Exclusivity Rule

Every employer takes all precautions possible to prevent any type of injury from occurring in the work place.  Unfortunately, sometimes even the most cautious and meticulous of employers cannot prevent all injuries to its workers. When this happens, the employee who has incurred a work-related injury may file for compensation under workers’ compensation provisions of California law.  In some rare cases, however, employees who have sustained work-related injuries may attempt to recover damages through other means, other than workers’ compensation.  The California Labor Code and associated case law has strict provisions about when such a course of action may be permissible.

California Labor Code section 3600 contains the statute that codifies what is colloquially known as the “Workers’ Compensation Exclusivity Rule.”  The exclusivity rule provides that the workers’ compensation system is the exclusive method by which the employee may recover for a work-related injury, as long as this injury is incurred during the course and scope of the employee’s employment.  The workers’ compensation system is a no-fault system.  This means that an injured employee does not have to prove that an employer is responsible for the injury, only that the injury occurred during work and in the scope of employment.  However, in a civil case brought in a traditional court room, an employee would be required to prove fault, or at least negligence.  The trade-off is that in the workers’ compensation system, the injured worker is limited in the amount and type of damages that he or she may request or be awarded.  However, in a tort suit (meaning the type of suit that is brought in a “traditional” court room), an injured worker could ask for a larger variety of damages, including medical expenses, lost wages, lost capacity, and loss of household services, in addition to the damages that could be alleged by the spouse of the injured employee.

However, the exclusivity rule prevents an injured worker from seeking to bring a civil suit against an employer at the same time that he or she brings a workers’ compensation suit.  In other words, injured employers are prevented from bringing a workers’ compensation suit in addition to a civil suit.  There are exceptions to the exclusivity rule, though.  These exceptions include such issues as employer assault, fraud, and an uninsured employer.  If an exception applies, though, there are still rules that apply to prevent an employee from receiving a double recovery.

If you have questions about the exclusivity rule or other issues relating to how an employee may recover against his or her employer, contact us today at (714) 252-7078.

What is a Medical-Legal Evaluation?

If an employee sustains a work-related injury, there is a lengthy process of reports, evaluations, and paperwork involved in a claims process. This starts immediately with the worker reporting the incident and the employer reporting to its insurance company. Part of the process involves a medical-legal evaluation. If either the employer or the employee does not agree with the opinion of the employee’s treating physician, they may request a medical-legal evaluation in order to obtain a new medical opinion.

A medical-legal evaluation is a special kind of doctor’s appointment scheduled for the employee. This appointment will involve the employer’s attorney (or the insurer’s attorney), the employee’s attorney, the employee, and a neutral doctor. The neutral doctor is called a Qualified Medical Examiner, and this doctor will have completed special training through the state to obtain this license. The doctor’s job in these situations is to evaluate the employee’s injury. The doctor will determine a variety of medical issues, including whether the injury was a work-related injury, if the injury was sustained in the manner described by the employee, and the degree of disability. The doctor will also assess what type of improvement has occurred, whether the impairment resulting from the injury is permanent, and whether future medical treatment will be necessary. Finally, the doctor may provide an opinion on whether the employee will ever be able to return to the same line of work. Of note is that this doctor does not provide treatment to the employee. The doctor or team of doctors providing treatment or therapy to the employee will be a different set of doctors entirely. The purpose of the doctor associated with the medical-legal evaluation is to be neutral, and not the same medical professionals involved in the rest of the employee’s treatment.

Recent trends in California case law demonstrate there are interesting issues surrounding telemedicine and medical-legal evaluations. In a 2016 case, the WCAB rejected the effectiveness of a medical-legal evaluation where the evaluator performed his examination via interactive audio/video telecommunication and used a designated chiropractic specialist to conduct the physical examination while he was only present electronically. The WCAB concluded that it was not certain whether such a method complied with California regulations that require the doctor have at least 20 minutes of “face time” during the evaluation.

Medical-legal evaluations can be a key component in challenging an employee’s medical status. and I have extensive experience with these evaluations. Call me today at (714) 516-8188 and let me help you with your pending workers’ compensation case and with deciding such an evaluation is right for your case.

What to Expect from a WCAB Hearing

The nature of a workers’ compensation proceeding is not like the trials shown on television. First, a traditional trial is held before a judge or a jury. There is often a “gallery,” which means the rows of benches where the trial can be observed. If a traditional trial does not finish all in one day, the case typically continues the very next day, or soon thereafter. However, a workers’ compensation claim is a bit different, but does have some similarities. When a claim is made, the attorneys for both sides will try to settle the issues before it has to go to before a judge. Like a traditional case, attorneys may successfully settle all, none, or just some of the issues. For example, in a workers’ compensation case, it may be possible for the attorneys to agree on the fact the injured person was an employee at the time of the incident, and the incident did result in a work-related injury, and then only have to proceed to trial on the remaining issue of degree of disability and related medical issues. If the attorneys are unsuccessful in settling all of the issues, a typical case would proceed to trial before a trial judge or a jury. A workers’ compensation claim, however, will go before the Workers’ Compensation Appeals Board (WCAB). The claim will be tried by a workers’ compensation judge. A jury is not an option in a WCAB proceeding. If the trial does not finish the same day, it is likely that instead of continuing the very next day like a traditional trial, the workers’ compensation matter will not be reconvened until a set day that may be several months away. Like a traditional trial, both sides will be permitted to call witnesses to support their version of events. These witnesses may include co-workers, supervisors, or medical professionals, depending on what issues need to be resolved at the WCAB. After the evidence is completed, the WCAB judge will probably not provide his or her decision on the same day. This is typically called taking something “under submission ” and it often happens in a traditional courtroom, as well. Eventually the judge will make a decision, and the attorneys will receive notice of that decision. If either side is unhappy with the result, they may file an appeal, which is called a “Petition for Reconsideration.”  If that occurs, the end of the case will again be delayed.

There are many similarities between traditional court and the WCAB. If you have questions about the differences, I am ready to answer your questions. I am experienced in how to navigate the unique nature of the WCAB and look forward to discussing your case with you. Call me today at (714) 516-8188 for an appointment.

Discovery, Witness Statements, and Attorney Work-Product

Discovery is a process used in most legal proceedings. This process allows the attorneys for the parties to receive copies of documents the other side has in their possession or control or to obtain statements given under oath. The process can include a variety of different tools, including depositions, interrogatories, requests for admissions, or requests for production of documents. While depositions may be used against other parties as well as witnesses, interrogatories and other written requests for discovery may only be served upon the opposing party. These written instruments may request disclosure of medical history, company policy, copies of disciplinary write-ups or any other document or statement, as long as the request is reasonably designed to lead to admissible evidence. In the event of a workers’ compensation claim, it is not uncommon for an employee’s attorney to demand copies of witness statements that are in the employer’s possession. These witness statements are sometimes discoverable, but can sometimes be protected, at least for a time.

 

An attorney can sometimes claim work product privilege to protect any witness statements from the other side. In order for this to apply, the statement needs to have been taken by the attorney, at the attorney’s own behest. For the witness statement to unconditionally apply, meaning that the statement never would have to be produced, the statement would have to be somehow inextricably linked to the attorney’s own statements that reveal impressions and feelings about the witness and the statement he or she was making. In some situations, recorded statements made by the attorney or at the attorney’s direction could also be protected.

 

It is up to the party claiming that the witness statement is privileged to make the showing to the court or other tribunal that the witness statement falls under the work product exception in order to invoke this privilege. It does not simply apply automatically.

 

If a witness or other person creates his own document or statement and sends it to the attorney, the privilege does not apply. The attorney’s simple possession of the document does not automatically make it into the attorney’s work-product, subject to the privilege. The California Supreme Court has also determined that a list of witnesses made by the attorney is likewise not subject to the privilege.

 

The area of discovery is broad and complex. To discuss how to make sure your witness statements are protected before your case starts, contact me at (714) 516-8188 or email wcabdefense@hotmail.com. I will be happy to talk with you about your business and how to set up a plan to make sure any statements or documents are protected.

Ratings and Reviews

CBLS