Beltran v Structural Steel

Although many may think of the workers’ compensation system as quite adversarial, like other civil law suits, workers’ compensation has some unique features which require that employer and employee work together.  After an employee is injured on the job, he or she will visit a treating physician, who may then determine the worker can only return to work with particular physical restrictions and limitations.  When a worker is determined to be permanently disabled, the employer is obligated to provide accommodations to the injured worker so he or she can return to work.  Where returning to the same position is not possible, the employer will offer the injured worker another position that will pay at least 85% of the salary the injured worker was making in the position he or she was working at the time of injury.  If the employer is unable to make such an offer or the employee refuses the job, then the employee may receive supplemental job displacement benefits (SJDB).  These benefits are given in the form of providing a voucher to the injured worker.  The voucher can then be used by the employee to pay for education, retraining, or skill enhancement at particular accredited schools.  Recent case law from the Workers’ Compensation Appeals Board (WCAB) discusses whether the employer and employee may agree that the employee should receive a SJDB voucher during a settlement.

In Beltran v. Structural Steel Fabricators, the worker Juan Pablo Beltran sustained cumulative trauma injury to his head and back due to heavy work over the course of a year while employed by Structural Steel Fabricators.  After initially denying the claim because Structural Steel alleged Beltran did not submit his workers’ compensation claim until after he was fired from the job, the parties eventually entered into a settlement.  The settlement included language that Beltran was not entitled to a SJDB voucher.  The WCJ rejected the settlement, stating that the parties were not entitled to settle the issue of whether Beltran was entitled to the voucher.  The WCAB disagreed.  The WCAB held that when the parties have a good faith dispute as to whether a worker is eligible for a voucher, the parties may agree on eligibility and include that agreement in a settlement.

We have extensive experience helping our clients with reaching favorable workers’ compensation settlements.  Contact us today and we can talk about 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.

State Compensation Insurance Fund

Under California law, almost all employers are required to maintain workers’ compensation insurance.  This insurance will cover the costs of medical treatment for an employee who sustains injury while working on the job.  California law provides harsh criminal and civil penalties for those employers who fail to abide by this requirement.  In some cases, though, an employer may have difficulty obtaining insurance.  Some companies provide services that are considered “high risk,” and so insurance companies are reluctant to provide insurance to those companies. 

To address this problem, the California State Labor Department created the Workers’ Compensation Joint Underwriting Associations.  The purpose of the WCJUA is to provide a resource for those high risk employers who have a hard time purchasing workers’ compensation insurance.  The primary WCJUA in California is called the State Compensation Insurance Fund (SCIF).  The SCIF may provide workers’ compensation insurance to those businesses that are otherwise unable to obtain coverage on the open market.  SCIF is a non-profit organization and provides the same services as other workers’ compensation insurance providers.  Although the SCIF was established by the California state legislature in 1914, it is not a branch of the California government.  SCIF provides insurance to all types of employers, but is an especially crucial resource for those employers who are unable to purchase insurance elsewhere.  The types of employers who are typically in need of insurance through SCIF are new business owners, business owners with poor premium payment history, or those in a high risk industry.  Typically, in order to be considered hard to place or high risk, an employer must have been rejected by at least three other open-market insurance companies.

There are some drawbacks to the system.  Employers should be aware that even though the state has made it possible for them to buy insurance despite being high risk, the premiums will still be higher than they otherwise would be if they were not engaged in a high risk industry.  The underwriting guidelines for the SCIF are also exceptionally strict and subject to heavier state regulations.  The application is long and meticulous, taking up to a month to obtain an insurance policy.  Finally, out of state work is often excluded from coverage.  If a business has branches in other states, the business may have to purchase insurance in that state as well.  However, on the plus side, the SCIF makes it possible for high risk businesses to comply with the state law requirement to carry workers’ compensation insurance.

Workers’ compensation insurance is a complicated issue and can become further complicated if your business is difficult to place. Call me today at (714) 516-8188 and let me talk with you about your business 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.

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 Violates 132(a)?

California Labor Code 132(a) clearly states that the policy behind this section is that there should not be discrimination against employees who are injured at work. The code goes on to outline that any employer who takes adverse action against an employee due to the employee making a workers’ compensation claim is subject to both civil and criminal penalties. These penalties can be severe, and it is important to have a firm grasp of what does and does not violate the terms of section 132(a).

The most obvious type of violation is where an employer takes direct adverse action that is discriminatory. An employer will expressly violate the statute if the employer terminates or threatens to terminate the employment of an employee because the employee has filed or expressed the intention to file a workers’ compensation claim, the employee receives an award for a workers’ compensation claim, or testified before the Workers’ Compensation Appeals Board for another employee’s claim. The employer will also have expressly violated this section for discriminating against the employee in any way for these same reasons. Discriminatory action can include such actions are not limited to termination; they can also include other adverse actions, such as changing a shift to hours the employer knows the employee cannot work. The law also covers other discriminatory acts by the employer, such as when an employee is penalized for being injured on the job or from missing time from their job due to an injury sustained in the workplace.

Insurers are also included in prohibitions under 132(a). An insurer may not tell an employer to terminate the employee because an employee has filed for workers’ compensation benefits, received an award of workers’ compensation benefits, or testified before the WCAB for another employee’s workers’ compensation claim. Under this section, an insurer is prohibited from telling an employer to fire an employee when that is coupled with a threat to cancel a workers’ compensation insurance police, to raise the insurance premium, or other adverse action against the employer.

These cases are typically filed in conjunction with an underlying workers’ compensation claim. The employee must do more than simply allege that they suffered adverse consequences from the employer. The employee must also prove that they suffered these adverse actions because of their workers’ compensation claim.

It is very important to protect your company from potential claims under 132(a), as a successful suit can be very financially damaging or even fatal to your business. If your business is facing a suit under 132(a), contact me today at (714) 516-8188 to discuss it.

Illegal Immigration and Workers’ Compensation Claims

The interaction between federal immigration law and state law can be complex. This applies even with workers’ compensation issues. California Labor Code Section 1171.5 provides that “all protections, rights and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status . . . who have been employed” in California. Therefore, it is clear that even if a worker is undocumented, he or she is probably still entitled to workers’ compensation. The exception of “any reinstatement remedy prohibited by federal law” was included to prevent California labor provisions from conflicting with federal immigration law. The question can then become exactly what benefits is an employer required to extend when the injured worker is an illegal immigrant?


Case law indicates that an undocumented worker may not be entitled to temporary disability payments. In Cudibo v. Leemar Enterprises and Esparza vs. Barrett Services, it was determined by the WCAB panel that the undocumented workers in those cases were not entitled to temporary disability benefits. There, it is important to note that the employers had information demonstrating the worker’s undocumented status. The employers were also able to show they were willing and able to provide a return to regular or modified work. However, it was determined that the employers were not liable to pay temporary disability even though the worker’s doctors had released them for work, as the employers were unable to allow them to return to work, due to their undocumented status.


Normally, an injured worker may be entitled to a Supplemental Job Displacement Voucher (SJDV) if the injury causes permanent partial disability and the employee does not return to work within sixty days of the termination of temporary disability. The purpose of the voucher is to provide educational school or supplemental training for the injured worker, which the worker may seek at state-approved schools. Under Labor Code Section 4658.5, the amount of the voucher will cost 6,000 for injuries occurring after1/1/2013.


Therefore, when combining federal and state law, is the employer responsible for providing an SJDV if the employer is precluded from allowing the employee from returning to work due to the worker being an undocumented worker?  Logically it would appear that as an employer would not be allowed to permit the worker to come back to work. Therefore, the injured, undocumented worker may not be entitled to an SJDV if appropriate work is available. In the absence of guidance from case law, this area is unresolved.


This area of the law is not as developed and clear as other areas involving workers’ compensation. I am thoroughly experienced, and can answer your questions about your rights and responsibilities regarding undocumented workers and workers’ compensation claims. Contact me at (714) 516-8188 or email [email protected] to set up a consultation to discuss your business and its individual needs.

Risks and Penalties for Failure to Maintain Proper Insurance in California

California law requires that any business with at least one employee or more carry workers’ compensation insurance. The law also provides both civil and even potentially criminal penalties for failing to carry it. Although some businesses may believe insurance is too expensive, the potential penalties for failing to carry it can be severe.

If a business is found without workers’ compensation insurance during an inspection, the Division of Labor Standards Enforcement (DLSE) must serve the business with a stop-work order. This means that the business cannot continue to use employee labor until it purchases the required insurance. If the business ignores the order and continues to use employee labor anyway, this is a misdemeanor. It is punishable with up to 60 days in jail and a fine of up to $10,000. The DLSE can also assess a penalty of $1,000 for each employee, up to $100,000.

In addition, a business can be assessed a monetary penalty. This penalty will be the greater of 1) twice the amount the business would have paid in insurance premiums for the time that the business was uninsured, or 2) $1,500 per employee. Obviously, this penalty can become very hefty, very quickly. There are exceptions to this rule for certain types of partnerships and corporations, depending on who is actually performing the work for the business.

The business can also face heavy repercussions from an injured employee. If an employee is injured on the job while working for an uninsured business, then the business is responsible for all of the employee’s bills related to that injury. The employee is also allowed to file a civil suit against the employer in addition to a workers’ compensation claim.

If the employee files a workers’ compensation claim before the Workers’ Compensation Appeals Board, there could be even more additional penalties assessed against a business that was illegally uninsured at the time of the employee’s injury. If the employees injuries are found to be compensable, then the business may be assessed a penalty of $10,000 per employee who was working for the business at the time of the employee’s injury. Even if the employee’s injuries are found to be non-compensable, the business may still be assessed $2,000 per employee. There is also a 200% assessment for any Premium, for up to 3 years preceding the injury.

It is clear that the risks and penalties for failure to carry the proper insurance can be severe. I can discuss the possible repercussions with you and help navigate you through the complexities of the California requirements for insurance. To set up a consultation to discuss your business, contact me at (714) 516-8188 or email [email protected].

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