What Is the Difference Between Removal and Reconsideration?

When working in the legal system, it is essential to have a firm understanding of the procedures and rules if you are to be successful in your claim or defense.  Workers’ compensation is no exception, and to make sure that your business is protected, having expert legal advice in addition to some basic knowledge about the process can be the difference between successfully defending a claim against your business and having to pay an unfair judgment.  If your business is involved in workers’ compensation litigation, it is possible that the judge could make a decision with which you do not agree.  If that occurs, you have two options to attempt to overturn that decision.

The first option is called a Petition for Reconsideration.  If you have received a final order in your workers’ compensation case from the WCJ, you can file a Petition for Reconsideration.  Under California Labor Code § 5900, a Petition for Reconsideration asks the Workers’ Compensation Appeals Board to intervene in the case.  California case law provides that a final order is one that “determines any substantive right or liability” of the parties in the case.  California Labor Code § 5910 states that the person wishing for the WCAB to reconsider the WCJ’s ruling has just twenty days from the order to file the petition.  The available grounds to file for reconsideration are: 1) the WCJ acted without power or in excess of its power; 2) the order or award was procured by fraud; 3) the evidence is no sufficient to justify the findings of fact; 4) the existence of newly discovered information that was not available previously; or 5) the findings do not support the order or decision.  Filing the petition also has the effect of suspending the order for ten days.

The other option is a Petition for Removal.  In contrast to a Petition for Reconsideration, a removal request is asking for relief from an order that is not a final order.  As with the Petition for Reconsideration, the Petition for Removal must be filed within twenty days of the order from which the requesting party seeks relief.  To be successful, the appealing party must show: 1) the order from the WCJ will result in prejudice; 2) the order will result in irreparable harm to the appealing party; and 3) reconsideration after the final order will not provide an adequate remedy.

Deciding when and how to appeal a workers’ compensation order is a difficult decision.  Contact us today to talk about your proceedings and what we can do to help protect your business.

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.

What Is Subrogation?

The workers’ compensation system was established in 1911 by the California legislature to help provide relief for workers who were injured in the course and scope of their employment.  The system is what is called a “no fault” system, which means that the employee is not required to prove that the injury was the fault of the employer in order to recover for his or her injuries and ongoing disabilities.  In some cases, however, a third party’s actions or inactions may have contributed to the employee’s injury.  Under California Labor Code § 3850, et seq., an employer or the employer’s insurance company may exercise their right to subrogation in this instance.  Subrogation is the right of the employer and/or the insurance company to recover the amount paid under the workers’ compensation suit against a third party.  There are several ways that an employer may use subrogation to recover these expenses.

An employee may seek to recover against a third party whose negligent or even intentional conduct contributed to the accident causing the injury.  An employee may seek to recover, for example, from the equipment manufacturer for faulty safety systems or may sue a negligent driver for a car accident occurring during the course of the employee’s work.  If an employee files his or her own lawsuit against such a third party, an employer has a couple of options.  One option is to serve a Notice of Lien on all of the parties in the lawsuit.  This type of lien is considered a first lien against any recovery obtained by the injured employee.  This means that if the employee obtains a judgment from the lawsuit against the third party, the lien will be paid right after the employee’s attorney fees and legal expenses are paid.  Another option is to intervene in the law suit.  This means that your business will become a party to the lawsuit and will participate in the litigation.

If the employee does not decide to file his or her own lawsuit, your business or your workers’ compensation insurance company still have the independent right to file a lawsuit against a third party.  You should note that the statute of limitations will apply to your business, just as it would apply to the right of the employee to bring his or her own law suit.

If you have questions about subrogation or workers’ compensation, let us answer them.  Call us today for a consultation.

IMR in 2016

When an employee is injured on the job, he or she will need to get medical treatment to proceed with a workers’ compensation claim. The physician will make an assessment of the injury and decide what type of course of treatment will be best to treat and hopefully cure the injured employee. In some situations, an employer can request an Independent Medical Review of the physician’s diagnosis and treatment plan. When a claim is made for workers’ compensation, the claim must go through a “utilization review” process in order to confirm the treatment is medically necessary before the claim is paid out. If the claim is denied, the employee may request an IMR. If an employer believes the claim should not have been approved, the employer may request an IMR. The purpose of instituting the IMR system was done with an eye toward reducing workers’ compensation disputes and speeding settlement, in order to help ease the congestion in the court. A recent analysis done of IMR volume shows that the process is perhaps not meeting its intended purpose.

The California Workers’ Compensation Institute conducted an analysis of almost half a million IMR decision letters from 2014, 2015, and 2016. These letters were from applications submitted to the state after a utilization review physician’s medical service was modified or denied. In 2016, IMR was at record high levels, with 10,477 more cases in 2016 than in 2015. The IMR analysis showed that in over 90% of cases, the IMR upheld the decision to modify or deny a requested medical service. The types of services did not change much, with prescription drug requests comprising over half of all IMRs, 28.5% of which were for opioids. The rate at which the IMRs upheld the decision made by the utilization review varied from 78.9% for evaluation services to 93.6% for acupuncture. The analysis also found that IMR requests varied widely by geographic region, with Los Angeles County and the Bay area representing a disproportionately large amount of IMR requests vis a vis their percentage of involvement in workers’ compensation medical services across the state. Similarly, areas with low population typically had a disproportionately small amount of IMRs, as did Orange County and San Diego.

If you own your own business, you need an experienced attorney to help you navigate the system. Call us today at (714) 516-8188. I can help you understand your business’s obligations and the claims process.

Communication versus Information – Maxham vs. Department of Corrections


In an overwhelming majority of court cases, the parties settle before ever having to see the inside of a court room. The field of workers’ compensation is no exception. Attorneys for both sides are typically experienced and are skilled in obtaining reasonable settlement agreements. There is a lot of paperwork and material exchanged by the attorneys in an effort to get to a settlement or prepare for trial. In some cases, the parties may agree to use an “Agreed Medical Evaluator” in order to help get to a proper settlement. The AME will examine and evaluate the injured worker and determine the level of disability or impairment. In preparation for this evaluation, the attorneys may also send certain letters to the AME. California Labor Code 4062.3 contains rules about what can and cannot be sent to the AME before the evaluation, including medical records from current and previous treating physicians. The attorney may also provide a letter “outlining the medical determination of the primary treating physician,” and a copy of that letter must also be served on the opposing party at least twenty days before the evaluation. Subsection (d) states that if the opposing party objects within ten days to any non-medical records or “information” that is proposed to be sent to the AME, the information shall not be sent unless a judge approves it. An attorney may communicate with the AME without the approval of the other attorney for purposes such as furnishing records and reports or other “nonsubstantive matters.” The difference between “communication” and “information” is therefore crucial, as communication without the “go ahead” from the opposing side is permissible, whereas passing information is not.

In Maxham v. California Department of Corrections and Rehabilitation, the WCAB was faced with the task of clarifying the difference between communication and information. In that case, the applicant’s attorney provided the employer’s attorney with a copy of the proposed “communication” to the AME, which included factual assertions, citation to case law, and summaries of legal principles. The defendant’s attorney timely objected to the letter and asked for portions to be redacted. The attorney for the employee sent the unredacted letter. The WCAB determined that “information” in these cases constitutes records prepared or maintained by a physician and/or medical and nonmedical relevant records. A communication can become information if it contains, references, or encloses medical or non-medical records that are otherwise “information.”

If you have questions about workers’ compensation, call us today at (714) 516-8188. We will discuss your business and what you can do to make sure you are facing workers’ compensation issues head on.

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 [email protected]. 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.

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