What Is the Workers’ Compensation Appeals Board?

As a business owner, you know that taking the right steps for planning, financing, expanding, licensing, and other related activities is essential.  Understanding the right procedures can be the difference between your business’ success and failure.  This is just as true with the workers’ compensation system.  The procedure your business will go through during this process is important to understand in order to protect it and its future.  When a claim is made against your business for workers’ compensation benefits by an injured worker, the claims are usually informally resolved between the injured worker and the insurance adjusted.  If the claims cannot be informally resolved, the issues will be resolved by the workers’ compensation judge (WCJ).  There are a wide variety of issues the WCJ may be asked to decide, ranging from the level of injury sustained by the employee to the authorization for medical treatment.

If either party disagrees with the decision made by the WCJ, that party may appeal that decision to the Workers’ Compensation Appeals Board (WCAB).  The WCAB is made up of seven judges, called “Commissioners,” that are appointed by the governor, and then confirmed by the state senate.  The Commissioners serve in terms of six years.  Out of the seven, three will preside over an appeal.   The appeal is called a Petition for Reconsideration.  As with any appeal, there are strict deadlines, so having an experienced attorney for your Petition for Reconsideration is essential.  Missing a deadline could mean that you waive your right to request reconsideration of the WCJ’s decision.

After the Petition for Reconsideration is filed, each of the three Commissioners assigned to the case will review the petition.  Note that filing a Petition for Reconsideration with the WCAB does not mean that you have a full trial in front of the WCAB; rather, it means that your attorney will file particular documents with the WCAB explaining why the petition has merit.  There are several possible outcomes for the Petition.  First, it is possible the WCAB will simply dismiss the request.  Second, they could affirm the decision of the WCJ and deny the request for reconsideration.  Third, they could grant the request for reconsideration and return the case to the WCJ for additional proceedings.  Finally, they could grant the request for reconsideration and render their own decision.

If you have questions about the workers’ compensation process, you need an experienced team on your side.  Contact us today and we can discuss the procedure and how they will impact your business.

Liens and Angelotti Chiropractic

When a worker sustains a work-related injury, he or she is entitled to seek medical treatment for the initial injury as well as an on-going basis. Workers’ compensation is meant to cover the costs of the treatment, including equipment, therapy, surgery, prescription medication, and a number of other costs. A provider who has supplied services, products, or medicines to an injured worker in a workers’ compensation case can file a lien against the workers’ compensation benefits of the worker. This allows the provider to make sure he or she gets paid. In 2012, a bill came into effect that required lien holders to pay an “activation fee.”  The purpose of this fee was an attempt to clear the large backlog of small liens that were bogging down the system, as well as discouraging providers from filing small claims by making the fee large enough as to render the lien worthless. A case called Angelotti Chiropractic v. Baker challenged the constitutionality of the activation fee. The case claimed that the activation fee was a violation of the Equal Protection clause of the United States Constitution because large institutional lien holders such as union trusts and health care plans were exempt from having to pay the activation fee. The plaintiffs alleged that this was unfair, and either all or no lien holders should have to pay the fee. The court ultimately agreed.

In November 2013, the court approved the request for a preliminary injunction, which prevented the DWC from collecting the activation fee for the liens from before 2013 as well as preventing enforcement of a provision of the new law that would have allowed for dismissal of liens by December 31, 2013 if the activation fee had not been paid.

The Ninth Circuit United States Court later determined that the activation fees were, in fact constitutional. The court dismissed the injunction put in place by the trial court. The court determined that any affected lien claimant who filed a declaration of readiness or attended a lien conference between November 9, 2015 and December 31, 2015 must pay the activation fee. It also determined that pursuant to labor code 4903.06(a)(5). After December 31, 2015, activation fees were no longer accepted by the DWC. Providers should note that the fee for filing liens was completely unaffected by this case.

If you have questions about how workers’ compensation claims are paid, you need an experienced attorney to discuss it with you. Contact us today at (714) 516-8188 for a consultation to discuss your business and how workers’ compensation will impact your business.

Larsen v. Securitas and Violence in the Work Place

The Occupational Safety and Health Administration reports that over two million workers are victims of workplace violence every year.  This often comes in the form of a worker being assaulted by another employee or a client or customer.  When this occurs, in some cases, a worker may seek to receive compensation for injuries through workers’ compensation.  The workers’ compensation system has certain exceptions and rules for work place violence.  One of these special provisions can be found in California Labor Code 4660.1.  This code provision provides that the impairment rating for a worker’s injury shall not be increased for sleep dysfunction, sexual dysfunction, or psychiatric disorder.  An exception to this rule is if the worker was a victim of a violent act.

In the May 2016 case of Deborah Larsen v. Securitas Security Services, the issue became what constitutes a violent act for purposes of the exception under 4660.1.  In that case, Deborah Larsen was acting as a security guard under the employ of Securitas.  She was performing her typical duty of walking patrol through a parking lot when she was hit by a car and sustained injuries.  She claimed that part of the injury included psychiatric disorder.  The employer did not contest that she sustained a work-related physical injury or that she was entitled to compensation as a result.  Instead, the employer argued that she was not entitled to compensation for the psychiatric injury.  Ms. Larsen argued that she was entitled to compensation under the violent act exception contained in 4660.1(c).  The WCAB noted that Ms. Larsen was “hit from behind with enough force to cause her to fall, hit her head, and lose consciousness.”  The Workers’ Compensation Appeals Board determined that this was sufficient to constitute a violent act.  The WCAB also determined that a violent act under 4660.1(c) is not required to be an act that is criminal or quasi-criminal in nature.  Instead, “it may include other acts that are characterized by either strong physical force, extreme or intense physical force, or are vehemently or passionately threatening.”

Another recent case also spoke to the issue of violent injury, and found that the violent act exception did not apply where the psychiatric injury was the result of the industrial accident and not as a result of the compensable physical injury.

If you are an employer and have questions about violence in the workplace in relation to workers’ compensation, call me today at (714) 516-8188. We can discuss your business, workplace violence, and workers’ compensation.

Southcoast Framing v. WCAB and Death Benefits

Workers’ compensation benefits come in a six different potential varieties.  Among these is death benefits.  If a worker is killed because of work-related accident, the worker’s surviving family may apply for and receive survivorship benefits.  The amount awarded will vary depending on the number of dependents that the deceased worker had, as well as when the death occurred.  The dependents may file for survivorship benefits up to 240 weeks after the death occurred.

In a case called Southcoast Framing v. Worker’s Compensation Appeals Board, the California Supreme Court addressed the issue of death benefits and what the surviving spouse and dependents are required to prove.  In that case, Brandon Clark sustained a work-related injury when he fell ten feet, suffering neck, back, and head injuries.  He was prescribed medication by the workers’ compensation physician as well as his own family doctor.  Mr. Clark then died as a result of accidental toxic overdose of a deadly combination of the medications.  Mr. Clark’s surviving widow and three dependent children applied for workers’ compensation survivor benefits.  The Qualified Medical Expert refused to assign a percentage of causation to the medication combination in relation to Mr. Clark’s death.  However, another physician testified that the combination of medication was toxic and lead to Mr. Clark’s death.   The trail judge determined that the combination of the medicines contributed to Mr. Clark’s death and accordingly approved the claim.  The appellate court reversed, holding that the medications were not “a substantial or material cause” of Mr. Clark’s death.

The California Supreme Court noted that the workers’ compensation system in California is a no-fault system designed to ensure that workers receive compensation while the employers are insulated from tort liability.  The Supreme Court ruled that the Court of Appeals inappropriately applied the tort standard of causation, which is incorrect and inappropriate in light of the no-fault system under workers’ compensation.  The Court also pointed out that it is the role of the legislature to extend or expand the burden of proof for death benefits cases, not that of the courts.  Because the legislature had decided that the application of proximate cause as the standard in workers’ compensation cases, the Supreme Court would not rule a different standard was appropriate.  Mr. Clark’s widow and children were permitted to recover survivorship benefits because the medication was used by Mr. Clark to treat his work-related injury and were the ultimate cause of his death.

If you have questions about survivorship benefits in workers’ compensation cases, contact me today at (714) 516-8188. We can discuss the state of the law and how that might impact your business.

Home Healthcare and Workers’ Compensation

For obvious reasons, workers’ compensation is intricately intertwined with the health care industry. This may include hospital stays, physical therapy, chiropractic services, psychological treatment, or an enormous variety of other services, depending on the nature of the work-related injury. With respect to home healthcare, employers need to be aware of two different potential issues that are related to workers’ compensation.

The first potential issue is if the employer’s own business is to provide home healthcare services. In California, it is required that all employers provide workers’ compensation insurance for all of their employees, with a few limited exceptions. The home healthcare industry is not one of those exceptions, in and of itself. In other words, chances are that your home healthcare business is required by California law to carry workers’ compensation insurance. Although home healthcare is not typically thought of as a “high risk” industry, there are many hazards inherent in the home healthcare business. Home healthcare providers are always inside of unfamiliar homes that may not be very clean or safe. Even if the home is completely free of typical hazards, simply being unfamiliar with surroundings can lead to more injuries. Accordingly, it is essential that home healthcare business owners not ignore the workers’ compensation insurance mandate.

The other potential issue could be whether an employer of a worker who has sustained work-related injuries is required to pay out a claim for home healthcare. This issue was addressed in a WCAB case called Hernandez v. Geneva Staffing, Inc. that was handed down in June 2014. In that case, a worker had a severely injured hand and received home healthcare services from his wife. He submitted a claim to his employer for payment for those home healthcare services. The employer denied the claim, based on the fact that the employee failed to provide a valid medical prescription for the home healthcare services. The WCAB explained that an employer may be liable to pay for home healthcare services where certain conditions are met, such as a valid medical prescription. The WCAB also explained that the amount that the employer may be liable for is limited by the Official Fee Schedule.

Employers of any industry have many responsibilities toward their employees when it comes to workers’ compensation. Call me today at (714) 516-8188 and let me review your business’s obligations with you.

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.

Proposition 64 and Safety-Sensitive Fields

In November 2016, Californians voted to pass the ballot measure of Proposition 64.  This law legalized the recreational use of marijuana in private homes and businesses for residents who are 21 years of age or older.  Legalization for purposes of recreational use at the state level does not give employees carte blanche to get high and come to work, however.

Proposition 64 will be added to the California Health and Safety Code as Section 11362.45.  The law includes a provision that states that nothing in the law should be interpreted in such a way as to preempt the ability and right of an employer to maintain a drug and alcohol work place.  The law also states that an employer cannot be forced to accommodate the use of marijuana in the work place.  Finally, it also states that employers are free to continue to have policies that prohibit the use of marijuana by employees or prospective employees.  Also of note is that the law does not differentiate between medical use and recreational use of marijuana.  Employers are free to continue to prohibit marijuana use even if that use is medicinal.  Federal and state law requires that employers make reasonable accommodation for a disability, but the new law does not require that employers make accommodation for drug use.

This is all a logical set of restrictions when it comes to safety-sensitive professions.  Construction workers and truck drivers face high incidences of work-related injuries, and are in fact some of the most safety-sensitive fields in California.  The law provides that employers may continue to craft policies and hiring and firing practices that will ensure their employees are sober and drug-free.  California labor code § 3600(a)(4) precludes employer liability for a claim of workers’ compensation where the injury was at least proximately caused by intoxication or the unlawful use of a controlled substance.  Now that marijuana is legal for adults to consume even without a prescription, employers must rely on the fact an employee was intoxicated at the time of the injury, as opposed to use of marijuana. Of note is that OSHA has new rules that prohibit blanket post-accident drug tests, so a post-accident drug testing policy needs to accommodate this regulation.

If you have questions about your employees’ use of marijuana and how it may impact your workers’ compensation system, contact me today at (714) 252-7078.  We can discuss your business and make sure you are in compliance with the current law.

Stipulation and Award

After a worker sustains a work-related injury and the workers’ compensation claim has been filed, the case must come to some sort of conclusion. One way is that the parties will go before the Workers’ Compensation Appeals Board and let a judicial officer make the decisions. Another option is a form of settlement referred to as “stipulation and award.”

A “stipulation and award” has the same effect as an order that is decided upon by a judge. The difference is that the parties have come to an agreement on the issues, and submit this agreement to the judge. The judge will review the agreement, and as long as it is equitable, the judge will sign it, making it a court order.

Under this type of settlement, the parties will need to come to an agreement on the degree of permanent disability suffered by the injured employee. The degree of permanent disability is governed by a particular formula. The percentage of disability will determine the amount of weekly payment that the injured employer will receive. The parties will also have to come to an agreement of the duration of the payments, i.e. the number of weeks the injured worker will receive payments.

The settlement will also need to dictate whether the injured employee will continue to require medical treatment for the work-related injury. If the injured employee does need continuing medical care for the injury, then he or she will need to continue to submit those claims to the insurance carrier. The insurance carrier will, in turn, make a decision as to whether or not to approve the medical treatment.

One thing to remember about a stipulation and award is that it does not usually result in as large a payment to the employee as the other common type of settlement, which is called “compromise and release.”  In that type of settlement, the employee receives a lump sum and the case is closed completely. Moreover, in a stipulation and award settlement, the employee has the opportunity to reopen the case at a later time (as long as it is within 5 years of the original injury) if the injury becomes aggravated and requires additional medical treatment to cure or treat.

It is very important to understand the different options available to potentially settle a workers’ compensation claim brought against your business. If your business is facing a workers’ compensation claim, contact me today at (714) 516-8188 to discuss it and how I can help your business.

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.

Forum Selection and California Code 925

In 2016, there were many laws that came before the Governor of California concerning workers’ compensation. Some were vetoed and some passed, each of which slightly changes the landscape of workers’ compensation law here in California. An important change in the law came in the form of S.B. 1241, which after ratification is now California Labor Code Section 925. This bill takes effect January 1, 2017 and changes the way that California employers can structure their contracts. Forum selection clauses are quite common in employment contracts and handbooks. These clauses typically state that the parties to the contract (i.e. the employer and employee) agree that any disputes arising out of the employment shall be subject to binding arbitration, or may also state the parties agree to submit their disputes to a jurisdiction outside of the State of California. As of today, any employee may sign one of these contracts before beginning employment, if so requested by his or her employer. However, under the new terms of the Labor Code, an employee that is not individually represented by an attorney during the employment negotiation may not be required to sign a contract for employment that includes:

1) to adjudicate a case outside of California if the claim arises in California; or

2) deprive the employee of the protections under California law if the claim arises in California.

To be eligible for these protections, an employee must primarily reside and work in California. Moreover, the section only applies to contracts “entered into, modified or extended on or after January 1, 2017.”

The language of the statute specifically states that employer cannot be forced to sign the contract as a “condition of employment.”  It is therefore not clear if the forum selection could be enforced on optional benefits.

So, what does this mean for workers’ compensation?  An employer may not require an employee to sign a contract that agrees that and work-related injury disputes, 132(a) claims, or other disputes relating to industrial injuries must be submitted to arbitration or must be decided in a court outside of California. This is true even of companies that are headquartered outside of California. Unless an employee has his or her own lawyer to negotiate the terms of the forum selection clause, then an employer may not compel an employee to sign a contract waiving his or her ability to litigate work-related injuries as a condition of employment. Clearly the legislature intends that each employee who works primarily in California to have the full protection of workers’ compensation laws in this state.

If you have questions about how the new law impacts your company’s current workers’ compensation forum selection, contact me today at (714) 516-8188. We will discuss your contract and ensure compliance with the new law.

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