a violation of due process rights.
A WCAB decision will be overturned if it was gained through fraud. Cal. Lab. Code §5952(b). Fraud is determined for a writ of review in the same way as for a petition for reconsideration. A WCAB decision will also be overturned if “no reasonable person could have reached the same conclusion.” Cal. Lab. Code §5952(c). West v. IAC (Best), 12 Cal. Comp. Cases 86 (1947).
A reviewing court is obligated to study the entire record to determine whether the WCAB’s final order was supported by substantial evidence. Cal. Lab. Code §5952(d) and LeVesque v. W.C.A.B., 35 Cal. Comp. Cases 16. The meaning of the term “substantial evidence” is analyzed at length in the case of Insurance Company of North America v. W.C.A.B. (Kemp), 46 Cal. Comp. Cases 913 (1981). The WCAB has broad fact-finding powers, and any factual conclusions they reach are not subject to judicial review. Cal. Lab. Code §5953. However, whether the factual findings actually support the WCAB’s final decision is an issue that is subject to review. Cal. Lab. Code §5953(e) and Hardware Mut. Cas. Co. v. W.C.A.B. (Hargrove), 32 Cal. Comp. Cases 291 (1967).
Other subsequent proceedings
The WCAB retains continuing jurisdiction over certain workers’ compensation cases and may reopen those decisions that were finalized before Jan. 1, 2009 to alter disability awards where the injured employee’s condition has undergone an unexpected change. Cal. Lab. Code §5803 and Weiner v. Ralphs Co., 74 Cal. Comp. Cases 736 (2009) (en banc). A WCJ may extend this five year period to reopen by issuing a notice of intent to reopen the case after five years. Zurich Ins. Co v. W.C.A.B. (Cairo), 38 Cal. Comp. Cases 500 (1973). Additionally, either party may file a petition to reopen within five years from the date of injury if they can show good cause under Cal. Lab. Code §5803. Also see Liberty Mut. Ins. Co. v. W.C.A.B. (Aprahamian), 45 Cal. Comp. Cases 866 (1980). A petition for reopening can also be based on a new or further disability arising in the injured employee. Cal. Lab. Code §5410.
Where there is an award for ongoing, indefinite disability benefits, and a defendant believes they are entitled to cease making payments on the injury, they must file a petition to terminate liability.8 Cal. Code Regs. §10462. A defendant’s ongoing liability may also terminate automatically upon the death of an injured employee (Cal. Lab. Code §4700) or upon the passage of a sufficient amount of time from the injury (Cal. Lab. Code §4656(c)).
Defendants are also entitled to credit, or, in some circumstances, restitution for any overpayments made to employees. Cal. Lab. Code §4909 and Sea-Land Serv., Inc. v. W.C.A.B. (Lopez), 61 Cal. Comp. Cases 1360 (1996). Credits for overpayments on temporary disability benefits may be allowed to offset liability for permanent disability benefits. Cordes v. General-Dynamics-Astronautics, 31 Cal. Comp. Cases 429 (1966). Restitution is typically not ordered by the WCAB if an overpayment was made in good faith and there was no wrongdoing from the employee. Ryerson Concrete Co. v. W.C.A.B. (Pena), 38 Cal. Comp. Cases 649 (1973). Additionally, a defendant insurance carrier who mistakenly provided coverage to an injured employee where it was not the insurance carrier at the time of the employee’s injury may file a lien against the proper carrier. Cal. Lab. Code §4903.
The WCAB may commute payable compensation under a ruling to a lump sum, either by its own motion or on motion from one of the parties, provided that the commutation is equitable and in the best interests of the injured employee. Cal. Lab. Code §5100. In one case, commutation has been ordered to aid an injured employee in the purchase of rental property whereby the employee could earn passive income. Los Angeles Unified School District v. W.C.A.B. (O’Hagan aka Hagen), 73 Cal. Comp. Cases 923 (2008) (writ denied). The WCAB has jurisdiction to commute a disability award to a lump sum payment more than five years after the date of injury since commutation is not an alteration of the overall award amount. Hodge v. W.C.A.B., 46 Cal. Comp. Cases 1034 (1981).
Serious And Willfull
Cal. Lab. Code §4551 provides: Where the injury is caused by the serious and willful misconduct of the injured employee, the compensation otherwise recoverable is reduced one-half, except:
(a) Where the injury results in death;
(b) Where the injury results in a permanent disability of 70 percent or over;
(c) Where the injury is caused by the failure of the employer to comply with any provision of law or any safety order of the Division of Industrial Safety, with reference to the safety of places of employment; or
(d) Where the injured employee is under 16 years of age at the time of injury
The reduction of compensation because of the serious and willful misconduct of the employee is not enforceable, valid, or binding until the Appeals Board has so determined by a Findings and Award, and it is applicable to compensation. Cal. Lab. Code §4552
Title 8, Cal. Code Regs., §10440 and 10445 require that all allegations that an injury was caused by the serious and willful misconduct of the employee must be separately pleaded and must set out in sufficient detail the specific basis upon which the charge is founded so that the adverse parties and the Appeals Board may be fully advised of the basis for the charge.
Cal. Lab. Code §5407.5 states that the period of time within which proceedings for the reduction of compensation on grounds of the serious and willful misconduct of the employee is twelve months from the date of the injury. However, this limitation does not apply in any case where the employee has commenced proceedings for the increase of compensation on the grounds of the employer's serious and willful misconduct. The employer has the burden of proof on the issue of the employee's serious and willful misconduct. Cal. Lab. Code §5705
Serious and Willful Against Employer
Cal. Lab. Code §5407 provides: The period within which may be commenced proceedings for the collection of compensation on the ground of serious and willful misconduct of the employer, under provisions of §4553, is as follows: Twelve months from the date of injury. This period shall not be extended by payment of compensation, agreement therefore, or the filing of application for compensation benefits under other provisions of this division.
Serious and Willful Against Employee
Cal. Lab. Code §5407.5 provides: The period within which may be commenced on the ground of serious and willful misconduct of the employee, under provisions proceedings for the reduction of compensation of §4551, is as follows: Twelve months from the date of injury. However, this limitation shall not apply in any case where the employee has commenced proceedings for the increase of compensation on the ground of serious and willful misconduct of the employer.
If the parties Compromise and Release a claim for serious and willful misconduct benefits, a settlement of a claim for normal workers' compensation benefits does not release the employer from liability for serious and willful misconduct benefits unless the settlement papers include language to the effect that the claim is being released and the employer or its representative sign the release on this point. Ray v. I.A.C. (1956) 21 Cal. Comp. Cases 327
Workers compensation discrimination claims under §132A
The period within which may be commenced proceedings on the ground of discrimination under Cal. Lab. Code §132(a) is “not more than one year from the discriminatory act or date of termination of the employee."
The substance of the provision bars employers and insurers from terminating or otherwise acting in a punitive manner toward an employee (or employer) for an employee filing a worker’s compensation claim or testifying at the WCAB regarding a claim.
Discrimination by way of termination or threats of termination or other such acts can leave the employer and/or the insurer liable for monetary damages up to $10,000 as well as misdemeanor charges.
An answer should be filed denying the allegations as soon as possible.
Cal. Lab. Code §5275 states
(a) Disputes involving the following issues shall be submitted for arbitration:
(1) Insurance coverage.
(2) Right of contribution in accordance with §5500.5.
(b) By agreement of the parties, any issue arising under Division 1 (commencing with §50) or Division 4 (commencing with §3200) may be submitted for arbitration, regardless of the date of injury.
Dismissal for failure to appear (Applicant's Claim And Lien Claims)
Title 8 §10780 states that where a party or a lien claimant is served with notice of trial or conference pursuant to §10240 and fails to appear either in person or by attorney or representative, the workers' compensation administrative law judge may dismiss the application after issuing a notice of intent under CA Code of Regulations §10562. This applies to the applicant and to lien claims.
Dismissal for lack of prosecution
An applicant’s claim can be dismissed for inactivity and lack of Prosecution. Title 8 of the California Code of Regulations, §10582 states:
Unless a case is activated for hearing within one year after the filing of the Application for Adjudication or the entry of an order taking off calendar, the case may be dismissed after notice and opportunity to be heard. Such dismissals may be entered at the request of an interested party or upon the Workers' Compensation Appeals Board's own motion for lack of prosecution. A case may be dismissed after issuance of a ten (10) day notice of intention to dismiss and an opportunity to be heard, but not by an order with a clause rendering the order null and void if an objection showing good cause is filed.
A petition by a defendant to dismiss the case must be accompanied by a copy of a letter mailed to the applicant and, if represented, to the applicant's attorney or representative, more than thirty (30) days before the filing of the petition to dismiss. This letter must state that it is the intention of the persons signing the letter to file a petition for dismissal thirty (30) days after the date of that letter unless the applicant or his attorney or representative shows in writing some good reason for not dismissing the case. A copy of the reply, if any, must be attached to the petition to dismiss. A copy of the petition must be served on all parties and all lien claimants.