You have no items in your shopping cart.
Search
Filters

California Workers’ Compensation Practice

Handle workers' compensation matters with ease using this essential, practice-oriented guide.

“The keystone to any workers' compensation practitioner's library. It provides a thorough list of cases, statutes, and forms and is my go-to guide for the daily issues that come up in practice. I have visited and revisited its chapters often and don't doubt that I will continue to do so.”
Gregory Grinberg, Law Office of Gregory Grinberg, San Mateo

Handle workers’ compensation matters with ease using this essential, practice-oriented guide.

  • Includes changes enacted by SB 863 and its implementing regulations
  • Covers matters on behalf of applicants, employers, and insurers
  • Comprehensive discussion of temporary and permanent disability
  • Complete coverage from medical treatment through filing and review
  • Multiple time-saving forms and checklists
OnLAW WC94150

Web access for one user.

 

If you are signed in and a new attorney, your adjusted cost appears below.

$445.00
Print WC33150

4th edition, 2 looseleaf volumes, updated 3/17

 

If you are signed in and a new attorney, your adjusted cost appears below.

$445.00
Add Forms CD to Print WC23156
$59.00
Add OnLAW to print WC94150(40)
$99.00
“The keystone to any workers' compensation practitioner's library. It provides a thorough list of cases, statutes, and forms and is my go-to guide for the daily issues that come up in practice. I have visited and revisited its chapters often and don't doubt that I will continue to do so.”
Gregory Grinberg, Law Office of Gregory Grinberg, San Mateo

Handle workers’ compensation matters with ease using this essential, practice-oriented guide.

  • Includes changes enacted by SB 863 and its implementing regulations
  • Covers matters on behalf of applicants, employers, and insurers
  • Comprehensive discussion of temporary and permanent disability
  • Complete coverage from medical treatment through filing and review
  • Multiple time-saving forms and checklists

1

Workers' Compensation and Other Remedies

Charles Lawrence Swezey

  • I. INTRODUCTION
    • A. Scope of Chapter 1.1
    • B. Historical Background of Workers' Compensation Laws 1.2
  • II. CALIFORNIA'S WORKERS' COMPENSATION SYSTEM
    • A. How the System Differs From Tort Law 1.3
      • 1. Liability Without Fault 1.4
      • 2. Compulsory Insurance 1.5
      • 3. Automatic Payment; Notice 1.6
      • 4. Limited Benefits 1.7
      • 5. Expeditious Machinery for Resolving Disputes 1.8
        • a. Mandatory Dispute Resolution Procedures
          • (1) Compensability, Permanent Disability, and Medical Treatment 1.9
          • (2) Supplemental Job Displacement Benefit 1.10
          • (3) Arbitration 1.11
          • (4) Negotiated Resolutions 1.12
        • b. Information and Assistance Officers 1.13
          • (1) Available Services 1.14
          • (2) Tolling of Limitations Periods 1.15
        • c. Dispute Resolution By WCAB 1.16
          • (1) Board Proceedings Not Bound by Rules of Evidence or Procedure 1.17
          • (2) Representation at Board Proceedings 1.18
          • (3) Full Disclosure 1.19
    • B. Antifraud Provisions 1.20
      • 1. Activities Subject to Criminal or Civil Penalties 1.21
      • 2. Effects of Fraud Violation 1.22
      • 3. Reporting Fraud 1.23
    • C. Employer's Obligations
      • 1. Duty to Give Notice 1.24
        • a. Notices Before Injury 1.25
        • b. Claim Form and Notice After Injury 1.26
        • c. Continuing Duty to Give Notices 1.27
      • 2. Duty to Respond to Claim Form
        • a. Employee Files Claim Form 1.28
        • b. Employer Response to Filing 1.29
        • c. Acceptance or Rejection of Claim 1.30
      • 3. First Payment of Temporary Disability Indemnity or Delay Notice 1.31
      • 4. Additional Notices 1.32
      • 5. Duty to Transmit Claims Data 1.33
  • III. CIVIL DAMAGES
    • A. Both Workers' Compensation Benefits and Civil Damages May Be Available 1.34
    • B. Workers' Lawsuits
      • 1. Lawsuits Against Third Parties 1.35
      • 2. Lawsuits Against Employers
        • a. Exclusive Remedy Rule 1.36
        • b. Civil Damages or Workers' Compensation? 1.37
        • c. Uninsured Employer 1.38
        • d. Statutory and Other Exceptions 1.39
      • 3. Lawsuit Against Coemployees 1.40
      • 4. Lawsuit Against Compensation Insurers 1.41
      • 5. Lawsuit Against Independent Adjusting Agents 1.42
    • C. Employer's Reimbursement and Credit Rights 1.43
  • IV. COLLATERAL BENEFITS
    • A. State Disability Benefits
      • 1. Unemployment Disability Compensation 1.44
      • 2. Family Temporary Disability Insurance 1.45
    • B. Other Disability Insurance 1.46
    • C. Unemployment Insurance 1.47
    • D. Sick Leave, Vacation Pay, Wages, and Fringe Benefits 1.48
    • E. Medical Leave Acts 1.49
    • F. Medical Insurance 1.50
    • G. Protection for Disabled Workers 1.51
      • 1. Americans with Disabilities Act 1.52
      • 2. California Fair Employment and Housing Act 1.53
      • 3. Further Information 1.54
    • H. Social Security 1.55
    • I. Veterans' Benefits 1.56
    • J. Uninsured Motorist Insurance 1.57
    • K. Victim of Violent Crime Indemnification 1.58
    • L. Welfare 1.59
  • V. FEDERAL REMEDIES
    • A. Longshore and Harbor Workers' Compensation Act
      • 1. Coverage
        • a. Injured Worker Must Meet Both Status and Situs Tests 1.60
        • b. State Law May Also Apply 1.61
      • 2. Procedure 1.62
      • 3. Third Party Suits 1.63
    • B. Other Federal Compensation Acts
      • 1. Federal Employees' Compensation Act 1.64
      • 2. Defense Base Act 1.65
      • 3. Outer Continental Shelf Lands Act 1.66
      • 4. Private Employees on Federal Lands and Buildings 1.67
    • C. Seamen's Remedies
      • 1. Maintenance, Cure, and Wages 1.68
      • 2. Unseaworthiness 1.69
      • 3. Jones Act 1.70
        • a. Jones Act Coverage 1.71
        • b. Where to File; State Law May Also Apply 1.72
      • 4. Death on the High Seas Act 1.73
    • D. Federal Employers' Liability Act 1.74

2

Jurisdiction

Colleen S. Casey

  • I. WORKERS' COMPENSATION APPEALS BOARD
    • A. Constitutional and Legislative Authority 2.1
    • B. Composition 2.2
    • C. Jurisdiction and Judicial Powers 2.3
    • D. Basic Jurisdictional Limits
      • 1. Compensable Injury Required 2.4
      • 2. Jurisdiction Must Be Established 2.5
      • 3. Limited Jurisdiction 2.6
      • 4. Personal Jurisdiction Required 2.7
      • 5. Cannot Declare Statute Unconstitutional 2.8
      • 6. Termination and Reservation of Jurisdiction 2.9
      • 7. Continuing Jurisdiction 2.10
      • 8. Fraud Conviction 2.11
      • 9. Carve-Out Programs 2.12
    • E. Exclusive Jurisdiction 2.13
    • F. Exclusive Remedy Rule 2.14
      • 1. Acts Outside of Normal Employment Relationship 2.15
      • 2. Violation of Public Policy 2.15A
      • 3. Discrimination Claims 2.15B
      • 4. Statutory Exceptions 2.15C
      • 5. Administrative Director's Powers 2.16
  • II. PREREQUISITES FOR RECOVERY 2.17
    • A. Specific Conditions of Compensability 2.18
      • 1. Subject to Workers' Compensation Laws 2.19
      • 2. Performing Services Related to Employment 2.20
        • a. Personal Comfort and Convenience 2.21
        • b. Lunch and Coffee Breaks 2.22
        • c. Bunkhouse Rule 2.23
      • 3. Proximate Cause
        • a. General Rules 2.24
        • b. Examples of Injuries or Conditions Caused by Employment 2.24A
      • 4. Intoxication 2.25
      • 5. Self-lnflicted Injuries 2.26
      • 6. Suicide 2.27
      • 7. Initial Physical Aggressor 2.28
      • 8. Felony Convictions 2.29
      • 9. Restriction for Recreational, Social, and Athletic Activity 2.30
      • 10. Posttermination or Layoff Claims
        • a. Physical Injuries 2.31
        • b. Posttermination Psychiatric Injuries 2.32
    • B. Arising Out of Employment 2.33
      • 1. Condition of Employer's Premises or Equipment 2.34
      • 2. Extraneous or Unknown Source: Positional Risk or Zone of Danger Rule 2.35
      • 3. Employment Risks Versus Personal Risks 2.36
        • a. Personal Risk 2.37
        • b. Mixed Risk 2.38
        • c. Neutral Risk 2.39
      • 4. Employee's Preexisting Conditions; Normal Bodily Movements 2.40
      • 5. Horseplay 2.41
    • C. Occurring in Course of Employment 2.42
      • 1. Unauthorized or Forbidden Activities 2.43
      • 2. Commercial Travelers; Travel Between Worksites 2.44
      • 3. Before and After Work Hours 2.45
      • 4. Going and Coming Rule 2.46
        • a. Employer-Provided Transportation 2.47
        • b. Special Mission or Errand Doctrine 2.48
        • c. Special Risk Exception 2.49
        • d. Restatement of Going and Coming Rule 2.50
      • 5. Telecommuting 2.50A
      • 6. Traveling to or From Medical Appointments 2.50B
    • D. "Injury" Defined
      • 1. Injury Versus Disability 2.51
      • 2. Disease 2.52
      • 3. Psychiatric Injury
        • a. General Criteria (Lab C §3208.3) 2.53
          • (1) 6-Month Requirement 2.54
          • (2) "Sudden and Extraordinary" Exception 2.54A
          • (3) Physical-Mental Injuries 2.55
        • b. Good Faith Personnel Action Defense 2.56
        • c. Posttermination Psychiatric Injury Claims 2.57
        • d. State Prison Inmates 2.58
      • 4. Other Compensable Injuries 2.59
  • III. ESTABLISHING EMPLOYMENT RELATIONSHIP
    • A. "Employer" Defined; Exclusions 2.60
    • B. "Employee" Defined 2.61
      • 1. Presumption of Employee Status 2.62
      • 2. Employees Included by Statute 2.63
      • 3. Judicial Inclusions 2.64
      • 4. Inclusion by Election 2.64A
    • C. Excluded Persons and Occupations
      • 1. Employees Excluded by Statute 2.65
        • a. Residential and Personal Employees
          • (1) Time and Salary Limitation (Lab C §3352(h)) 2.66
          • (2) Family Member Limitation (Lab C §3352(a)) 2.67
          • (3) Exception From Exclusion for Residential Worker Whose Employer Is Uninsured 2.68
        • b. Athletic Activities: Participants and Officials 2.69
        • c. Services for Charities 2.70
        • d. Ski Resort and Recreational Camp Workers 2.71
        • e. Deputies 2.72
        • f. Disaster Workers 2.73
        • g. Other Excluded Employees 2.74
        • h. Employees Temporarily Working in California
          • (1) General Rules 2.74A
          • (2) Rules Applicable to Professional Athletes
            • (a) Claims Filed on or After 9/15/2013 2.74B
            • (b) Claims Filed Before 9/15/2013 2.74C
      • 2. Independent Contractors
        • a. Definition; Right to Control 2.75
        • b. General Factors 2.76
        • c. Rebuttable Presumptions 2.77
      • 3. Volunteers 2.78
      • 4. Employees Under Federal or Tribal Jurisdiction 2.79
    • D. General and Special Employment 2.80
      • 1. Evidence of Special Employment 2.81
      • 2. Joint and Several Liability 2.82
      • 3. Temporary Employees Assigned by Agency 2.83
      • 4. Jurisdiction Over Workers' Compensation Insurers 2.84
  • IV. CONCURRENT JURISDICTION
    • A. Uninsured Employer 2.85
    • B. Jurisdiction to Determine Jurisdiction 2.86
      • 1. Res Judicata 2.87
      • 2. Collateral Estoppel 2.88
      • 3. Forum Selection Clause 2.88A
  • V. EXTRATERRITORIAL JURISDICTION
    • A. Contract of Hire Made in California 2.89
    • B. Contract of Hire Made Outside California 2.90
    • C. Serious and Willful Violation 2.91
    • D. Choice of Law 2.92
    • E. Full Faith and Credit 2.93
    • F. Ceding Jurisdiction
      • 1. Statutory Reciprocal Cession 2.94
      • 2. Inconvenient Forum 2.95
  • VI. INCIDENTAL POWERS AND JURISDICTION
    • A. General Powers 2.96
      • 1. Contempt 2.97
      • 2. Sanctions 2.98
      • 3. Service of Process 2.99
    • B. Subpoena Power 2.100
    • C. Rule-Making Power 2.101
    • D. Employers' Injury Reports 2.102
    • E. Guardians, Trustees, and Conservators; Payments to Minors 2.103
      • 1. Appointment of Guardian 2.104
      • 2. Appointment of Conservator 2.105
      • 3. Appointment of Trustee 2.106
      • 4. Supervision of Trusts 2.107
    • F. City, County, and State Employees 2.108
      • 1. Lab C §§4800–4800.5 Jurisdiction 2.109
      • 2. Industrial Disability Leave Jurisdiction 2.110
      • 3. Lab C §§4850–4850.7 Jurisdiction 2.111
      • 4. Expansion of WCAB's Jurisdiction 2.112
    • G. Compromises and Releases 2.113
    • H. Liens on Compensation 2.114
    • I. Restitution of Overpayment 2.115
    • J. Payment for Subsequent Injuries 2.116
    • K. Contribution Among Employers or Insurers
      • 1. Cumulative Injury; Occupational Disease 2.117
      • 2. General and Special Employment 2.118
    • L. Arbitrating Insurance Controversies 2.119
    • M. Discrimination; Reinstatement With Back Pay 2.120
    • N. Jurisdiction Over Representatives 2.121
    • O. Administrative Appeals 2.122
    • P. Longshore Act Disputes 2.123
    • Q. Pension Plans; Labor Agreements 2.124
    • R. Negligence and Damages Findings 2.125
    • S. Other Powers and Restrictions 2.126
  • VII. EQUITY JURISDICTION
    • A. Reformation: Compromises, Insurance Policies 2.127
    • B. Death Benefit Distribution 2.128
    • C. General Principles; Laches 2.129

3

Medical Treatment

Colleen S. Casey

  • I. MEDICAL TREATMENT BENEFITS
    • A. All "Reasonably Required" Medical Services 3.1
    • B. Medical Treatment May Be Unlimited 3.2
    • C. Scope of Medical Treatment
      • 1. Treating Physicians 3.3
      • 2. Physician Assistants and Nurse Practitioners 3.4
      • 3. Psychologists/Family Counselors 3.5
      • 4. Home Health Care Services 3.6
        • a. Who May Prescribe Services 3.7
        • b. How Services May Be Prescribed 3.8
        • c. Limits on Employer's Liability for Services 3.9
        • d. Services May Be Provided by Family Member 3.10
      • 5. Housekeeping Services 3.11
      • 6. Medical Rehabilitation 3.12
    • D. Expenses Related to Medical Treatment
      • 1. Transportation Expenses 3.13
      • 2. Expenses for Requested Medical-Legal Examinations 3.14
  • II. PROVISION OF MEDICAL TREATMENT
    • A. Employer Obligated to Provide All Required Treatment 3.15
    • B. Control of Medical Treatment
      • 1. Employer Makes Initial Choice of Treating Physician 3.16
      • 2. When Employee May Choose Treating Physician 3.17
        • a. Must Be Within Reasonable Geographic Area 3.18
        • b. Procedure for Choosing Treating Physician 3.19
        • c. Not Limited to One Choice 3.20
      • 3. Right to Request Change of Employer-Selected Physician 3.21
      • 4. Predesignation of Personal Physician 3.22
        • a. Conditions Under Which Employee Can Predesignate Physician 3.23
        • b. Who Is Eligible to Be Designated as Personal Physician 3.24
        • c. Procedure for Predesignation 3.25
        • d. If Employer Has a Medical Provider Network (MPN) 3.26
        • e. Claims Administrator's Duties 3.27
        • f. Provision of Emergency Medical Treatment 3.28
        • g. No Prior Employer Contact With Predesignated Physician 3.29
        • h. Resolution of Disputes 3.30
        • i. When Predesignated Physician Is Unable to Provide Treatment 3.31
      • 5. Changing Physician at Employer's Request
        • a. Must File Petition to Change Primary Treating Physician 3.32
        • b. Must Show Good Cause 3.33
        • c. Form and Contents of Petition 3.34
        • d. Response to Petition 3.35
        • e. Administrative Director's Decision 3.36
        • f. Review of Administrative Director's Order 3.37
      • 6. Transfer Into Newly Established MPN 3.38
      • 7. Loss or Relinquishment of Medical Control 3.39
    • C. Role of Primary Treating Physician
      • 1. Primarily Responsible for Care of Injured Employee 3.40
      • 2. Limitation on Chiropractor as Primary Treating Physician 3.41
      • 3. Reporting Duties 3.42
        • a. First Report of Injury (Form 5021) 3.43
        • b. Progress Reports
          • (1) When Required 3.44
          • (2) Form and Contents 3.45
        • c. Permanent and Stationary Reports
          • (1) Existence and Extent of Permanent Disability 3.46
          • (2) Return-to-Work and Voucher Report 3.47
    • D. Secondary Physicians 3.48
    • E. Medical Treatment Utilization Schedule (MTUS)
      • 1. Medical Treatment Must Be Based on MTUS 3.49
      • 2. Contents of MTUS 3.50
        • a. ACOEM Guidelines
          • (1) General Approaches 3.51
          • (2) Clinical Topics 3.52
        • b. AD's Treatment Guidelines for Special Topics 3.53
      • 3. Rebuttable Presumption that MTUS Is Correct 3.54
      • 4. If MTUS Does Not Address Condition or Injury 3.55
      • 5. Medical Evidence Search Sequence 3.56
        • a. When MTUS Does Address Condition or Injury 3.57
        • b. When Rebutting MTUS 3.58
        • c. Format of Citations 3.59
    • F. Utilization Review (UR)
      • 1. Mandatory Process to Review Medical Treatment Requests 3.60
      • 2. Establishing UR Process 3.61
        • a. Written Policies and Procedures to Ensure Compliance With MTUS 3.62
        • b. Description of UR Process 3.63
        • c. Filing With Administrative Director 3.64
        • d. Modifications to UR Process 3.65
        • e. Process Must Be Publicly Available 3.66
      • 3. Request for Authorization 3.67
        • a. When Employer May Defer Submitting Request to UR 3.68
        • b. Employer May Request Reasonably Necessary Additional Information 3.69
      • 4. Who May Make UR Decision 3.70
      • 5. Deadlines for Making UR Decision 3.71
        • a. Determining Date of Receipt 3.72
        • b. Prospective or Concurrent Review
          • (1) Definitions 3.73
          • (2) General Rule: 5 Days/14 Days 3.74
          • (3) Deadline Extensions
            • (a) Additional Information Needed 3.75
            • (b) Additional Examination, Test, or Consultation Needed 3.76
          • (4) Expedited Review 3.77
        • c. Retrospective Review 3.78
      • 6. Deadlines for Communicating UR Decision 3.79
        • a. When Request for Authorization Is Approved 3.80
        • b. When Request for Authorization Is Not Approved in Full 3.81
      • 7. Procedure When UR Decision Is Untimely 3.82
      • 8. Required Form and Contents of UR Decision
        • a. When Request for Authorization Is Approved 3.83
        • b. When Request for Authorization Is Not Approved in Full 3.84
      • 9. Duration of UR Decisions 3.85
      • 10. Violations and Penalties 3.86
    • G. Disputes Regarding UR Decision or Provision of Medical Treatment 3.87
  • III. MEDICAL PROVIDER NETWORKS (MPNs) 3.88
    • A. MPN Approval 3.89
    • B. Access Standards for Medical Treatment 3.90
      • 1. MPN Must Propose Alternative When Standards Cannot Be Met 3.91
      • 2. Treatment Outside MPN When Standards Are Not Met 3.92
      • 3. Policy for Employees Outside Service Area 3.93
      • 4. When Emergency Medical Treatment Is Needed 3.94
      • 5. Referrals to Specialists 3.95
      • 6. Availability of Medical Access Assistants 3.96
    • C. Probation, Suspension, or Revocation of MPN
      • 1. Grounds 3.97
      • 2. Opportunity to Cure Violation; Notice of Action 3.98
      • 3. Request for Reevaluation 3.99
      • 4. Administrative Director's Decision 3.100
      • 5. Appeal of Decision 3.101
    • D. MPN Complaints and Petitions for Suspension or Revocation
      • 1. Complaint Procedures 3.102
        • a. Required Contents of Complaint 3.103
        • b. MPN Response to Complaint 3.104
        • c. When MPN Fails to Remedy Violation or Disputes Complaint 3.105
          • (1) Investigation by Administrative Director 3.106
          • (2) Procedure If Violation Is Found 3.107
      • 2. Petition for Suspension or Revocation
        • a. Grounds for Petition 3.108
        • b. Form and Contents of Petition 3.109
        • c. MPN Response to Petition 3.110
        • d. Administrative Director's Request for Information or Evidence 3.111
        • e. Administrative Director's Decision 3.112
    • E. Administrative Penalties 3.113
      • 1. Schedule of Penalties
        • a. Violations of MPN Filing Requirements 3.114
        • b. Violations of MPN Access Requirements 3.115
        • c. Failure to Respond to DWC Requests 3.116
        • d. Notice Violations 3.117
      • 2. Procedures for Imposition of Penalty
        • a. Notice of Action and Opportunity to Correct 3.118
        • b. Mitigation of Penalty 3.119
        • c. Request for Reevaluation 3.120
        • d. Appeal of Notice of Action 3.121
    • F. Notice Requirements
      • 1. When Industrial Injury Occurs 3.122
      • 2. When MPN Coverage Ends 3.123
      • 3. Failure to Provide Required Notices 3.124
    • G. Medical Treatment Within MPN 3.125
      • 1. Employer Arranges Initial Evaluation 3.126
      • 2. Employee's Right to Change Physician 3.127
      • 3. When Employee Has Predesignated Personal Physician 3.128
      • 4. Treatment by Non-MPN Specialist 3.129
  • IV. HEALTH CARE ORGANIZATIONS 3.130
  • V. SELF-PROCURED MEDICAL TREATMENT 3.131
    • A. Reimbursability for Self-Procured Treatment 3.132
    • B. Notice to Employer 3.133
    • C. When Failure to Give Notice Is Excusable 3.134
    • D. Reasonable Value of Services 3.135
      • 1. Effect of Fee Schedule 3.136
      • 2. When Services Not Covered by Fee Schedule 3.137
      • 3. Lien Claims 3.138
      • 4. Finance Charges 3.139
  • VI. REFUSAL TO SUBMIT TO TREATMENT OR SURGERY 3.140
  • VII. PAYMENT OF MEDICAL TREATMENT EXPENSES
    • A. Jurisdiction 3.141
    • B. Billing and Payment/Explanation of Review 3.142
    • C. Contesting Billings 3.143
    • D. Second Bill Review 3.144
    • E. Independent Bill Review (IBR) 3.145
      • 1. When IBR Is Appropriate 3.146
      • 2. Consolidation of IBR Requests 3.147
      • 3. Deadline to Request IBR 3.148
      • 4. How to Make IBR Request 3.149
      • 5. Preliminary Review and Assignment to IBR Organization 3.150
      • 6. Withdrawal of IBR Request 3.151
      • 7. Review and Determination 3.152
      • 8. Appeal 3.153
      • 9. Petition to Enforce IBR Decision 3.154
    • F. Official Medical Fee Schedule 3.155
    • G. Physicians Barred From Collecting Fees From Injured Workers 3.156
    • H. Effect of Accepting Medi-Cal Payments 3.157
  • VIII. APPORTIONMENT OF LIABILITY FOR MEDICAL TREATMENT
    • A. Combined Industrial and Nonindustrial Causes 3.158
    • B. Out-of-State Injury 3.159
    • C. Apportionment Among Carriers 3.160

4

Temporary Disability

Andrew K. Shaffer

Brett A. Borah

  • I. INTRODUCTION; DEFINITIONS 4.1
    • A. Temporary Disability May Be Total or Partial 4.2
    • B. Availability of Alternative Work and "Odd Lot" Doctrine 4.3
    • C. No Apportionment of Temporary Disability 4.4
    • D. Subsequent Nonindustrial Injury 4.5
  • II. PROCEDURE
    • A. Entitlement to Temporary Disability Indemnity 4.6
    • B. When Liability for Temporary Disability Payments Begins
      • 1. General Rule: 3-Day Waiting Period 4.7
      • 2. Exceptions to 3-Day Waiting Period 4.8
    • C. When Liability for Disability Payments Ends
      • 1. Statutory Time Limits 4.9
        • a. Effect of Payments Under Lab C §4850 4.10
        • b. Longer Period for Certain Serious Injuries or Conditions 4.11
      • 2. Employee Returns to Work, Is Cleared to Return to Work, or Condition Becomes Permanent and Stationary 4.12
      • 3. Employee Dies or Retires 4.13
    • D. Timing of Temporary Disability Payments
      • 1. First Payment Within 14 Days 4.14
      • 2. Subsequent Payments; Penalty for Late Payment 4.15
      • 3. If Employer Denies Liability 4.16
        • a. Unrepresented Employee 4.17
        • b. Represented Employee 4.18
      • 4. If Liability Determination Is Delayed 4.19
        • a. Unrepresented Employees 4.20
        • b. Represented Employee 4.21
    • E. Manner of Payment 4.22
    • F. When WCAB Loses Jurisdiction 4.23
  • III. CALCULATING AVERAGE WEEKLY EARNINGS (AWE)
    • A. Importance of AWE 4.24
    • B. Minimum and Maximum AWE 4.25
    • C. What Constitutes Earnings
      • 1. Allowable Items 4.26
        • a. Board, Lodging, and Fuel as Remuneration 4.27
        • b. "Other Advantages" 4.28
      • 2. Excluded Items
        • a. Special Expenses 4.29
        • b. Other Exclusions 4.30
    • D. Four Methods of Calculating AWE 4.31
      • 1. Method Used Must Reflect Employee's Earning Capacity 4.32
      • 2. Full-Time Work (Lab C §4453(c)(1)) 4.33
        • a. Earnings at Time of Injury 4.34
        • b. Inclusion of Overtime 4.35
        • c. New or Seasonal Employment 4.36
      • 3. Two or More Employers (Lab C §4453(c)(2)) 4.37
      • 4. Earnings at Irregular Rate (Lab C §4453(c)(3)) 4.38
      • 5. When Other Methods Do Not Produce Fair and Reasonable Result (Lab C §4453(c)(4)) 4.39
        • a. Basic Factors 4.40
        • b. Part-Time Work 4.41
        • c. Intermittent and Seasonal Work 4.42
        • d. Postinjury Earnings 4.43
    • E. Earnings for Special Classes
      • 1. Retired Public Safety Employees 4.44
      • 2. Other Special Classes 4.45
  • IV. CALCULATING TEMPORARY DISABILITY PAYMENTS
    • A. Rate on Date of Injury Controls 4.46
    • B. Exception: TTD Payments Made More Than 2 Years From Date of Injury 4.47
    • C. TTD Payments = 2/3 of Injured Worker's AWE 4.48
    • D. TPD Payments = 2/3 of Loss in Injured Worker's AWE 4.49
      • 1. Maximum Partial Disability Payment 4.50
      • 2. Obtaining New Employment During Temporary Disability 4.51
    • E. When Temporary Disability Is Both Partial and Total 4.52
  • V. SPECIAL PAYMENTS
    • A. Voluntary Continuation of Regular Wages or Salary 4.53
    • B. State Disability Indemnity 4.54
    • C. Lab C §4850 Benefits for Public Safety Officers 4.55
      • 1. Determining Eligibility for Lab C §4850 Benefits 4.56
      • 2. California Highway Patrol Officers 4.57
      • 3. Leave of Absence and Temporary Disability Benefits After Retirement 4.58
    • D. Paid Leave for School Employees 4.59
    • E. Benefits for California State University Personnel 4.60
    • F. Industrial Disability Leave for State Officers and Employees 4.61
  • VI. INDEMNITY RATE ADJUSTMENTS
    • A. Adjustment for Subsequent Increase in Earnings 4.62
    • B. Amendments to Labor Code §4453 4.63
    • C. Procedure 4.64
  • VII. TERMINATION OF TEMPORARY DISABILITY BENEFITS
    • A. Termination Procedure
      • 1. Petition to Terminate Liability for Temporary Disability Indemnity 4.65
      • 2. Content of Petition 4.66
      • 3. Objection to Petition 4.67
    • B. Notice of Termination 4.68
      • 1. Unrepresented Employee 4.69
      • 2. Represented Employee 4.70
    • C. Resumption of Temporary Disability Indemnity Payments 4.71

5

Permanent Disability

Charles Lawrence Swezey

  • I. OVERVIEW OF PERMANENT DISABILITY INDEMNITY
    • A. Definition of Permanent Disability 5.1
      • 1. Disability Considered Permanent and Stationary
        • a. No Major Changes Expected 5.2
        • b. When Disease Is Progressive 5.3
        • c. How Permanency Is Established 5.4
      • 2. Permanent Disability May Be Total or Partial 5.5
      • 3. Effect of Earnings on Permanent Disability Payments 5.6
    • B. Calculating Permanent Disability Payments
      • 1. Permanent Partial Disability
        • a. Payment 5.7
        • b. Compensation Rate; Statutory Minimums and Maximums 5.7A
        • c. Duration of Permanent Partial Disability Payments
          • (1) Injuries Occurring On or After January 1, 1992, and Before January 1, 2004 5.7B
          • (2) Injuries Occurring On or After January 1, 2004, and Before January 1, 2005 5.7C
          • (3) Injuries Occurring On or After January 1, 2005, and Before January 1, 2013 5.7D
          • (4) Injuries Occurring On or After January 1, 2013 5.7E
          • (5) Calculating Number of Weeks of Payments That Are Due 5.7F
        • d. Reductions and Increases in Payments 5.7G
        • e. Life Pension for Serious Permanent Partial Disabilities
          • (1) When Pension Begins; Rate of Compensation 5.7H
          • (2) When Life Pension Compensation Rate May Be Increased (COLAs) 5.7I
      • 2. Permanent Total Disability
        • a. Duration and Rate of Compensation 5.8
        • b. When Rate of Compensation May Be Modified
          • (1) Cost of Living Adjustments (COLAs) 5.8A
          • (2) No Increase Under Lab C §4661.5 5.8B
      • 3. Tables of Permanent Disability Benefits 5.9
        • a. Injuries Between June 30, 1996, and January 1, 2003 5.9A
        • b. Injuries Occurring On or After January 1, 2003, and Before January 1, 2004 5.9B
        • c. Injuries Occurring On or After January 1, 2004, and Before January 1, 2005 5.9C
        • d. Injuries Occurring On or After January 1, 2005, and Before January 1, 2006 5.9D
        • e. Injuries Occurring On or After January 1, 2006, and Before January 1, 2013 5.9E
        • f. Injuries Occurring On or After January 1, 2013, and Before January 1, 2014 5.9F
        • g. Injuries Occurring On or After January 1, 2014 5.9G
      • 4. Combining Successive Injuries
        • a. When Injuries Separate 5.10
        • b. Injuries to Same Body Part 5.11
        • c. Rules for Combining 5.12
      • 5. Termination of Payments by Death 5.13
    • C. Apportionment of Permanent Disability
      • 1. Definition and Nature of Concept 5.14
      • 2. History of Apportionment Law 5.14A
      • 3. Apportionment Standards
        • a. SB 899 Applies to All Pending Cases 5.14B
        • b. Apportionment Analysis Involves Causation of Disability, Not Injury 5.14C
        • c. Allocation of Burdens 5.14D
        • d. Physician and WCAB Must Determine Percentages of Disability Caused by Industrial Injury and by Other Factors 5.14E
        • e. Sufficiency of Physician's Reports 5.14F
      • 4. Benefits for Which No Apportionment Is Permitted 5.14G
      • 5. Preexisting Permanent Disability 5.15
      • 6. Preexisting Disease or Condition 5.16
      • 7. Problems of Proof 5.17
        • a. Nature of Preexisting Injury 5.18
        • b. Worker's Own Testimony 5.19
        • c. Medical Evidence 5.20
        • d. Presumption 5.20A
      • 8. Overlapping Disabilities 5.21
      • 9. Effect of Later Nonindustrial Injuries 5.22
      • 10. Cumulative Injury Cases 5.23
    • D. Payment for Subsequent Injuries
      • 1. Subsequent Injuries Benefits Trust Fund (SIBTF) 5.24
      • 2. Eligibility Requirements 5.25
        • a. Prior Disability Must Have Been Ratable 5.25A
        • b. When Prior Disability Is Total 5.25B
        • c. Combined Disabilities Must Be Greater Than Subsequent Disability Alone 5.25C
        • d. Combined Effect of Disabilities Must Be 70 Percent or More 5.25D
        • e. Subsequent Injury Must Meet 5 or 35 Percent Threshold 5.25E
      • 3. Compensation Payments 5.26
      • 4. Reduction for Other Benefits 5.27
      • 5. Procedures
        • a. File Written Application With WCAB 5.28
        • b. Deadline to File Application 5.28A
        • c. Joining the SIBTF
          • (1) When Existence of Prior Disability Becomes Apparent 5.29
          • (2) When the SIBTF Is Not Joined 5.30
        • d. Hearing 5.31
      • 6. Compromise 5.32
  • II. OVERVIEW OF PERMANENT DISABILITY RATING PROCEDURES
    • A. Elements of Rating 5.33
    • B. Disability Evaluation Schedules
      • 1. Nature and Function of Schedules in General 5.34
      • 2. California's Schedule
        • a. Adoption and Amendment by Administrative Director 5.35
        • b. Historical Development 5.35A
      • 3. Adjustments for Occupation and Age 5.36
      • 4. Amending the Schedule 5.37
      • 5. Schedule as Prima Facie Evidence 5.38
  • III. RATING PERMANENT DISABILITY USING THE 1997 SCHEDULE
    • A. Identifying Factors of Disability
      • 1. Ratable Factors 5.39
      • 2. Objective Factors 5.40
      • 3. Subjective Factors; Permanent Rating Schedule Adopted Before January 1, 2005 5.41
      • 4. Work Limitations 5.42
      • 5. Cosmetic Defects 5.43
      • 6. Psychiatric Factors 5.44
    • B. Applying the 1997 Schedule to Disability Factors
      • 1. Scheduled Ratings 5.45
        • a. Formula for Determining Percentages 5.46
        • b. Examples of Formulas 5.47
    • C. Multiple Disabilities and Avoiding Pyramiding 5.47A
  • IV. RATING PERMANENT DISABILITY USING THE 2005 SCHEDULE
    • A. Determining Impairment Rating
      • 1. AMA Guides 5.48
      • 2. Other Disability Factors 5.48A
      • 3. Psychiatric Factors 5.48B
    • B. Determining Diminished Earning Capacity
      • 1. Theory 5.48C
      • 2. Adjustment for Diminished Earning Capacity 5.48D
    • C. Applying 2005 Schedule to Impairment
      • 1. Formula for Determining Percentage of Permanent Disability 5.48E
      • 2. Example of Formula 5.48F
      • 3. Step-by-Step Computation of Rating 5.48G
    • D. Unlisted Impairments 5.49
    • E. Multiple Impairments 5.50
      • 1. Avoiding Pyramiding Under the 2005 Schedule 5.50A
      • 2. Avoiding Pyramiding Under the Pre-2005 Schedule [Deleted] 5.50B
    • F. Rebutting the 2005 Schedule 5.50C
      • 1. Rebutting the DFEC Component 5.50D
      • 2. Rebutting the Impairment Component 5.50E
  • V. RATING PERMANENT DISABILITY USING THE 2013 SCHEDULE
    • A. Administrative Director to Formulate New Rating Schedule 5.50F
    • B. Elimination of DFEC Component 5.50G
    • C. Compensable Consequence Injuries 5.50H
  • VI. SPECIAL RATING PROBLEMS
    • A. Unlisted Occupations 5.50I
    • B. Dual Occupations 5.51
      • 1. Multiple Disabilities [Deleted] 5.52
    • C. Duplication of Factors 5.53
    • D. Unitary Approach to Rating 5.54
    • E. Mechanics of Apportioned Ratings 5.55
      • 1. Mechanics of Rating Overlap 5.56
      • 2. Subsequent Injuries Benefits Trust Fund Ratings 5.57
  • VII. PERMANENT DISABILITY RATING PROCEDURES
    • A. Disability Evaluation Unit Raters 5.58
    • B. Summary Rating Determinations 5.59
    • C. Compromise and Release Evaluations 5.60
    • D. Consultative Rating Determinations 5.61
    • E. Pretrial Evaluations 5.62
    • F. Formal Rating Determinations 5.63
    • G. Informal Ratings 5.64
    • H. Other Services 5.65

6

Supplemental Job Displacement Benefit

Sally M. Harms

Deborah Lieberman

  • I. BENEFIT FOR RETRAINING AND SKILLS ENHANCEMENT 6.1
  • II. REPEAL OF VOCATIONAL REHABILITATION SERVICES 6.2
  • III. SJDB FOR INJURIES OCCURRING ON OR AFTER 1/1/2004 AND BEFORE 1/1/2013
    • A. Requirements for Receipt of Benefit 6.3
    • B. When Employer Is Not Liable for SJDB 6.4
      • 1. Definitions of "Modified" and "Alternative" Work 6.5
      • 2. Waiver of Objection to Work's Location 6.6
      • 3. Seasonal Employees 6.7
    • C. Notice of Right to SJDB 6.8
    • D. Amount of Voucher 6.9
    • E. Permissible Uses, Approved Schools, and VRTWCs 6.10
    • F. Procedure for Delivery and Use of Voucher 6.11
    • G. Deadline to Use Voucher 6.12
  • IV. SJDB FOR INJURIES OCCURRING ON OR AFTER 1/1/2013
    • A. Requirements for Receipt of Benefit 6.13
      • 1. When No Time Has Been Lost or Returned to Same Job 6.14
      • 2. Equivalency of Wages and Compensation 6.15
      • 3. Waiver of Objection to Work's Location 6.16
      • 4. Offer of Seasonal Work 6.17
    • B. Notice of Right to SJDB 6.18
    • C. Deadline to Offer SJDB 6.19
    • D. Amount of Voucher; Permissible Uses 6.20
    • E. Procedure for Delivery and Use of Voucher 6.21
    • F. Deadline to Use Voucher 6.22
    • G. Dispute Resolution 6.23
  • V. ATTORNEY FEES MAY BE AWARDED BASED ON SJDB 6.24
  • VI. RETURN-TO-WORK PROGRAM 6.25
    • A. Eligibility to Receive Supplemental Payment 6.26
    • B. Notice of Eligibility 6.27
    • C. Amount 6.28
    • D. Procedures for Applying for Supplemental Payment
      • 1. Deadline for Application 6.29
      • 2. Application Must Be Submitted Electronically; Contents 6.30
      • 3. Decision on Application 6.31
      • 4. Appeal to WCAB 6.32

7

Death Benefits, Dependency, and Burial Expenses

Dennis J. Hannigan

  • I. INTRODUCTION
    • A. General Concepts 7.1
    • B. Death Resulting from Suicide 7.1A
    • C. Time Limitations 7.1B
  • II. DETERMINING DEPENDENCY
    • A. Dependency Determined at Time of Injury 7.2
    • B. Individuals Who Can Qualify As Dependents 7.3
      • 1. Good Faith Member of Household 7.4
      • 2. Spouse 7.4A
    • C. Dependents May Be Total or Partial 7.4B
      • 1. Who Are Total Dependents?
        • a. Conclusive Presumption of Total Dependency 7.5
          • (1) Child 7.6
          • (2) Spouse 7.7
        • b. Factual Total Dependency Determination 7.8
      • 2. Who Are Partial Dependents? 7.9
        • a. Without Decedent, Can Claimant Maintain Living Standard? 7.10
        • b. What Amount Did Decedent Devote Annually to Applicant's Support? 7.11
  • III. IF NO DEPENDENTS
    • A. Payment to Department of Industrial Relations 7.12
    • B. Payment to Estate No Longer Required 7.12A
    • C. Employer Notice Requirements 7.13
    • D. Payment Procedures and Reimbursement 7.14
    • E. Disputes Regarding Existence or Extent of Dependency 7.15
  • IV. METHOD OF PAYMENT AND AMOUNT OF DEATH BENEFIT
    • A. Benefit Paid in Same Manner and Amounts as Temporary Total Disability Benefits 7.16
    • B. Amount Depends on Date of Injury 7.17
      • 1. One Total Dependent and No Partial Dependents 7.18
      • 2. One Total Dependent and One or More Partial Dependents 7.19
      • 3. Two Total Dependents 7.20
      • 4. Three or More Total Dependents 7.21
      • 5. No Total But One or More Partial Dependents 7.22
      • 6. Special Death Benefits to Totally Dependent Children 7.23
      • 7. No Dependents 7.24
      • 8. Table of Death Benefits 7.25
    • C. Distribution of Death Benefit Among Dependents
      • 1. Dependents' Right to Death Benefits 7.26
      • 2. Workers' Compensation Appeals Board May Assign Benefits Equitably 7.27
      • 3. If a Dependent Dies 7.28
    • D. No Apportionment of Death Benefits 7.29
    • E. Increase in Death Benefit Due to Unreasonable Delay; Penalties 7.29A
  • V. SPECIAL PUBLIC EMPLOYEE DEATH BENEFITS
    • A. Assassinated Public Officials 7.30
    • B. Certain Members of Public Employees' Retirement System (PERS) 7.31
  • VI. BURIAL EXPENSES 7.32

8

Penalties

Sally M. Harms

Deborah Lieberman

  • I. OVERVIEW
    • A. Penalties and Other Remedies 8.1
    • B. Who Can Claim a WCAB Penalty 8.2
  • II. STRICT LIABILITY PENALTIES FOR LATE PAYMENT OF COMPENSATION (LAB C §4650) 8.3
    • A. Temporary Disability Penalties Under Lab C §4650 8.4
    • B. Permanent Disability Penalties Under Lab C §4650 8.5
  • III. UNREASONABLE DELAY OR REFUSAL TO PROVIDE BENEFITS (LAB C §5814)
    • A. Additional Benefits
      • 1. Increased Compensation Under Lab C §5814 8.6
      • 2. Attorney Fees Under Lab C §5814.5 8.6A
    • B. Types of Benefits Affected
      • 1. Temporary Disability 8.7
      • 2. Permanent Disability 8.8
      • 3. Vocational Rehabilitation (Injuries Occurring Before January 1, 2004) [Deleted] 8.9
      • 4. Interest 8.10
      • 5. Medical Expenses 8.11
      • 6. Payment of Penalties 8.11A
      • 7. Postsettlement Benefits 8.12
      • 8. Immediately Negotiable Written Instrument 8.12A
      • 9. Death Benefits 8.12B
    • C. Determining Reasonableness of Delay or Refusal Under Lab C §5814
      • 1. Burden of Proof and Defenses 8.13
      • 2. Did Defendant Have Genuine Doubt as to Liability? 8.14
      • 3. Did Defendant Act With Due Diligence?
        • a. Considerations in Determining Due Diligence 8.15
        • b. Examples of Due Diligence 8.16
    • D. Parties Liable Under Lab C §5814 8.17
    • E. Calculate Penalty Amount Under Lab C §5814
      • 1. Assess Against Benefit Delayed or Refused
        • a. General Rule 8.18
        • b. Jointly Liable Employers 8.19
        • c. Examples and Exceptions 8.20
        • d. Self-Assessed Penalty; Deduction for §4650 Penalty Paid on Same Benefit 8.21
      • 2. Multiple Penalties Under Lab C §5814 8.22
        • a. Example of Legally Significant Acts 8.23
        • b. Examples of Legally Insignificant Acts 8.24
  • IV. UNREASONABLE DELAY OR REFUSAL UNDER LAB C §§5814.1 AND 5814.6 8.24A
  • V. EMPLOYER'S SERIOUS AND WILLFUL MISCONDUCT UNDER LAB C §4553
    • A. Increased Compensation (Lab C §4553) 8.25
    • B. Types of Benefits Affected 8.26
    • C. Determining Serious and Willful Misconduct
      • 1. Definition 8.27
      • 2. Burden of Proof, Proximate Cause, and Procedure 8.28
      • 3. Statute of Limitations 8.29
    • D. Whose Misconduct Results in Increased Compensation Under Lab C §4553? 8.30
    • E. Common Allegations of Serious and Willful Misconduct 8.31
      • 1. Failure to Provide Safe Place to Work 8.32
        • a. Knowledge of Dangerous Condition 8.33
        • b. Knowledge of Probable Consequence 8.34
        • c. Employer's Action or Inaction 8.35
      • 2. Failure to Comply With Safety Order
        • a. Nature of Safety Order 8.36
        • b. Required Elements 8.37
          • (1) Knowledge of Safety Order and Its Applicability 8.38
          • (2) Obvious Condition Made Safety Order Applicable 8.39
    • F. Defenses
      • 1. Proximate Cause 8.40
      • 2. Good Faith Attempt to Abate Danger 8.41
      • 3. Vague and Ambiguous Safety Order; Alternative Methods of Complying 8.42
      • 4. Defective Pleading 8.43
      • 5. Other 8.44
  • VI. EMPLOYEE'S SERIOUS AND WILLFUL MISCONDUCT (LAB C §4551) 8.45
  • VII. DISCRIMINATION AGAINST INJURED WORKER (LAB C §132a) 8.46
    • A. Prohibited Acts
      • 1. Violation of Express Lab C §132a Provisions 8.47
      • 2. Penalizing Worker for Work Injury 8.48
    • B. Determining Discrimination Under Lab C §132a 8.49
      • 1. Employee's Burden of Proof 8.50
      • 2. Detrimental Conduct Justified by Business Realities 8.51
      • 3. Examples
        • a. Lab C §132a Violations Found 8.52
        • b. No Lab C §132a Violation Found 8.53
      • 4. Procedure; Statute of Limitations 8.54
    • C. Parties Liable Under Lab C §132a 8.55
    • D. Remedies 8.56
      • 1. Reinstatement 8.57
      • 2. Reimbursement for Lost Wages and Work Benefits 8.58
      • 3. Misdemeanor Charge 8.59
  • VIII. EMPLOYER'S FAILURE TO INSURE
    • A. Duty to Insure 8.60
    • B. Penalties
      • 1. Increased Compensation Award and Attorney Fees (Lab C §§4554–4555) 8.61
      • 2. Criminal Penalties (Lab C §3700.5) 8.61A
      • 3. Stop Orders (Lab C §§3710.1–3710.3) 8.61B
      • 4. Civil Penalties (Lab C §3722) 8.61C
      • 5. Exception: Residential Owners and Occupants 8.61D
    • C. Procedure 8.62
  • IX. AUDITS AND PENALTIES UNDER LAB C §§129, 129.5 8.63
  • X. ILLEGALLY EMPLOYING MINOR UNDER 16 YEARS OF AGE 8.64
  • XI. ATTORNEY AND PARTY SANCTIONS UNDER LAB C §5813 8.65
  • XII. PHYSICIAN'S FAILURE TO MEET MEDICAL-LEGAL REPORTING REQUIREMENTS 8.66
  • XIII. REMEDIES OUTSIDE WORKERS' COMPENSATION SYSTEM
    • A. Peculiar Risk of Harm; Retained Control 8.67
    • B. Intentional Torts 8.68
    • C. State Claims 8.69
    • D. Federal Claims 8.70

9

Dispute Resolution Procedures

Charles Lawrence Swezey

  • I. INTRODUCTION 9.1
  • II. DISPUTE RESOLUTION PROCEDURES
    • A. Disputes Regarding Compensability of Injury (Lab C §4060) 9.2
      • 1. When Medical Evaluation Is Needed to Determine Compensability 9.3
      • 2. Liability for Evaluations Not Obtained Under Lab C §4060 9.4
      • 3. Self-Procured Compensability Evaluations Are Inadmissible 9.5
    • B. Disputes Regarding Permanent Disability or Need for Future Medical Care (Lab C §4061)
      • 1. Represented Employees 9.6
      • 2. Unrepresented Employees 9.7
        • a. Request for Correction of Factual Errors 9.8
        • b. Summary Rating 9.9
      • 3. Rebuttal Evaluation From Privately Retained Expert Is Inadmissible 9.10
    • C. Disputes Regarding Medical Treatment
      • 1. For Injuries Occurring On or After 1/1/2013 or When UR Decision Is Communicated After 7/1/2013
        • a. Mandatory Independent Medical Review (IMR) Process 9.11
          • (1) Disputes Not Subject to IMR 9.12
          • (2) Who May Request IMR 9.13
          • (3) Deadline to Request IMR 9.14
          • (4) Fees 9.15
          • (5) Initial Eligibility Review 9.16
          • (6) Notice of Assignment to IMR Organization 9.17
          • (7) Document Production 9.18
          • (8) Standards of Review; Deadline for Decision 9.19
          • (9) Format of Decision; Implementation 9.20
          • (10) Appeal of IMR Decision 9.21
          • (11) Penalties 9.22
        • b. Spinal Surgery Disputes Now Handled Through IMR 9.23
        • c. When UR Decision Is Untimely or Otherwise Procedurally Deficient 9.24
      • 2. Labor Code §4062 Governs All Other Medical Disputes 9.25
    • D. Carve-Outs 9.26
  • III. OBTAINING AME/QME EVALUATIONS
    • A. When Used 9.27
    • B. Definitions 9.28
    • C. Selecting an AME 9.29
    • D. Selecting a QME
      • 1. Represented Employee Injured On or After January 1, 2005 (Lab C §4062.2) 9.30
        • a. When QME Panel May Be Requested 9.31
        • b. Procedure for Requesting QME Panel 9.32
        • c. Panel Assigned Automatically; Time for Service of Assignment 9.33
        • d. Resolution of QME Panel Selection Disputes 9.34
        • e. Deadline to Strike Names 9.35
      • 2. Represented Employee Injured Before January 1, 2005 9.36
      • 3. Unrepresented Employee (Lab C §4062.1)
        • a. Procedure for Requesting QME Panel
          • (1) Mandatory Use of QME Form 105 9.37
          • (2) Additional Documents 9.38
          • (3) Incomplete Form 9.39
        • b. Deadlines for Assignment of Panel and Selection of Evaluator 9.40
        • c. Referral When Employee Selects Acupuncturist as QME 9.41
      • 4. QME Replacement Requests 9.42
    • E. Information Provided to QME or AME
      • 1. Required Information 9.43
      • 2. Information That Must Not Be Provided 9.44
      • 3. Service on Opposing Party 9.45
      • 4. Objecting to Proposed Information 9.46
    • F. Communications with QME or AME 9.47
    • G. Making the Appointment; Location of Examination 9.48
    • H. Appointment Notification and Cancellation
      • 1. QME Must Send Appointment Notification Form 9.49
      • 2. Time Limits for Cancellations and Rescheduled Appointments 9.50
    • I. Before the Appointment 9.51
    • J. At the Appointment
      • 1. Required Disclosures and Opportunity to Ask Questions 9.52
      • 2. Minimum Examination Times 9.53
      • 3. Physician Must Examine Worker 9.54
    • K. QME/AME Reporting Requirements
      • 1. Time Limits for Preparing and Submitting Report 9.55
      • 2. Required Contents and Form 9.56
      • 3. Consultation With Treating Physician 9.57
      • 4. When There Are Issues Outside Evaluator's Area of Expertise 9.58
      • 5. When Evaluator Determines That Employee Is Permanently Disabled 9.59
      • 6. Service of Report
        • a. General Rules 9.60
        • b. Service of Report Involving Claimed or Disputed Injury to Psyche 9.61
    • L. Correction of Factual Errors in Unrepresented Cases 9.62
    • M. Supplemental Reports in Unrepresented Cases
      • 1. When Report Finds That Injury Has Not Become Permanent and Stationary 9.63
      • 2. When Report Finds Permanent Disability 9.64
    • N. Use of Same Evaluator When New Medical Issue Arises 9.65
    • O. Panel QME in Second Medical Specialty 9.66
    • P. Cross-Examination of Evaluator by Deposition 9.67
    • Q. Effect of Evaluation 9.68
  • IV. DISPUTE RESOLUTION IN MEDICAL PROVIDER NETWORKS
    • A. Requesting Second and Third Opinions 9.69
      • 1. Procedures for Obtaining Second Opinion 9.70
      • 2. Procedure for Obtaining Third Opinion 9.71
      • 3. If Second or Third Opinion Physician Determines That Injury Is Outside Scope of Practice 9.72
      • 4. Contents of Second and Third Opinion 9.73
      • 5. If Employee Accepts Second or Third Opinion 9.74
    • B. Requesting MPN Independent Medical Review 9.75
  • V. MEDICAL-LEGAL EXPENSES 9.76
    • A. Costs Must Be Reasonable and Necessary 9.77
    • B. Showing of Employment Prerequisite 9.78
    • C. Expenses Must Be for Contested Claim 9.79
    • D. Reports Must Meet Legal Requirements 9.80
      • 1. Complete History 9.81
      • 2. Review of Medical Records 9.82
      • 3. Appropriate Conclusions 9.83
    • E. Reports From Multiple Specialists 9.84
    • F. Interpreter Fees 9.85
    • G. Copying and Related Services 9.86
      • 1. Allowable Services (When Fee Schedule Applies) 9.87
      • 2. Fees for Copying and Related Services 9.88
    • H. Nonmedical Expert Witnesses 9.89
    • I. Recovery of Medical-Legal Expenses 9.90
      • 1. 60 Days to Pay or Contest the Bill 9.91
      • 2. Second Review; Independent Bill Review 9.92
      • 3. When Bill Is Denied for Reasons Other Than Amount Billed 9.93
      • 4. Waiver of Medical-Legal Expense Issue 9.94
      • 5. Penalty on Unpaid Portion of Bill 9.95
      • 6. Bad Faith Actions or Tactics 9.96
    • J. WCAB Hearing for Reimbursement 9.97
    • K. Expenses for Copying Medical Records 9.98
    • L. Reimbursement for Medical Testimony 9.99

10

Representing Injured Workers

Frank D. Russo

  • I. OVERVIEW
    • A. Challenges of Workers' Compensation Practice 10.1
    • B. Is Worker's Injury Compensable? 10.2
    • C. What Benefits Should Worker Pursue? 10.3
    • D. Duty to Advise 10.4
    • E. Resources 10.5
  • II. INTAKE
    • A. Interacting With Potential Clients 10.6
      • 1. Form: Potential New Client Questionnaire 10.7
      • 2. Form: Letter Confirming Appointment 10.8
      • 3. Form: Nonengagement Letter 10.9
    • B. Initial Office Interview
      • 1. Objectives 10.10
      • 2. Documents Client Should Bring 10.11
      • 3. Scope of Interview 10.12
    • C. Necessary Forms and Releases 10.13
      • 1. Fee Disclosure
        • a. Preparation of Fee Disclosure Statement 10.14
        • b. Form: Fee Disclosure Statement (DWC Form 3) 10.15
        • c. Supplementary Disclosure Statement 10.16
        • d. Form: Supplementary Fee Disclosure Statement 10.17
      • 2. Declaration of Nonviolation of Lab C §139.3 (Declaration Under Lab C §4906(g)) 10.18
      • 3. Venue Authorization
        • a. When Venue Authorization Is Required 10.19
        • b. Form: Venue Authorization 10.20
      • 4. Form: Authorization for Release of Medical Information 10.21
      • 5. Form: Authorization for Release of Psychiatric, Drug, and Alcohol Treatment Records 10.22
      • 6. Form: Authorization for Release of Employment and School Records 10.23
      • 7. Form: Letter to Workers' Compensation Insurance Rating Bureau Requesting Compensation Coverage Information [Deleted] 10.24
    • D. Checklist: Information Necessary to Pursue State Workers' Compensation Claim 10.25
      • 1. Checklist: Injured Employee and Dependents 10.26
      • 2. Checklist: Employment Status 10.27
      • 3. Checklist: Earnings 10.28
      • 4. Checklist: Employer's Insurance 10.29
      • 5. Checklist: Injury 10.30
        • a. Checklist: Injuries Resulting in Death 10.31
        • b. Checklist: Prior Injuries or Disabilities 10.32
      • 6. Checklist: Medical Treatment and Expenses 10.33
      • 7. Checklist: Compensation to Date 10.34
      • 8. Checklist: Notice of Supplemental Job Displacement Benefit (Voucher) (Injuries Occurring On or After 1/1/2004 and Before 1/1/2013) 10.35
      • 9. Checklist: Notice of Supplemental Job Displacement Benefit (Voucher) (Injuries Occurring On or After January 1, 2013) 10.35A
      • 10. Checklist: Claim Form; Procedural Information 10.36
  • III. REPRESENTING THE CLIENT 10.37
    • A. Form: Letter of Representation to New Client 10.38
    • B. Filing Application With Workers' Compensation Appeals Board; Venue 10.39
    • C. Serving Claim Form on Employer; Notice of Representation 10.40
    • D. Form: Notice of Representation to Employer 10.41
    • E. Notice of Representation to Insurer or Adjusting Agency
      • 1. Informing Insurer or Adjusting Agency of Representation 10.42
      • 2. Form: Letter to Insurer or Adjusting Agency 10.43
    • F. Serving Lien Claimants and Others 10.44
    • G. Send Other Letters at Outset or When Necessary 10.45
      • 1. Form: Letter Requesting Vocational Rehabilitation [Deleted] 10.46
      • 2. Form: Letter Designating Primary Treating Physician 10.47
      • 3. Form: Letter Regarding Medical Bills Received by Applicant 10.48
    • H. Documenting the Client's File 10.49
    • I. Discovery
      • 1. Expenses 10.50
      • 2. Sources of Discovery 10.51
      • 3. Limits on Discovery 10.51A
      • 4. Deposition of Injured Worker
        • a. Generally 10.52
        • b. Preparing Worker 10.53
        • c. Attorney Fees 10.54
        • d. After Deposition Is Scheduled
          • (1) Send Letter to Worker 10.55
          • (2) Form: Letter to Worker Regarding Deposition 10.56
        • e. Form: Letter Requesting Payment for Fees and Costs Associated With Injured Worker's Deposition 10.57
        • f. Form: Petition for Attorney Fees and Expenses for Injured Worker's Deposition 10.58
        • g. Form: Letter Requesting Worker to Review Deposition Transcript 10.59
    • J. Medical Evaluations
      • 1. Generally 10.60
      • 2. Form: Letter to Worker Regarding Medical Evaluation 10.61
    • K. Delays in Obtaining Medical and Disability Benefits
      • 1. Generally 10.62
      • 2. Form: Letter to Doctor to File Lien 10.63
    • L. Hearing; Mandatory Settlement Conference
      • 1. Form: Letter Notifying Worker of Hearing Request 10.64
      • 2. Form: Letter Notifying Worker of Settlement Conference Date 10.65
    • M. Settlement 10.66
      • 1. Effect on Other Benefits 10.67
      • 2. Stipulations With Request for Award or Compromise and Release 10.68
    • N. Closing the File
      • 1. Generally 10.69
      • 2. Form: Letter Notifying Worker of Closed Case File 10.70

11

Representing Defendants

Glen J. Grossman

  • I. BASIC ETHICAL CONSIDERATIONS 11.1
    • A. Conflicts of Interest and Duty of Loyalty
      • 1. California Rules of Professional Conduct; Bus & P C §6068(e) 11.2
      • 2. State Bar Formal Opinion 1995–139 11.3
      • 3. Other State Bar Formal Opinions Impacting the Defense Attorney 11.3A
      • 4. Applicability to Workers' Compensation 11.4
    • B. Protecting Employer's Interests (Tricor) 11.5
      • 1. Understanding Tricor's Importance [Deleted] 11.6
      • 2. Determining Whether Employer Has a Tricor Interest in the Claim 11.7
        • a. Experience Rating 11.8
        • b. Experience Modification 11.9
          • (1) Experience Period 11.10
          • (2) Statistical Reporting and Claim Valuation 11.11
        • c. Example of Tricor-Recognized Interest 11.12
  • II. GATHERING INFORMATION
    • A. Getting the Big Picture 11.13
      • 1. First 90 Days 11.14
      • 2. Employer's Report of Occupational Injury or Illness (Form 5020) 11.15
        • a. When Employer Must File 11.16
        • b. Using Form 5020 11.17
      • 3. Doctor's First Report of Occupational Injury or Illness (Form 5021) 11.18
        • a. Admissibility 11.19
        • b. Pesticide Poisoning 11.20
        • c. Using Form 5021 11.21
      • 4. Form: Statement of Employee's Gross Earnings 11.22
      • 5. Benefit Notices 11.23
        • a. Temporary Disability Notices 11.24
        • b. Permanent Disability Notices 11.25
          • (1) Condition Not Permanent and Stationary but Injury May Cause Permanent Disability 11.25A
          • (2) Injury Has Caused Permanent Disability 11.26
            • (a) Additional Requirements for Notices to Unrepresented Employees 11.26A
            • (b) Additional Requirements for Notice to Represented Employees 11.27
        • c. Offer of Supplemental Job Displacement Benefit 11.28
        • d. Return to Work Notices 11.28A
      • 6. Form: Compensation Litigation Transmittal Note 11.29
    • B. Contacting the Employer 11.30
    • C. Notice of Representation 11.31
    • D. Obtaining Information From Employment Development Department 11.32
      • 1. Examine Any Employment Development Department Lien or Notice 11.33
      • 2. Form: Letter to Employment Development Department 11.34
    • E. Social Security Earnings Information 11.35
      • 1. If Injured Worker Will Not Sign Release 11.36
      • 2. Form: Letter Requesting Signed Social Security Earnings Release 11.37
    • F. Applicant's Deposition
      • 1. Deposition Goals
        • a. Gather Information 11.38
        • b. Assess How Claim Will Proceed 11.39
        • c. Influence Medical Treatment [Deleted] 11.40
        • d. Understand Worker's Goal 11.41
      • 2. Form: Applicant's Deposition Worksheet 11.42
      • 3. Form: Petition to Compel Answers to Questions and Production of Documents at Deposition 11.43
    • G. Applicant's Deposition—Psychiatric Injury 11.44
      • 1. Areas to Explore 11.45
      • 2. Form: Petition for Order Compelling Production of Psychiatric Records; Order 11.46
    • H. Primary Treating Physician's Deposition 11.47
      • 1. Form: Deposition Letter to Primary Treating Physician 11.48
      • 2. Form: Petition to Compel Attendance at Medical Evaluation 11.49
  • III. ANALYZING THE INFORMATION
    • A. Denying or Shifting Liability 11.50
    • B. Specific Injury Claims 11.51
    • C. Cumulative Injury Claims 11.52
      • 1. Compromise and Release (Lab C §5005) 11.53
      • 2. Joinder; Election 11.54
      • 3. Form: Petition for Joinder 11.55
    • D. Coverage 11.56
      • 1. Form: Letter to Employer Re: Lack of Coverage 11.57
      • 2. Form: Letter to Applicant or Codefendant Re: Lack of Coverage 11.58
      • 3. Form: Petition to Dismiss for Lack of Coverage; Order 11.59
  • IV. TAKING THE OFFENSIVE
    • A. Attacking the Pleadings 11.60
      • 1. Form: Petition to Strike Application (Lab C §4906(g), Declaration Missing); Order 11.61
      • 2. Form: Petition to Dismiss—No Employment Within Last Year of Injurious Exposure 11.62
      • 3. Form: Petition to Dismiss—No Coverage Within Last Year of Injurious Exposure 11.63
      • 4. Form: Petition to Dismiss—Statute of Limitations 11.64
      • 5. Form: Petition to Dismiss—Failure to Prosecute 11.65
    • B. Lien Claims 11.66
      • 1. Employment Development Department 11.67
      • 2. Medical-Legal Expense 11.68
        • a. Penalties (Lab C §4622(a)) 11.69
        • b. Other Demands for Payment 11.70
          • (1) Lab C §4060 11.71
          • (2) Lab C §4061 11.72
          • (3) Lab C §4062 11.73
          • (4) Lab C §4062.5 11.74
          • (5) Lab C §4064 11.75
          • (6) Lab C §4620 11.76
          • (7) Lab C §4621 11.77
          • (8) Lab C §4622 11.78
          • (9) Lab C §4628 11.79
          • (10) 8 Cal Code Regs §§9794–9795 11.80
        • c. Form: Objection to Medical-Legal Expense 11.81
      • 3. Reimbursement From Medical-Legal Providers 11.82
      • 4. Medical Treatment Liens 11.83
      • 5. Penalties and Interest 11.84
      • 6. Form: Objection to Medical Treatment Expense 11.85
      • 7. Other Lien Claimants 11.86
  • V. COMPENSATION RECOVERY 11.87
    • A. Form: Petition for Credit for Third Party Recovery 11.88
    • B. Form: Petition for Restitution From Injured Worker 11.89
    • C. Form: Petition for Reimbursement From Codefendant 11.90
    • D. Petition for Contribution (Lab C §5500.5) 11.91
    • E. Form: Petition for Reimbursement of Paid Medical-Legal Expense 11.92
  • VI. COLLATERAL ISSUES
    • A. Penalty Petitions 11.93
    • B. Serious and Willful Misconduct Petitions 11.94
    • C. Form: Letter From Insurer's Attorney Advising Employer of Serious and Willful Misconduct Petition 11.95
    • D. Discrimination Petitions 11.96
    • E. Form: Letter Advising Insured Employer of Petition Alleging Discrimination 11.97
    • F. Employer's Bill of Rights (Lab C §3761 Proceedings) 11.98
  • VII. ALTERNATIVE DISPUTE RESOLUTION 11.99

12

Time Limitations

Paul Peyrat

  • I. INTRODUCTION
    • A. Need for Timely Notices, Claims, and Applications 12.1
    • B. Determining Date of Injury
      • 1. Specific Injury 12.2
      • 2. Cumulative Injury 12.3
      • 3. Compensable Disability 12.4
      • 4. Employee's Knowledge of Industrial Cause 12.5
      • 5. Occupational Disease 12.6
      • 6. Latent Injury 12.7
  • II. ASSERTING AND RESPONDING TO INDUSTRIAL INJURY CLAIMS
    • A. Employee: Give Employer Notice of Injury
      • 1. Ascertaining and Ensuring Employer's Knowledge 12.8
      • 2. Serving Written Notice; Alternatives
        • a. 30-Day Notice and Its Equivalents 12.9
        • b. Form: Notice of Injury 12.10
      • 3. Showing Employer's Knowledge of Injury 12.11
      • 4. Meeting Absent or Defective Notice Defense
        • a. Employer's Need to Show Prejudice 12.12
        • b. Effect of Notice to Employer's Insurer 12.13
      • 5. Prenotice Medical Treatment 12.14
    • B. Employer: Provide Claim Form, Notice of Eligibility, and Advice
      • 1. Claim Form and Notice of Eligibility
        • a. Use DWC-Approved Claim and Notice Form 12.15
        • b. Provide Claim and Notice Form as Soon as Possible 12.16
        • c. Form: Workers' Compensation Claim Form (DWC 1) & Notice of Potential Eligibility 12.17
      • 2. Printed Advice to Employee 12.18
        • a. Notice to Employees Poster 12.18A
        • b. Form: Notice to Employees—Injuries Caused By Work (DWC 7) 12.18B
    • C. Employee: Complete Claim Form and File With Employer
      • 1. Reasons to File Claim Form 12.19
      • 2. Filling in Blanks 12.20
      • 3. Filing Form With Employer 12.21
    • D. Employer: Respond to Filed Claim Form
      • 1. Completing and Distributing Claim Form 12.22
      • 2. Accepting the Claim 12.23
      • 3. Denying (Rejecting) the Claim
        • a. Restarting Limitations Periods 12.24
        • b. Avoiding Presumption of Compensability 12.25
    • E. Employee: File Application With Workers' Compensation Appeals Board
      • 1. If Employer Has Rejected Claim 12.26
      • 2. If Employer Has Paid Compensation 12.27
  • III. ASCERTAINING APPLICABLE LIMITATIONS
    • A. Preliminary Considerations
      • 1. Liberal Construction 12.28
      • 2. One Cause of Action 12.29
      • 3. Table of Limitations 12.30
    • B. Disability Indemnity and Medical Treatment
      • 1. 1-Year Limit 12.31
      • 2. 5-Year Limit for New and Further Disability 12.32
        • a. Meaning of "New and Further Disability" 12.33
        • b. When Workers' Compensation Appeals Board Loses Jurisdiction Over "New and Further Disability" 12.34
      • 3. Medical Treatment as "Furnishing of Benefits" 12.35
        • a. When Medical Treatment Is Furnished 12.36
        • b. When Medical Treatment Is Not Furnished 12.37
        • c. Lien Claims
          • (1) Labor Code §4903.5 12.37A
          • (2) Labor Code §4903.6 12.37B
    • C. Death; Burial Expense
      • 1. 1-Year Limit 12.38
      • 2. 240-Week Limit 12.39
    • D. Serious and Willful Misconduct
      • 1. Employee's Claim 12.40
      • 2. Employer's Claim 12.41
    • E. Unreasonable Delay or Refusal to Pay Compensation 12.41A
    • F. Employer Discrimination 12.42
    • G. Subsequent Injuries Benefits Trust Fund 12.43
    • H. Vocational Rehabilitation for Injuries Occurring Before January 1, 2004
      • 1. 1-Year Limit [Deleted] 12.44
      • 2. 5-Year Limit [Deleted] 12.45
    • I. Claims by Asbestos Workers' Account 12.46
    • J. Contribution 12.47
    • K. Reopening Orders and Awards 12.48
  • IV. SUSPENSION OF LIMITATIONS PERIODS
    • A. Minority 12.49
    • B. Incompetence
      • 1. Tolling for Incompetence 12.50
      • 2. Allegations of Incompetence, Competence Regained 12.51
    • C. Imprisonment 12.52
    • D. Soldiers' and Sailors' Civil Relief Act 12.53
    • E. Request for Administrative Assistance 12.54
    • F. Filing Civil Action 12.55
  • V. ASSERTING THE DEFENSE
    • A. Burden of Proof 12.56
    • B. Waiver
      • 1. Failure to Assert Before Submission 12.57
      • 2. Agreement 12.58
    • C. Estoppel
      • 1. Active Conduct 12.59
      • 2. Failure to Notify Employee 12.60
      • 3. Pleading and Procedure 12.61

13

Filing With the Workers' Compensation Appeals Board

Colleen S. Casey

  • I. WORKERS' COMPENSATION APPEALS BOARD FILING PROCEDURES 13.1
    • A. Required Pleadings and Papers 13.2
      • 1. Liberal Construction of Pleadings 13.3
      • 2. Filing Methods in EAMS 13.3A
      • 3. Form and Size Requirements for Filed Documents
        • a. General Requirements 13.4
        • b. Requirements for OCR Forms 13.4A
        • c. Document Cover and Separator Sheets 13.4B
        • d. Requirements for Electronically Filed Documents 13.4C
    • B. Procedural Tracks 13.5
      • 1. Post-1993 Injuries 13.6
      • 2. 1990–1993 Injuries (Window Period) 13.7
      • 3. Pre-1990 Injuries 13.8
    • C. Exhaust Other Required Remedies 13.9
  • II. PARTIES TO BOARD PROCEEDINGS 13.10
    • A. Injured Workers and Dependents of Deceased Workers 13.11
    • B. Employers and Insurance Carriers 13.12
      • 1. Insured Employers 13.13
      • 2. Self-Insured Private Employers 13.14
      • 3. Unlawfully Uninsured Employers 13.15
      • 4. Lawfully Uninsured and Self-Insured Government Agencies 13.16
    • C. Lien Claimants 13.17
    • D. Department of Industrial Relations 13.18
    • E. Asbestos Workers' Account 13.19
    • F. Joinder of Injured Employee and Others 13.20
    • G. Parties Checklist 13.21
  • III. APPLICATIONS FOR ADJUDICATION OF CLAIMS
    • A. General Rules and Effect 13.22
    • B. Separate Applications and Consolidating Claims 13.23
    • C. Preparing DWC/WCAB Form 1A 13.24
      • 1. Form: Application for Adjudication of Claim (DWC/WCAB Form 1A) 13.25
      • 2. Caption
        • a. Case Number 13.26
        • b. Employee's Social Security Number 13.27
        • c. Venue 13.27A
        • d. Names and Addresses 13.27B
          • (1) Minors and Incompetents 13.28
          • (2) Corporations 13.29
          • (3) Partnerships and Unincorporated Associations 13.30
          • (4) Fictitious Names 13.31
          • (5) Governmental Entities 13.32
        • e. Employer's Insurance Status
          • (1) Self-Insured 13.33
          • (2) Lawfully Uninsured 13.34
          • (3) Unlawfully Uninsured 13.35
          • (4) Insured 13.36
        • f. Insurance Carriers and Adjusting Agents 13.37
      • 3. Item 1: Jurisdictional Facts
        • a. Date of Birth 13.38
        • b. Employee's Occupation; Date of Injury 13.39
        • c. Place of Injury 13.40
        • d. Parts of Body Injured 13.41
      • 4. Item 2: How Injury Occurred 13.42
      • 5. Item 3: Earnings 13.43
      • 6. Item 4: Period of Disability 13.44
      • 7. Item 5: Payment of Compensation 13.45
      • 8. Item 6: Unemployment or Disability Benefits Received 13.46
      • 9. Item 7: Medical Treatment 13.47
      • 10. Item 8: Other Applications 13.48
      • 11. Item 9: Issues and Requested Relief 13.49
        • a. Temporary Disability Indemnity 13.50
        • b. Permanent Disability Indemnity 13.51
        • c. Reimbursement for Medical Expense 13.52
        • d. Medical Treatment 13.53
        • e. Compensation at Proper Rate 13.54
        • f. Supplemental Job Displacement Benefit 13.55
        • g. Other 13.56
      • 12. Date and Signature 13.57
    • D. WCAB Form 1 [Window Period] 13.58
      • 1. Form: Application for Adjudication of Claim [1990–1993 Injuries] (WCAB Form 1 [Window Period]) [Deleted] 13.59
      • 2. Caption
        • a. Same Information as in DIA WCAB Form 1 [Deleted] 13.60
        • b. Information in Addition to That on DIA WCAB Form 1 [Deleted] 13.61
      • 3. Venue Selection [Deleted] 13.62
      • 4. Bona Fide Dispute on Issues; Effort to Resolve Dispute [Deleted] 13.63
      • 5. Mandatory Arbitration [Deleted] 13.64
      • 6. Claims; Reports and Documents [Deleted] 13.65
      • 7. Declaration of Readiness [Deleted] 13.66
      • 8. Date and Signature [Deleted] 13.67
    • E. Preparing DIA WCAB Form 2 13.68
      • 1. Form: Application for Adjudication of Claim (Death Case) (DIA WCAB Form 2) 13.69
      • 2. Caption 13.70
        • a. Case Number 13.71
        • b. Applicant and Other Parties; Deceased Employee 13.72
      • 3. Claims
        • a. Items 1–6 13.73
        • b. Item 7: Burial Expenses 13.74
        • c. Item 8: Dependents 13.75
      • 4. Request for Hearing and Award; Date and Signature 13.76
    • F. WCAB Form 1A [Window Period] 13.77
      • 1. Form: Application for Adjudication of Claim (Death Case) [1990–1993 Injuries] (WCAB Form 1A [Window Period]) [Deleted] 13.78
      • 2. Refer to Information on DIA WCAB Forms 1 and 2 [Deleted] 13.79
    • G. Preparing Applications That Allege Occupational Disease and Cumulative Injury
      • 1. Definitions 13.80
      • 2. Form of Application 13.81
      • 3. Which Employers Are Liable 13.82
      • 4. Naming Employers and Carriers 13.83
      • 5. Alleging Injury and Exposure 13.84
      • 6. Form: Sample Allegations of Injury and Exposure 13.85
      • 7. Separate Injuries; Antimerger Doctrine 13.86
      • 8. Electing Defendants 13.87
    • H. Applications Naming the Uninsured Employers Benefits Trust Fund 13.88
      • 1. Joining the Uninsured Employers Benefits Trust Fund 13.89
      • 2. Serving the Uninsured Employer and the Uninsured Employers Benefits Trust Fund 13.90
      • 3. Form: Special Notice of Lawsuit (WCAB Form) 13.91
  • IV. PETITIONS
    • A. Preparing Petition for Serious and Willful Misconduct
      • 1. Basis of Serious and Willful Misconduct Petition Against Employer or Insurer 13.92
      • 2. How to Claim Increased Benefits for Employer's Serious and Willful Misconduct 13.93
      • 3. Pleading Employee's Serious and Willful Misconduct 13.94
      • 4. Form: Petition for Award for Employer's Serious and Willful Misconduct 13.95
      • 5. Form: Petition for Award for Employer's Serious and Willful Misconduct—Violation of Safety Order (Lab C §4553.1) 13.95A
        • a. Caption 13.96
        • b. First Cause of Action 13.97
        • c. Verification 13.98
        • d. Service 13.99
      • 6. Sample Allegation: Violation of Safety Order 13.100
        • a. Cite or Refer Correctly to Safety Order or Statute 13.101
        • b. State How Safety Order or Statute Was Violated 13.102
      • 7. Sample Allegation: General Misconduct 13.103
    • B. Preparing Petition for Increased Benefits Based on Discriminatory Conduct by Employer or Insurer 13.104
      • 1. Form: Petition for Award Under Lab C §132a 13.105
      • 2. Prepare and File Within 1 Year 13.106
    • C. Petition for Guardian Ad Litem and Trustee
      • 1. Need for Guardian and Trustee; Powers 13.107
      • 2. Procedure 13.108
      • 3. Bonds 13.109
      • 4. Form: Petition for Appointment of Guardian Ad Litem and Trustee (DIA WCAB Form 8) 13.110
  • V. APPLICATION ATTACHMENTS AND ACCOMPANYING PAPERS
    • A. In General 13.111
    • B. Lab C §4906(g) Declaration
      • 1. Lab C §4906(g) Requirement 13.112
      • 2. Form: Declaration Under Lab C §4906(g) 13.113
    • C. Claim Form 13.114
    • D. Declaration of Readiness to Proceed (DWC-CA Form 10250.1) 13.115
    • E. Proof of Service 13.116
    • F. Consent to Venue 13.117
    • G. Election of Defendants 13.118
    • H. Request for Benefits From Subsequent Injuries Benefits Trust Fund
      • 1. Availability of Benefits for Previous Disability 13.119
      • 2. Making Application Against the Subsequent Injuries Benefits Trust Fund 13.120
      • 3. Form: Application for Subsequent Injuries Benefits Trust Fund Benefits [Deleted] 13.121
      • 4. Form: Application for Subsequent Injuries Fund Benefits (Application for SIF Benefits) 13.122
      • 5. Filing and Serving Separate Subsequent Injuries Benefits Trust Fund Application 13.123
    • I. Arbitration Submittal Form 13.124
  • VI. FILE AND SERVE APPLICATIONS AND PETITIONS
    • A. Filing Mechanics 13.125
      • 1. All Applications, Regardless of Date of Injury 13.126
      • 2. Applications Filed for Injuries Occurring During the Window Period 13.127
    • B. Place of Filing—Venue 13.128
      • 1. Venue Options 13.129
      • 2. Incorrect Venue 13.130
      • 3. Objection to Venue (Lab C §5501.5) 13.131
      • 4. Change of Venue (Lab C §5501.6) 13.132
    • C. Serve Application
      • 1. Ordinary Service 13.133
      • 2. Service on Uninsured Employer and Uninsured Employers Benefits Trust Fund 13.134
  • VII. ANSWERS
    • A. Effect of Failure to Answer 13.135
    • B. Preparing Answer to Application 13.136
    • C. Form: Answer to Application for Adjudication of Claim (DWC/WCAB Form 10) 13.137
      • 1. Caption 13.138
      • 2. Denials 13.139
      • 3. Affirmative Defenses 13.140
      • 4. Verification 13.141
      • 5. Attachments and Accompanying Documents 13.142
    • D. Form: Answer to Application for Adjudication of Claim: Injuries Occurring on or After January 1, 1990, and Before January 1, 1994 (WCAB Form 2 [Window Period]) [Deleted] 13.143
    • E. Answer to Petitions 13.144
    • F. Requesting Dismissal of Application
      • 1. Applications Subject to Dismissal 13.145
        • a. Insufficient Detail 13.146
        • b. More Than One Injury Alleged 13.147
        • c. Dismissal or Joinder of Parties Required 13.148
        • d. Improper Venue or Jurisdiction 13.149
      • 2. Form: Answer to Petition and Request for Dismissal or Continuance 13.150
    • G. File and Serve Answer 13.151
    • H. Amending Answer 13.152
  • VIII. STIPULATIONS WITH REQUEST FOR AWARD
    • A. Uses of Stipulations With Request for Award 13.153
    • B. Procedure 13.154
  • IX. ATTORNEYS' APPEARANCE AND SUBSTITUTION
    • A. Initial Appearance 13.155
    • B. Substitution and Dismissal 13.156
      • 1. Mutual Consent 13.157
      • 2. Attorney Withdraws 13.158
      • 3. Notice of Dismissal 13.159
      • 4. Disqualification of Attorney 13.160
      • 5. Form: Substitution of Attorneys (DWC WCAB Form 36) 13.161
      • 6. Form: Notice of Dismissal of Attorney (DWC/WCAB Form 37) 13.162

14

Gathering Evidence

Barry M. Lesch

James P. Pettibone

  • I. INFORMATION GATHERING DURING FIRST 90 DAYS (LAB C §5402)
    • A. Initial Investigation by Claims Administrator 14.1
      • 1. Information Gathered During Initial Investigation 14.2
      • 2. Conducting the Investigation 14.3
    • B. Evidence From Employee 14.4
    • C. Evidence From Employer 14.5
      • 1. Form 5020 Information 14.6
      • 2. Form: Employer's Report of Occupational Injury or Illness (Form 5020) 14.7
    • D. Evidence From Medical Providers
      • 1. Primary Treating Physicians; Form 5021 14.8
      • 2. Obtaining Medical Reports 14.9
      • 3. Obtaining Additional Records by Use of a Medical Release 14.10
      • 4. Form: Authorization for Medical Information 14.11
      • 5. Limits on Medical Discovery 14.12
    • E. Additional Information
      • 1. Form: Request for Social Security Earnings Information (SSA-7050-F4) 14.13
      • 2. Miscellaneous Information 14.14
  • II. ATTORNEY ROLES AT EARLY STAGES
    • A. Defense Attorney 14.15
    • B. Employee's Attorney
      • 1. Instructing the Employee Concerning Medical Examinations 14.16
      • 2. Finding Lay Witnesses 14.17
      • 3. Establishing Serious and Willful Misconduct 14.18
        • a. Safety Orders; Safety Standards 14.19
        • b. Proving Knowledge 14.20
  • III. REBUTTABLE PRESUMPTION OF COMPENSABILITY IF CLAIM NOT DENIED WITHIN FIRST 90 DAYS 14.21
    • A. Rebutting the Presumption 14.22
    • B. Discovery Allowed on Other Issues 14.23
  • IV. OBTAINING MEDICAL EVIDENCE IN GENERAL 14.24
    • A. Medical-Legal Expenses 14.25
    • B. Types of Physicians 14.26
    • C. Selecting Examining Physicians 14.27
      • 1. Is Physician Qualified to Report? 14.28
      • 2. Arranging the Examination 14.29
      • 3. Communicating With Physicians 14.30
      • 4. Requesting Medical-Legal Report 14.31
    • D. Contents of Medical-Legal Report 14.32
      • 1. Lab C §4628 Requirements 14.33
      • 2. Form: Declaration by Signing Physician 14.34
      • 3. If Report Violates Lab C §4628 14.35
      • 4. If Report Violates 8 Cal Code Regs §10606 14.36
      • 5. On Receiving Report 14.37
  • V. OBTAINING MEDICAL EVIDENCE ON SPECIFIC MEDICAL ISSUES AFTER THE FIRST 90 DAYS
    • A. Compensability Evaluations (Lab C §4060) 14.38
      • 1. If Employee Is Not Represented by an Attorney 14.39
      • 2. If Employee Is Represented by an Attorney 14.40
    • B. Primary Treating Physician Reports 14.41
      • 1. Ongoing Reports From Primary Treating Physician 14.42
      • 2. Primary Treating Physician's Report Concerning Permanent Disability 14.43
      • 3. Presumption of Correctness of Treating Physician's Findings Repealed 14.44
        • a. Rebutting the Presumption 14.45
        • b. Defeating the Presumption 14.46
      • 4. Rebuttable Presumption of Percentage of Permanent Disability Attributed to Each Injury Covered by 2005 Permanent Disability Rating Schedule 14.46A
      • 5. Rebuttable Presumption of Correctness of Medical Treatment Utilization Schedule 14.46B
    • C. Medical-Legal Evaluations Under Lab C §§4060–4068 14.47
      • 1. Disputes Under Lab C §4062 14.48
        • a. Procedure for Objecting 14.49
        • b. Contents of Evaluation 14.50
      • 2. Disputes Under Lab C §4061 14.51
        • a. Procedure Under Lab C §4061 14.52
        • b. Contents and Service of Evaluation 14.53
      • 3. After the Comprehensive Medical Examination: Payment or Hearing 14.54
    • D. Medical Provider Networks 14.54A
    • E. Production of Medical Reports 14.55
  • VI. OBTAINING EVIDENCE IN DEATH CASES 14.56
    • A. Autopsy 14.57
    • B. Nonmedical Evidence 14.58
  • VII. DEFENDANT'S SURVEILLANCE AND FILMING OF EMPLOYEE 14.59
    • A. When Surveillance May Be Beneficial 14.60
    • B. Limits on Filming
      • 1. No Entrapment, Fraud, or Deceit 14.61
      • 2. Liability Under CC §1708.8 for Invasion of Privacy 14.62
    • C. Use of Film 14.63
      • 1. Determine Value 14.64
      • 2. Discrediting Film 14.65
      • 3. Presenting Film to Physicians 14.66
        • a. Panel Qualified Medical Evaluator 14.67
        • b. Medical Evaluators 14.68
        • c. Agreed Medical Evaluators 14.69
      • 4. Use for Impeachment of Employee 14.70
    • D. Disclosing Film During Discovery 14.71
      • 1. Until Employee's Deposition 14.72
      • 2. Until Mandatory Settlement Conference or Trial 14.73
  • VIII. DEPOSITIONS AND WITNESS STATEMENTS
    • A. Generally 14.74
    • B. Employee's Deposition 14.75
      • 1. Information From and Attendance of Employer 14.76
      • 2. Employee's Deposition Rights 14.77
      • 3. Limitation on Questions Concerning Medical History 14.78
      • 4. Checklist: Deposition Information From Employee 14.79
    • C. Depositions Taken by Employee
      • 1. Purpose of Depositions 14.80
      • 2. Obtaining Deposition of Employer or Defense Witness 14.81
    • D. Depositions of Physicians
      • 1. To Obtain Evidence, Not Only Discovery 14.82
        • a. Balance Risks and Benefits of Cross-Examination 14.83
        • b. Whether to Cross-Examine Treating Physician, Agreed Medical Examiner, or Panel Qualified Medical Examiner 14.84
      • 2. Costs of Medical Depositions 14.85
    • E. Third Party Witnesses
      • 1. Witness Statements 14.86
        • a. Written or Recorded Statements 14.87
        • b. Statements Are Discoverable 14.88
      • 2. Deposition of Witnesses 14.89
    • F. Subpoenas 14.90
    • G. Failure to Appear or Answer 14.91
  • IX. NONMEDICAL EXPERT EVIDENCE 14.91A
    • A. Continued Use of Vocational Experts 14.91B
    • B. Functional Capacity Evaluation 14.91C
  • X. OBTAINING RECORDS
    • A. Medical Records 14.92
    • B. Production of Documents by Opposing Party 14.93
    • C. By Subpoena 14.94
    • D. Enforcing Subpoena 14.95
  • XI. OTHER DISCOVERY METHODS 14.96
  • XII. DISCOVERY CUTOFF 14.97
  • XIII. LIMITATIONS ON GATHERING AND USING EVIDENCE
    • A. Injury Arising From Sexual Conduct (Injuries On or After January 1, 1994) 14.98
    • B. HIV/AIDS Cases 14.99
    • C. Privilege Statutes Apply in Workers' Compensation Proceedings 14.99A

15

Lien Claims

Pamela W. Foust

  • I. OVERVIEW
    • A. Restrictions on Disbursement of Benefits to Claimant 15.1
    • B. Nature of Lien 15.2
    • C. Statutory Classes
      • 1. Permissive Liens 15.3
      • 2. Mandatory Liens 15.4
    • D. Compensation Subject to Liens 15.5
    • E. Assignment of Liens 15.5A
    • F. WCAB's Jurisdiction to Allow Liens Is Exclusive 15.6
      • 1. Support for Deserted or Neglected Dependents 15.7
      • 2. Attorney Fees 15.8
      • 3. Medical Treatment Liens 15.8A
  • II. ALLOWABLE LIENS
    • A. Chart: Liens Allowable and Not Allowable 15.9
    • B. Attorney Fees and Disbursements 15.10
      • 1. Determining Attorney Fee Amount
        • a. Factors Board Considers 15.11
        • b. Life Pension Cases 15.12
        • c. Complexity of Case 15.13
        • d. Lack of Care and Skill 15.14
        • e. Vocational Rehabilitation Claims (Injuries Before January 1, 2004) 15.15
      • 2. Deposition Attorney Fees 15.16
      • 3. Attorney Fees Payable by Defendant 15.17
        • a. Permissive Fee Awards 15.18
        • b. Attorney Fees Payable as Sanction 15.18A
        • c. Mandatory Fee Awards 15.19
      • 4. Allocation of Fees Between Successive Attorneys 15.20
      • 5. Disbursements 15.21
    • C. Medical Treatment
      • 1. Items Subject to Lien 15.22
      • 2. Time Limit for Filing Lien Claim
        • a. Labor Code §4903.5 15.22A
        • b. Other Limitations on Filing 15.22B
        • c. Labor Code §4903.6 15.22C
      • 3. Dismissal of Applicant's Case 15.22D
      • 4. Substantive Matters
        • a. Disputes About Threshold Issues 15.22E
        • b. Medical Control 15.22F
      • 5. Limited to Cure or Relief of Industrial Injury [Deleted] 15.23
      • 6. Qualifications of Medical Providers 15.24
      • 7. Reasonable Medical Necessity 15.24A
      • 8. Timing of Treatment and Lien Filing [Deleted] 15.25
      • 9. When Lien Claimant Disputes Settlement Allocation [Deleted] 15.26
      • 10. Dismissal of Applicant's Case [Deleted] 15.27
      • 11. Reasonable Value 15.28
      • 12. Insurers' Medical Treatment Liens 15.29
    • D. Medical-Legal Expenses
      • 1. Recoverable as Lien 15.30
      • 2. When Costs Not Allowable: Examples 15.31
      • 3. Worker's Claim Must Be Contested; Timing and Notice Issues 15.32
      • 4. Defendant's Obligation to Pay or Object 15.33
      • 5. No Cost Claim for Unnecessary Reports 15.34
      • 6. Who May Write Medical-Legal Reports 15.35
      • 7. Antifraud Provisions 15.36
        • a. Duties of Physician 15.37
        • b. Contents of Medical Report 15.38
      • 8. Medical Report Must Be Capable of Proving or Disproving Essential Disputed Medical Facts 15.39
      • 9. Fee Schedule; Interpreter Rates 15.40
    • E. Employee and Dependent Living Expenses 15.41
      • 1. Included, Excluded Expenses 15.42
      • 2. Unrelated Medical Expenses 15.43
      • 3. Compensation Paid by Mistake 15.44
      • 4. Loss of Income Benefits 15.45
    • F. Burial Expense 15.46
    • G. Living Expenses of Deserted or Neglected Spouse or Minor Children 15.47
    • H. Employment Development Department Benefits 15.48
      • 1. Disability 15.49
      • 2. Unemployment Insurance 15.50
    • I. Victim of Violent Crime Indemnification 15.51
    • J. Family Temporary Disability Insurance Benefits (Paid Family Leave) 15.51A
    • K. Asbestos Workers' Benefits [Deleted] 15.52
    • L. Nonmedical Litigation Costs 15.53
      • 1. Interpreter Services 15.54
      • 2. Costs Under Lab C §5811
        • a. Post-SB 863 Costs 15.55
        • b. Pre-SB 863 Costs 15.55A
    • M. Uninsured Employers Benefits Trust Fund Payments 15.56
    • N. Tax Liens 15.57
  • III. ELECTRONIC ADJUDICATION MANAGEMENT SYSTEM (EAMS) 15.57A
  • IV. LIEN PROCEDURE
    • A. Preliminary Steps 15.58
    • B. Notices of Representation, Change of Representation, and Non-Representation 15.58A
      • 1. Required Contents of Notice; Verification 15.58B
      • 2. Time for Filing and Service 15.58C
      • 3. Additional Requirements for Non-Attorney Representatives 15.58D
      • 4. Notice of Non-Representation 15.58E
    • C. Fees
      • 1. Filing Fee for Medical Treatment Lien and Cost Claim (Filed After 1/1/2013) 15.58F
      • 2. Activation Fee for Medical Treatment Lien (Filed Before 1/1/2013) 15.58G
      • 3. Reimbursement 15.58H
    • D. Time to File
      • 1. Lab C §§4903.5 and 4903.6 15.59
      • 2. Laches 15.60
    • E. Who May File 15.61
    • F. Completing, Filing, and Serving Lien Claims
      • 1. When Lien Claim Must Be Filed Electronically 15.62
      • 2. When OCR Form Permitted 15.62A
      • 3. When Lien Claim May Be Filed on Non-OCR Form 15.63
      • 4. Requirements for Filing Lien Claims
        • a. Case Number; Party Names and Addresses 15.64
        • b. Claims 15.65
        • c. Signature 15.66
      • 5. Supporting Documents 15.67
      • 6. Filing 15.68
      • 7. Proof of Service 15.68A
      • 8. Verification to Filing of Lien Claim or Application by Lien Claimant 15.68B
      • 9. Verification to Filing of Declaration of Readiness by or on Behalf of Lien Claimant 15.68C
      • 10. Service 15.69
      • 11. Amendments 15.70
      • 12. Duty to Notify Parties of Changes in Contact Information 15.70A
      • 13. Notification of Hearing 15.70B
      • 14. Notice After Resolution or Withdrawal 15.70C
    • G. Defendants' Obligations 15.71
      • 1. Withhold Funds in Anticipation of Lien 15.72
      • 2. Notify Employment Development Department 15.73
      • 3. Disclose All Liens [Deleted] 15.74
    • H. Service of Medical Reports
      • 1. On Party or Physician Lien Claimant 15.75
      • 2. On Non-Physician Lien Claimant 15.75A
      • 3. Manner of Service 15.75B
    • I. Hearings and Dismissal of Liens
      • 1. When Case in Chief Is Resolved by Compromise and Release or Stipulated Award 15.76
      • 2. Lien Conferences 15.76A
      • 3. Lien Trials 15.76B
      • 4. Dismissal of Lien for Lack of Prosecution
        • a. When Petition for Dismissal May Be Filed 15.77
        • b. Required Documents 15.77A
        • c. Service 15.77B
        • d. Notice of Intention to Dismiss 15.77C
      • 5. Dismissal for Failure to Appear 15.77D
      • 6. Summary Lien Claim Procedure [Deleted] 15.78
      • 7. Arbitration 15.79
    • J. Lien Claimant's Rights and Obligations
      • 1. "Right to Relief" or "Party in Interest" 15.80
      • 2. Due Process 15.81
    • K. Burden of Proof 15.82
    • L. Sanctions 15.82A
    • M. Attorney Fees and Costs 15.83
      • 1. Procedure 15.84
      • 2. Request for Fee Increase 15.85
    • N. Medical-Legal Costs 15.86
    • O. Settled Claims 15.87
  • V. WORKERS' COMPENSATION APPEALS BOARD'S DISCRETION
    • A. Limits 15.88
    • B. Determining Reasonableness 15.89
    • C. Payment Priorities 15.90
    • D. Payment Method 15.91
    • E. Allowance on Workers' Compensation Appeals Board's Own Motion 15.92
    • F. Need for Opportunity to Be Heard 15.93
    • G. Settled Claims 15.94
  • VI. LIEN CLAIMANT'S LIABILITY FOR ATTORNEY FEES
    • A. Statutory Provisions 15.95
    • B. Common Fund Principle [Deleted] 15.96
    • C. Procedure 15.97

16

Settlement

Raymond E. Frost

  • I. ADVANTAGES AND TYPES OF SETTLEMENT 16.1
  • II. COMPROMISE AND RELEASE AGREEMENT 16.2
    • A. Advantages 16.3
    • B. Primary Issues to Resolve
      • 1. Permanent Disability 16.4
      • 2. Temporary Disability 16.5
      • 3. Future Medical Care 16.6
      • 4. Other Issues 16.7
    • C. Types of Compromise and Releases
      • 1. Full or Partial Release 16.8
      • 2. Claims Against Subsequent Injuries Benefits Trust Fund 16.9
      • 3. Claims for Vocational Rehabilitation (Injuries Occurring Before January 1, 2004) [Deleted] 16.10
        • a. Thomas Finding [Deleted] 16.10A
        • b. One-Time Payment [Deleted] 16.10B
        • c. Form: RU-122 [Deleted] 16.10C
      • 4. Serious and Willful Misconduct of Employer or Employee 16.11
      • 5. Third Party Settlement 16.12
    • D. Circumstances Justifying Settlement
      • 1. General Policy 16.13
      • 2. Worker's Considerations 16.14
      • 3. Defense Considerations 16.15
    • E. Negotiation
      • 1. Evaluating Case Value 16.16
      • 2. Negotiating Techniques 16.17
        • a. On Behalf of Worker 16.18
        • b. On Behalf of Defense 16.19
      • 3. Specific Types of Cases 16.20
      • 4. Lien Claims 16.21
    • F. Drafting, Service, and Filing
      • 1. Requirements; Using WCAB C&R Forms 16.22
      • 2. Separate Forms for Separate Injuries Not Required 16.23
      • 3. Form: Compromise and Release Agreement (DWC-CA Form 10214(c)) 16.24
      • 4. Completing DWC-CA Form 10214(c)
        • a. Case Number(s); Venue; Parties 16.25
        • b. Description of Injury and Claim 16.26
        • c. Scope of Release 16.27
        • d. Compensation Paid and Claimed 16.28
        • e. Amount of Compromise and Deductions 16.29
        • f. Liens to Be Disallowed or Reduced 16.30
        • g. Attorney Fees 16.31
        • h. Reason for Compromise 16.32
          • (1) Special Provisions 16.33
          • (2) Form: Addendum to Compromise and Release 16.34
        • i. Provision for Hearing 16.35
        • j. Execution 16.36
      • 5. Accompanying Papers 16.37
      • 6. Reducing Lien Claims
        • a. Statutory Authority
          • (1) Unemployment Compensation Liens 16.38
          • (2) Certain Medical and Group Disability Liens 16.39
        • b. Allocation by Formula
          • (1) Unemployment Compensation Liens (Baird Formula) 16.40
          • (2) Medical and Group Disability Liens 16.41
        • c. Procedure 16.42
        • d. Form: Sample Computation of Fair Allocation to Unemployment Compensation Disability Lien Claim (Baird Formula) 16.43
        • e. Form: Sample Computation of Lien Reduction Under Lab C §4903.1(a)(4) 16.44
      • 7. Service and Filing 16.45
      • 8. "Walk-Through" Filing 16.46
      • 9. Form: Compromise and Release Agreement—Dependency Claim (DWC-CA Form 10214(d)) 16.47
      • 10. Form: Compromise and Release Agreement—Third Party (DWC-CA Form 10214(e)) 16.48
    • G. Status of Executed Compromise and Release Before Approval 16.49
      • 1. Effect of Worker's Death 16.50
      • 2. Effect of Party's Repudiation 16.51
      • 3. Effect of Disapproval [Deleted] 16.52
    • H. Approval of Agreement
      • 1. WCAB's Responsibility 16.53
      • 2. Informal Discussion With Workers' Compensation Judge 16.54
      • 3. Employers' Objections 16.55
      • 4. Hearing 16.56
      • 5. Workers' Compensation Appeals Board's Authority 16.57
      • 6. Effect of Approval
        • a. On Parties 16.58
        • b. On Dependents 16.59
        • c. On Right to Vocational Rehabilitation Services (Injuries Occurring Before January 1, 2004) [Deleted] 16.60
    • I. Effect of Dispproval 16.60A
    • J. Procedures to Reconsider, Review, or Set Aside Approval
      • 1. Petitions for Reconsideration and Review 16.61
      • 2. Setting Aside
        • a. Petition to Reopen 16.62
        • b. Restitution Ordinarily Not Condition Precedent 16.63
        • c. Grounds for Reopening 16.64
          • (1) Fraud, Duress, or Undue Influence 16.65
          • (2) Mutual Mistake of Fact 16.66
          • (3) Mistake of Law 16.67
          • (4) Invalidity of Execution 16.68
          • (5) Incompetency or Minority at Time of Execution 16.69
  • III. STIPULATIONS WITH REQUEST FOR AWARD
    • A. Legal Effect 16.70
    • B. Strategic Considerations 16.71
    • C. Components
      • 1. Permanent Disability 16.72
      • 2. Temporary Disability 16.73
      • 3. Lien Claims 16.74
    • D. Negotiation 16.75
    • E. Deciding Whether to Execute Stipulations 16.76
    • F. Stipulations Form
      • 1. Preparation 16.77
      • 2. Form: Stipulations With Request for Award (DWC-CA Form 10214(a)) 16.78
      • 3. Filing, Service, and Attachments 16.79
      • 4. Lien Claims 16.80
      • 5. Death Case
        • a. Preparation 16.81
        • b. Form: Stipulations With Request for Award (Death Case) (DWC-CA Form 10214(b)) 16.82
        • c. Filing, Service, and Attachments 16.83
        • d. Form: Sample Letter Requesting Fee (To Accompany WCAB Form 4) 16.84
    • G. Ruling on Stipulations 16.85

17

Preparing for Trial

Yale I. Jones

Robert E. Buch

  • I. WORKERS' COMPENSATION APPEALS BOARD HEARINGS IN GENERAL
    • A. Continuing Implementation of EAMS 17.1
    • B. Need for Hearing 17.1A
    • C. Setting Case for Hearing 17.2
  • II. TYPES OF HEARINGS 17.3
    • A. Regular Hearing (Trial Calendar) 17.4
    • B. Mandatory Settlement Conference 17.5
      • 1. Conduct of Conference 17.6
        • a. Continuance 17.7
        • b. Failure to Appear 17.8
        • c. Consolidation 17.8A
      • 2. Effect of Mandatory Settlement Conference 17.9
        • a. Listing Witnesses and Disclosing Evidence 17.10
        • b. Raising Issues 17.11
      • 3. Form: Pretrial Conference Statement §5502(e)(3) (DWC-CA Form 10253.1) 17.12
    • C. Consultative Disability Evaluations at Mandatory Settlement Conference 17.13
    • D. Hearing by Pro Tempore Judge 17.14
    • E. Emergency Hearings 17.15
    • F. Expedited Hearings
      • 1. When Appropriate 17.16
      • 2. How to Request an Expedited Hearing 17.17
      • 3. Form: Declaration of Readiness to Proceed to Expedited Hearing (Trial) (DWC-CA Form 10208.3) 17.18
    • G. Rating Mandatory Settlement Conference 17.18A
    • H. Status Conference 17.18B
    • I. Priority Conference 17.18C
  • III. SETTING FOR HEARING
    • A. Declaration of Readiness to Proceed
      • 1. Need to File 17.19
      • 2. Content 17.20
      • 3. Requesting Specific Date 17.21
      • 4. Form: Declaration of Readiness to Proceed (DWC-CA Form 10250.1) 17.22
    • B. Objection to Declaration 17.23
    • C. Screening by Presiding Judge 17.24
      • 1. Ordinary and Death Benefits 17.25
      • 2. Serious and Willful Misconduct 17.26
      • 3. Subsequent Injuries Benefits Trust Fund Benefits 17.27
      • 4. Petition to Reopen Prior Decision 17.28
      • 5. Arbitration 17.29
    • D. Judge's Calendaring Discretion 17.30
    • E. Priorities in Setting 17.31
    • F. Medical and Vocational Rehabilitation Testimony Disfavored 17.32
    • G. Notice of Hearing 17.33
      • 1. Notice to Lien Claimants 17.34
      • 2. Notice to Uninsured Employers 17.35
      • 3. Waiver of Notice 17.36
    • H. Obtaining Continuance 17.37
    • I. Changing the Judge 17.38
      • 1. Petition for Automatic Reassignment of Trial or Expedited Hearing and Automatic Reassignment After Reversal
        • a. When to File 17.39
        • b. Form: Petition for Automatic Reassignment to Another Workers' Compensation Judge 17.40
      • 2. Petition for Disqualification
        • a. When to File 17.41
        • b. Form: Petition to Disqualify Assigned Workers' Compensation Judge 17.42
    • J. Removal of Case From Calendar 17.43
    • K. Dismissal of Off-Calendar Cases 17.44
  • IV. APPLICANT'S PREPARATION
    • A. Differences From Civil Practice 17.45
    • B. Raising Issues 17.46
    • C. Checklist: Refining Issues 17.47
    • D. Compelling Attendance of Witnesses
      • 1. Interviewing Witnesses; Securing Attendance 17.48
        • a. Subpoenas 17.49
        • b. Form: Subpoena (WCAB Form 30) 17.50
        • c. Form: Subpoena Duces Tecum (WCAB Form 32) 17.51
      • 2. Safety Officers and State Employees 17.52
      • 3. Failure of Witnesses to Appear 17.53
    • E. Proving Earnings and Other Sums 17.54
    • F. Preparing Medical Evidence 17.55
      • 1. Need for Narrative Medical Reports 17.56
      • 2. Need for Expert Testimony 17.57
    • G. Medical Testimony 17.58
      • 1. Direct Examination of Physician 17.59
      • 2. Cross-Examination of Physician 17.60
      • 3. Cross-Examination Tactics
        • a. General Strategy 17.61
        • b. Flaws in Medical History 17.62
        • c. Flaws in Reasoning 17.63
        • d. Ambiguous Conclusions 17.64
    • H. Petitions and Motions Before Trial 17.65
    • I. Preparing the Applicant to Testify 17.66
      • 1. Discuss Case Issues; Go Over Questions 17.67
      • 2. When Extent of Permanent Disability Is at Issue 17.68
      • 3. Activities and Surveillance Videotapes or Films to Impeach Applicant 17.69
    • J. Dealing With the Apportionment Issue 17.70
    • K. Preparing Proposed Permanent Disability Rating—"Baseball Arbitration" [Deleted] 17.71
  • V. DEFENDANT'S PREPARATION
    • A. Differences From Civil Practice 17.72
    • B. Ascertaining Issues 17.73
      • 1. Prerequisites to Formal Litigation (Injuries Occurring After 1990) 17.74
      • 2. Application 17.75
      • 3. Employer or Insurer 17.76
        • a. Compensation Litigation Transmittal Note 17.77
        • b. Employer's Report of Occupational Injury or Illness 17.78
        • c. Form: Additions to Employer's Report of Occupational Injury or Illness 17.79
        • d. Doctor's First Report of Occupational Injury or Illness 17.80
      • 4. Statement of Employee's Gross Earnings 17.81
    • C. Identifying Affirmative Defenses 17.82
      • 1. Injured Worker's Status as Independent Contractor 17.83
      • 2. Intoxication 17.84
        • a. Proof of Intoxication 17.85
        • b. Proximate Cause of Injury 17.86
        • c. Estoppel From Asserting Defense 17.87
      • 3. Employee's Serious and Willful Misconduct 17.88
      • 4. Aggravation of Disability by Employee's Unreasonable Conduct 17.89
      • 5. Prejudice From Lack of Notice 17.90
      • 6. Apportionment of Permanent Disability 17.91
      • 7. Reasonableness of Delay or Refusal to Pay Benefits Under Lab C §5814 17.91A
      • 8. Statutes of Limitations 17.92
      • 9. Fraud 17.93
    • D. Employer's Insurance Coverage 17.94
    • E. Marshaling Evidence
      • 1. Time Available 17.95
      • 2. Reviewing Discovery; Medical Testimony 17.96
      • 3. Witness Preparation 17.97
      • 4. Earnings Records 17.98
      • 5. Form: Letter to Applicant's Attorney Requesting Earnings Information 17.99
      • 6. Surveillance Videotapes and Films
        • a. Admissibility 17.100
        • b. Authentication 17.101
        • c. Relevance 17.102
        • d. Impeachment Value 17.103
        • e. Meeting Applicant's Rebuttal 17.104
    • F. Medical Preparation 17.105
    • G. Petitions and Motions Before Trial 17.106
      • 1. Form: Petition to Dismiss Application 17.107
      • 2. Petition to Dismiss for Lack of Prosecution (Injuries Occurring Before January 1, 1990, or On or After January 1, 1994) 17.108
      • 3. Dismissal for Want of Prosecution (Injuries Occurring On or After January 1, 1990, and Before January 1, 1994) 17.109
      • 4. Form: Petition to Dismiss Improperly Joined Insurer 17.110
      • 5. Form: Petition to Join Additional Employers and Insurers 17.111
      • 6. Form: Petition for Order Directing Exhumation and Autopsy 17.112
      • 7. Form: Petition to Suspend Proceedings and to Compel Medical Examination 17.113
      • 8. Form: Petition to Bar Applicant's Right to Disability Payments 17.114
    • H. Preparing Proposed Permanent Disability Rating 17.115

18

Trial

Yale I. Jones

  • I. REGULAR HEARING PROCEDURE (TRIAL) 18.1
    • A. Trial Briefs and Oral Statements 18.2
    • B. Persuasion 18.3
    • C. Time Limitations and Narrowing Issues
      • 1. Time Limitations 18.4
      • 2. Narrowing Issues 18.5
      • 3. Collateral Issues 18.6
      • 4. Economy of Proof; Frivolous Delay 18.7
    • D. Review of Issues and Stipulations
      • 1. Confirm Issues and Stipulations 18.8
      • 2. Raise Issue or Risk Waiver
        • a. Rule 18.9
        • b. Exceptions 18.10
    • E. Admitting Documents Into Evidence 18.11
    • F. Order of Proof 18.12
    • G. How Workers' Compensation Judge Weighs Evidence 18.13
    • H. Continuances 18.14
    • I. Failure to Appear 18.15
      • 1. Dismissal 18.16
      • 2. Order Off Calendar 18.17
      • 3. Submit and Decide 18.18
      • 4. Continuance 18.19
      • 5. Sanctions 18.19A
  • II. BURDENS OF PROOF AND PRESUMPTIONS 18.20
    • A. Applicant's Burden of Proof 18.21
      • 1. Proving Cause of Physical Injury 18.22
      • 2. Proving Cause of Psychiatric Injury 18.23
    • B. Defense Burden of Proof
      • 1. Affirmative Defenses 18.24
      • 2. Assertion of Issue 18.25
      • 3. Burden Shifts During Trial 18.26
    • C. Presumptions in General 18.27
    • D. Conclusive Presumptions
      • 1. Dependency 18.28
      • 2. Total Disability 18.29
      • 3. Other Conclusive Presumptions 18.30
    • E. Rebuttable Presumptions
      • 1. Employee Status 18.31
        • a. Independent Contractors Excluded 18.32
        • b. Licensed/Unlicensed Contractors 18.33
      • 2. Failure to Deny Liability Within 90 Days (Lab C §5402) 18.34
        • a. Counting 90 Days 18.35
        • b. Employer's Duty to Provide Claim Form 18.36
        • c. Rebutting Presumption 18.37
        • d. Form and Notice of Denial 18.38
      • 3. Findings of Treating Physician [Deleted] 18.39
        • a. When Former Presumption Inapplicable [Deleted] 18.40
        • b. Rebutting Former Presumption [Deleted] 18.41
      • 4. Duration of Temporary Disability 18.42
      • 5. Presumption of Correctness Regarding Extent and Scope of Medical Treatment 18.42A
      • 6. Other Rebuttable Presumptions
        • a. Public Safety Employees 18.43
        • b. Unlawfully Uninsured Employers 18.43A
        • c. Vocational Rehabilitation [Deleted] 18.43B
        • d. Refusal to Permit Autopsy 18.43C
    • F. "Quasi-Presumptions" 18.44
    • G. Inferences 18.45
    • H. Effect of Stipulations
      • 1. Parties Bound 18.46
      • 2. Workers' Compensation Appeals Board Not Bound 18.47
  • III. EVIDENCE
    • A. General Evidentiary Policies and Rules 18.48
      • 1. Hearsay 18.49
      • 2. Full Disclosure Requirement 18.50
      • 3. Objections to Evidence 18.51
    • B. Documentary Evidence
      • 1. Admitting Documents in Evidence 18.52
      • 2. Objections to Admission of Document 18.53
    • C. Evidentiary Privileges
      • 1. Applicability of Privileges 18.54
      • 2. Medical Information 18.55
      • 3. Self-Incrimination 18.56
      • 4. Attorney-Client Privilege; Work Product Doctrine 18.57
      • 5. Inadvertent Receipt of Privileged Information 18.58
      • 6. Sexual Conduct 18.59
      • 7. Other Privileges 18.60
  • IV. WITNESSES 18.61
    • A. Witness Preparation and Direct Examination 18.62
    • B. Cross-Examination 18.63
    • C. Offers of Proof 18.64
  • V. DEVELOPMENT AND PROTECTION OF THE RECORD
    • A. Preserving the Record 18.65
    • B. Form: Minutes of Hearing (DWC-CA Form 10245) [Deleted] 18.66
    • C. Workers' Compensation Judges' Obligation to Develop Record 18.67
    • D. Use of Record on Reconsideration 18.68
  • VI. POSTHEARING PROCEDURES
    • A. Closing the Record; Disposition Orders 18.69
    • B. Petition to Vacate Submission 18.70
    • C. Attorney Fees 18.71
      • 1. Defendant's Liability for Applicant's Attorney Fees 18.71A
      • 2. Only Licensed Attorneys May Receive Fee 18.71B
      • 3. Declaration of Readiness to Proceed Filed by Defendant 18.71C
      • 4. Calculating Attorney Fees 18.71D
      • 5. Appropriate Withholding of Attorney Fees 18.71E
    • D. Costs 18.71F
      • 1. Deposition Fees and Costs 18.71G
      • 2. Appellate Costs 18.71H
      • 3. Bad Faith Actions 18.71I
      • 4. Effect of Third Party Recovery 18.71J
      • 5. When Costs May Be Denied 18.71K
    • E. Service of Formal Rating 18.72
    • F. Methods of Objecting to Rating 18.73
      • 1. Obvious Errors 18.74
      • 2. Motion to Strike 18.75
      • 3. Cross-Examination of Disability Evaluation Unit Rater 18.76
      • 4. Rebuttal Evidence 18.77

19

Arbitration

Dennis J. Hannigan

  • I. GOVERNING PROVISIONS 19.1
  • II. EMPLOYEE OR DEPENDENT MUST BE REPRESENTED BY COUNSEL 19.2
  • III. WHEN MANDATORY 19.3
    • A. Insurance Coverage 19.4
    • B. Right of Contribution Under Lab C §5500.5 19.5
    • C. Permanent Disability 19.6
    • D. Vocational Rehabilitation Issues 19.7
  • IV. WHEN VOLUNTARY 19.8
  • V. FORMS
    • A. Form: Arbitration Submittal Form (DWC-CA Form 10297) 19.9
    • B. Form: Arbitration Submittal Orders (WCAB Form 33) 19.10
    • C. Form: Arbitrator Application 19.10A
  • VI. ARBITRATORS
    • A. Eligibility 19.11
    • B. Selection 19.12
    • C. Powers 19.13
  • VII. PROCEEDINGS
    • A. Time and Place 19.14
    • B. Filing and Service of Documents 19.15
    • C. Ex Parte Communications and Disclosure of Settlement Offers Prohibited 19.16
    • D. Other Ground Rules 19.17
    • E. Decision 19.18
    • F. Payment of Costs 19.19
    • G. Reconsideration 19.20
  • VIII. CARVE-OUTS 19.20A
    • A. Construction Industry Carve-Outs 19.21
    • B. General Industry Carve-Outs 19.21A
  • IX. INSURANCE CONTROVERSIES 19.22

20

Decisions, Awards, and Judgments

  • I. DECISIONS
    • A. Terminology 20.1
    • B. When Issued 20.2
    • C. Components
      • 1. Summary of Evidence 20.3
      • 2. Opinion on Decision 20.4
      • 3. Findings of Fact 20.5
        • a. Specific Findings 20.6
        • b. Amendment to Conform to Proof 20.7
      • 4. Award 20.8
      • 5. WCAB File 20.8A
      • 6. Destruction of Case Files 20.8B
    • D. Types of Awards
      • 1. Provision for Adjustment by Parties 20.9
      • 2. Continuing Awards 20.10
      • 3. Separate, Joint, and Several Awards
        • a. Cases Consolidated for Hearing 20.11
        • b. Multiple Defendants 20.12
        • c. Cumulative Injuries and Occupational Diseases 20.13
    • E. Unresolved and Deferred Issues 20.14
    • F. Penalties, Costs, Fees, and Interest
      • 1. Penalties, Costs, and Fees 20.15
      • 2. Interest 20.16
      • 3. Prejudgment Interest on Lab C §132a Award 20.16A
      • 4. Interest Rate 20.17
      • 5. Interest on Medical-Legal and Medical Treatment Expenses 20.18
      • 6. Interest Payable to Employment Development Department 20.19
    • G. Service
      • 1. Service by Board and Parties 20.20
      • 2. Extension of Time for Responding 20.20A
      • 3. Proof of Service 20.21
      • 4. Defective Service 20.22
  • II. COLLECTING AWARDS
    • A. Alternative Methods 20.23
    • B. Uninsured Employers Benefits Trust Fund
      • 1. Nature of Fund 20.24
      • 2. Demand on Fund 20.25
      • 3. Fund Liability 20.26
      • 4. Fund's Recovery From Uninsured Employer
        • a. In General 20.27
        • b. Civil Penalty Assessments 20.28
        • c. Lien Against Property 20.29
        • d. Liquidated Damages, Judgment, and Civil Foreclosure 20.30
        • e. Judgment Against Entities Regulated by Public Utilities Commission or Department of Motor Vehicles 20.31
      • 5. Fund's Recovery From Third Party 20.32
    • C. Assignment to Labor Commissioner 20.33
    • D. Judgment; Execution
      • 1. Converting Award Into Judgment 20.34
        • a. Obtain Certified Copy of Decision 20.35
        • b. Superior Court Clerk Enters Judgment 20.36
      • 2. Writ of Execution 20.37
      • 3. Stay of Execution
        • a. Authority 20.38
        • b. Automatic 10-Day Stay 20.39
        • c. Stay Before Entry of Judgment; Withholding Certified Copy of Award 20.40
        • d. Stay After Entry of Judgment 20.41
        • e. Procedure 20.42
      • 4. Supplemental Proceedings on Execution 20.43
      • 5. Satisfaction of Judgment 20.44
  • III. PRIORITY; INSOLVENCY
    • A. Priority of Compensation Claims 20.45
    • B. Bankruptcy or Insolvency of Employer or Insurer
      • 1. In General 20.46
      • 2. California Insurance Guarantee Association 20.47
      • 3. Self-Insurers' Security Fund 20.48
      • 4. Bankruptcy 20.49

21

Reconsideration

Dennis J. Hannigan

  • I. INTRODUCTION
    • A. Nature of Reconsideration Procedure 21.1
    • B. Review of Arbitrator's Decision 21.2
    • C. Review of Contempt Finding 21.3
    • D. Reopening and Removal Distinguished
      • 1. Reopening 21.4
      • 2. Removal 21.5
  • II. BEFORE PETITIONING FOR RECONSIDERATION
    • A. Understand Reasons to Petition for Reconsideration 21.6
    • B. Assess Prospects for Success 21.7
  • III. PREREQUISITES TO RECONSIDERATION
    • A. Final Order, Decision, or Award 21.8
      • 1. Orders That Are Not Final 21.9
      • 2. Severed Threshold Issues 21.10
      • 3. Finality for Some Parties, But Not Others 21.11
    • B. Petitioner Is Person Aggrieved 21.12
    • C. Grounds 21.13
      • 1. Workers' Compensation Appeals Board Exceeded Powers 21.14
      • 2. Decision Procured by Fraud 21.15
      • 3. Findings Not Justified by Evidence 21.16
      • 4. Newly Discovered Evidence 21.17
      • 5. Findings Do Not Support Order or Award 21.18
      • 6. Change in the Law 21.18A
      • 7. Preserving Grounds at Trial; Waiver 21.19
    • D. Timely Filing 21.20
      • 1. If Order, Decision, or Award Served by Mail 21.21
      • 2. If Order, Decision, or Award Served by Fax, E-mail, or Any Other Method 21.21A
      • 3. If Order, Decision, or Award Defectively Served 21.22
      • 4. Filing Supplemental Reconsideration Petitions 21.23
      • 5. Arbitrator's Decisions Under Lab C §§3201.5, 3201.7 21.24
  • IV. FILING PETITION FOR RECONSIDERATION
    • A. Content; Specificity 21.25
    • B. Waiver of Unstated Grounds 21.26
    • C. Drafting the Petition
      • 1. Format Requirements 21.27
      • 2. Caption; Introduction 21.28
      • 3. Preliminary Statement; Grounds 21.29
      • 4. Statement of Contentions 21.30
      • 5. Summary of Material Facts 21.31
      • 6. Argument 21.32
      • 7. Request for Transcript 21.33
      • 8. Prayer 21.34
      • 9. Signature; Verification 21.35
      • 10. Form: Petition for Reconsideration (WCAB Form 45) 21.36
    • D. Exhibits 21.37
    • E. Service 21.38
    • F. Proof of Service 21.39
      • 1. Statement on Petition 21.40
      • 2. Statement in Letter of Transmittal 21.41
      • 3. Declaration of Service 21.42
      • 4. Proof of Service by E-mail or Fax 21.42A
      • 5. Failure of Service 21.42B
    • G. Filing: How and Where 21.43
  • V. ANSWERS AND REPLIES
    • A. Answer to Petition for Reconsideration 21.44
    • B. Reply to Answer 21.45
    • C. Reply to Workers' Compensation Judge's Report 21.46
  • VI. DISPOSITION OF PETITION
    • A. Workers' Compensation Judge's or Arbitrator's Actions and Reports 21.47
      • 1. Workers' Compensation Judge Actions 21.48
      • 2. Workers' Compensation Judge Report 21.49
      • 3. Arbitrator Report 21.50
      • 4. Settlement Conference Referee Report [Deleted] 21.51
    • B. Board's Authority 21.52
    • C. Board's Action on Petition
      • 1. Procedure 21.53
      • 2. Adequacy of Board Decision on Reconsideration (Lab C §5908.5) 21.54
      • 3. Time to Grant or Deny 21.55
      • 4. Permissible Actions
        • a. Dismissal 21.56
        • b. Denial 21.57
        • c. Grant: Options 21.58
          • (1) Immediate Decision on the Record 21.59
          • (2) Grant for Study, Transcript, or Supplemental Report 21.60
          • (3) Grant to Take Additional Evidence 21.61
          • (4) Grant to Rescind and Return to Workers' Compensation Judge for Further Proceedings 21.62
    • D. Successive Petitions for Reconsideration 21.63
    • E. Effects on Order, Decision, or Award (of Filing Petitions for Reconsideration)
      • 1. Enforcement; Stay 21.64
      • 2. Interest 21.65
      • 3. Nonpetitioning Parties 21.66
  • VII. RECONSIDERATION ON BOARD'S OWN MOTION 21.67

22

Judicial Review

Peter Ray

Patricia S. Stephens

  • I. MECHANISMS FOR JUDICIAL REVIEW
    • A. Statutory Review
      • 1. Writ of Review 22.1
      • 2. Writ of Mandate 22.2
      • 3. Writ of Prohibition 22.3
    • B. Common Law Review: Habeas Corpus and Restraint of Execution 22.4
  • II. TABLE: TIME LIMITS FOR JUDICIAL REVIEW 22.5
  • III. CONSIDERATIONS BEFORE SEEKING REVIEW
    • A. Difficulty of Overturning Board's Decision 22.6
    • B. Grounds for Review
      • 1. Action Without or in Excess of Powers 22.7
      • 2. Decision Procured by Fraud 22.8
      • 3. Unreasonable Decision 22.9
      • 4. Decision Not Supported by Substantial Evidence
        • a. What Is "Substantial Evidence"? 22.10
        • b. Board's Fact-Finding Powers 22.11
        • c. Power to Base Award on Hearsay Evidence 22.12
      • 5. Failure of Findings to Support Decision
        • a. Attacking Board Findings 22.13
        • b. Typical Jurisdictional Facts on Which Findings Must Be Made 22.14
    • C. Potential for Attorney Fees for Answering Petition Lacking Reasonable Basis 22.15
  • IV. PLEADINGS AND PROCEDURES
    • A. Petition for Writ of Review
      • 1. Prerequisites
        • a. Prior Petition for Reconsideration 22.16
        • b. Final Decision 22.17
      • 2. Procedural Requirements
        • a. Time to File 22.18
        • b. Where to File 22.19
        • c. Method of Reproduction; Length 22.20
        • d. Number of Copies 22.21
        • e. Other Essential Requirements 22.22
      • 3. Content and Format
        • a. Components 22.23
        • b. Cover 22.24
        • c. Topical Index 22.25
        • d. Table of Authorities Cited 22.26
        • e. Title of Court and Cause 22.27
        • f. Formal Address 22.28
        • g. Opening Paragraph 22.29
        • h. Allegations Identifying Parties and History of Claim
          • (1) When Petitioner Is Employee 22.30
          • (2) When Petitioner Is Dependent 22.31
          • (3) When Petitioners Are Defendants 22.32
        • i. Proceedings Before Board 22.33
        • j. Grounds for Review Raised in Reconsideration Petition 22.34
        • k. Questions Presented 22.35
        • l. Incorporation of Points and Authorities 22.36
        • m. Allegations Supporting Right to Petition
          • (1) Petition Timely and Proper 22.37
          • (2) No Right to Appeal 22.38
          • (3) Residence and Beneficial Interest 22.39
        • n. Prayer; Signature 22.40
        • o. Verification
          • (1) By Affidavit 22.41
          • (2) By Declaration 22.42
          • (3) Importance of Verification 22.43
        • p. Exhibits 22.44
        • q. Points and Authorities 22.45
          • (1) Questions Presented 22.46
          • (2) Statement of Material Facts 22.47
          • (3) Argument and Authorities 22.48
          • (4) Conclusion 22.49
      • 4. Filing and Service
        • a. Filing 22.50
        • b. Service 22.51
      • 5. Stay of Decision Pending Appellate Review 22.52
    • B. Answer
      • 1. Not Required But Always Filed 22.53
      • 2. Who May File 22.54
      • 3. Procedural Requirements
        • a. Time to File; Copies 22.55
        • b. Extension of Time
          • (1) Stipulation Extending Time to File Answer 22.56
          • (2) Application for Extension of Time to Answer 22.57
          • (3) Order Extending Time to File Answer 22.58
      • 4. Content and Format
        • a. Same General Format as Petition 22.59
        • b. Title When Attorney Fee Requested Under Lab C §5801 22.60
        • c. Opening Paragraph 22.61
        • d. Identification of Respondent; Denial of Allegations in Petition 22.62
        • e. Allegation of Lack of Reasonable Basis for Petition 22.63
        • f. Questions Presented 22.64
        • g. Statement of Material Facts 22.65
        • h. Argument and Authorities 22.66
        • i. Conclusion 22.67
        • j. Verification and Exhibits 22.68
      • 5. Filing and Service 22.69
    • C. Reply to Answer
      • 1. Should Reply Be Made? 22.70
      • 2. Time to File; Copies 22.71
      • 3. Content and Format
        • a. Same General Format as Petition; Exceptions 22.72
        • b. Argument and Authorities 22.73
        • c. Conclusion 22.74
      • 4. Filing and Service 22.75
    • D. Citation to New Authorities 22.75A
  • V. DISPOSITION OF PETITION FOR WRIT OF REVIEW
    • A. When Denied Without Hearing 22.76
    • B. When Hearing Granted
      • 1. Issuance of Writ of Review 22.77
      • 2. Oral Argument
        • a. Date 22.78
        • b. Time Estimates 22.79
        • c. Waiver 22.80
        • d. Sequence of Presentations 22.81
      • 3. Submission 22.82
      • 4. Decision 22.83
    • C. Appellate Costs 22.84
  • VI. SUBSEQUENT PROCEEDINGS
    • A. Petition for Rehearing in Court of Appeal
      • 1. Not Available When Review Denied Without Opinion 22.85
      • 2. When Review Granted 22.86
        • a. Time to File; Copies 22.87
        • b. Content and Format
          • (1) Same General Format as Original Petition 22.88
          • (2) Opening Paragraph 22.89
          • (3) Questions Presented; Argument and Authorities 22.90
          • (4) Prayer 22.91
      • 3. Answer 22.92
      • 4. Disposition 22.93
    • B. Petition for Review by Supreme Court
      • 1. Grounds 22.94
      • 2. Time to File; Copies 22.95
      • 3. Content and Format
        • a. General Format; Page Limitation 22.96
        • b. Caption, Formal Address, and Opening Paragraph 22.97
        • c. Exhibits 22.98
      • 4. Filing and Service 22.99
      • 5. Answer 22.100
      • 6. Reply to Answer 22.101
      • 7. Petition May Be Denied Without Hearing 22.102
      • 8. If Petition Is Granted 22.103
      • 9. Oral Argument 22.104
      • 10. Decision 22.105
    • C. Petition for Rehearing in Supreme Court; Answer 22.106
  • VII. REMITTITUR
    • A. Nature 22.107
    • B. Action of Board on Remittitur 22.108

23

Supplemental Proceedings

  • I. BASES FOR CONTINUING JURISDICTION
    • A. Statutory Authority 23.1
    • B. Continuing Awards 23.2
    • C. Issues Undecided in Original Proceedings 23.3
    • D. Clerical Errors 23.4
    • E. Enforcement of Award 23.5
  • II. PETITIONS TO REOPEN
    • A. Based on Good Cause (Lab C §5803)
      • 1. Generally 23.6
      • 2. Defendant's Petition to Reopen 23.7
      • 3. Time Limits
        • a. Jurisdiction 23.8
        • b. After Dismissal of Application 23.9
      • 4. Condition Precedent 23.10
      • 5. Good Cause
        • a. Required Showing 23.11
        • b. Examples 23.12
    • B. Based on New and Further Disability (Lab C §5410)
      • 1. Generally 23.13
      • 2. Time Limits 23.14
      • 3. Conditions Precedent 23.15
      • 4. New and Further Disability Defined 23.16
    • C. Procedure
      • 1. Drafting the Petition 23.17
      • 2. Response to Petition 23.18
      • 3. Board Action on Petition to Reopen 23.19
      • 4. Attorney Fees 23.20
    • D. Table of Comparisons 23.21
    • E. Form: Petition to Reopen (WCAB Form 42) 23.22
  • III. TERMINATION OF LIABILITY
    • A. Temporary Disability
      • 1. Continuing Awards 23.23
      • 2. Procedure for Terminating Liability 23.24
      • 3. Effect of Vocational Rehabilitation on Petition to Terminate (Injuries Before January 1, 2004) 23.25
      • 4. Form: Petition to Terminate Liability for Temporary Disability Indemnity (DWC/WCAB Form 46) 23.26
      • 5. Objection to Petition to Terminate 23.27
    • B. Further Medical Treatment 23.28
    • C. Attorney Fees for Resisting Termination of Liability 23.29
    • D. Automatic Termination of Liability 23.30
      • 1. Statutory Limitation 23.31
      • 2. Death 23.32
      • 3. Credit for Third Party Recovery
        • a. Right to Credit 23.33
        • b. Amount of Credit 23.34
        • c. Against Malpractice Recovery 23.35
        • d. Against Attorney Fees; Against Other Recovery 23.36
  • IV. PROCEEDINGS TO EVALUATE PERMANENT DISABILITY
    • A. Permanent Disability 23.37
    • B. Petition for Permanent Disability Rating 23.38
  • V. CREDIT, RESTITUTION, AND LIENS
    • A. Credit
      • 1. Lab C §4909 23.39
      • 2. Availability of Credit for Specific Types of Benefit Overpayments
        • a. Temporary Disability 23.40
        • b. Wage Payments 23.41
        • c. Private Disability Plans 23.42
        • d. Medical Expenses; Overpayment of Temporary Disability Indemnity and Permanent Disability Indemnity 23.43
        • e. Labor Code §5814 Penalty 23.43A
        • f. Social Security Disability Benefits 23.44
        • g. Lab C §4850 Benefits 23.45
        • h. Longshore and Harbor Workers' Benefits 23.46
        • i. Jurisdiction and Waiver 23.47
        • j. Unilateral Credit 23.48
    • B. Restitution
      • 1. By Employee 23.49
      • 2. By Lien Claimant 23.50
      • 3. Examples of Restitution Orders 23.51
      • 4. Restitution Under Ins C §§1871.4–1871.5 23.52
    • C. Lien 23.53
  • VI. CONTRIBUTION
    • A. Nature of Proceeding 23.54
    • B. Rights and Liabilities of Multiple Defendants 23.55
    • C. Which Employers Are Liable 23.56
    • D. Apportionment of Liability 23.57
    • E. Time Limit for Filing Petitions for Contribution 23.58
    • F. Form: Petition for Contribution Under Lab C §5500.5 23.59
    • G. Contribution Proceedings 23.60
  • VII. COMMUTATION OF WEEKLY PAYMENTS TO LUMP SUM
    • A. Grounds; Timing 23.61
    • B. Effect of Commutation 23.62
    • C. Procedure
      • 1. Form: Petition for Commutation of Future Payments (WCAB Form 49) 23.63
      • 2. Request for Attorney Fees 23.64
      • 3. Objection 23.65
      • 4. Notice and Hearing 23.66
      • 5. Determination
        • a. Discretion of Workers' Compensation Appeals Board 23.67
        • b. Amount of Lump Sum 23.68
      • 6. Order
        • a. Full or Partial Commutation 23.69
        • b. Commutation to Pay Lien Claims and Attorney Fees 23.70
        • c. Prohibited Commutations 23.71
        • d. Payment Restrictions 23.72
  • VIII. OTHER SUPPLEMENTAL PROCEEDINGS
    • A. Petition for Relief From Failure to Appear 23.73
    • B. Correction of Clerical Errors 23.74

CALIFORNIA WORKERS' COMPENSATION PRACTICE

(4th Edition)

Table of Contents

File Name

Book Section

Title

CH10

Chapter 10

Representing Injured Workers

10-007

§10.7

Potential New Client Questionnaire

10-008

§10.8

Letter Confirming Appointment

10-009

§10.9

Nonengagement Letter

10-017

§10.17

Supplementary Fee Disclosure Statement

10-020

§10.20

Venue Authorization

10-021

§10.21

Authorization for Release of Medical Information

10-022

§10.22

Authorization for Release of Psychiatric, Drug, and Alcohol Treatment Records

10-023

§10.23

Authorization for Release of Employment and School Records

10-024

§10.24

Letter to Workers’ Compensation Insurance Rating Bureau Requesting Compensation Coverage Information

10-026

§§10.26–10.30

Injured Employee and Dependents

 

§10.27

Employment Status

 

§10.28

Earnings

 

§10.29

Employer’s Insurance

 

§10.30

Injury

10-031

§§10.31–10.34

Injuries Resulting in Death

 

§10.32

Prior Injuries or Disabilities

 

§10.33

Medical Treatment and Expenses

 

§10.34

Compensation to Date

10-035

§10.35

Notice of Supplemental Job Displacement Benefit (Voucher) (Injuries Occurring On or After 1/1/2004 and Before 1/1/2013)

10-035A

§10.35A

Notice of Supplemental Job Displacement Benefit (Voucher) (Injuries Occurring On or After January 1, 2013)

10-036

§10.36

Claim Form; Procedural Information

10-038

§10.38

Letter of Representation to New Client

10-041

§10.41

Notice of Representation to Employer

10-043

§10.43

Letter to Insurer or Adjusting Agency

10-047

§10.47

Letter Designating Primary Treating Physician

10-048

§10.48

Letter Regarding Medical Bills Received by Applicant

10-056

§10.56

Letter to Worker Regarding Deposition

10-057

§10.57

Letter Requesting Payment for Fees and Costs Associated With Injured Worker’s Deposition

10-058

§10.58

Petition for Attorney Fees and Expenses for Injured Worker’s Deposition

10-059

§10.59

Letter Requesting Worker to Review Deposition Transcript

10-061

§10.61

Letter to Worker Regarding Medical Evaluation

10-063

§10.63

Letter to Doctor to File Lien

10-064

§10.64

Letter Notifying Worker of Hearing Request

10-065

§10.65

Letter Notifying Worker of Settlement Conference Date

10-070

§10.70

Letter Notifying Worker of Closed Case File

CH11

Chapter 11

Representing Defendants

11-022

§11.22

Statement of Employee’s Gross Earnings

11-029

§11.29

Compensation Litigation Transmittal Note

11-034

§11.34

Letter to Employment Development Department

11-037

§11.37

Letter Requesting Signed Social Security Earnings Release

11-042

§11.42

Applicant’s Deposition Worksheet

11-043

§11.43

Petition to Compel Answers to Questions and Production of Documents at Deposition

11-046

§11.46

Petition for Order Compelling Production of Psychiatric Records; Order

11-048

§11.48

Deposition Letter to Primary Treating Physician

11-049

§11.49

Petition to Compel Attendance at Medical Evaluation

11-055

§11.55

Petition for Joinder

11-057

§11.57

Letter to Employer Re: Lack of Coverage

11-058

§11.58

Letter to Applicant or Codefendant Re: Lack of Coverage

11-059

§11.59

Petition to Dismiss for Lack of Coverage; Order

11-061

§11.61

Petition to Strike Application (Lab C §4906(g), Declaration Missing); Order

11-062

§11.62

Petition to Dismiss—No Employment Within Last Year of Injurious Exposure

11-063

§11.63

Petition to Dismiss—No Coverage Within Last Year of Injurious Exposure

11-064

§11.64

Petition to Dismiss—Statute of Limitations

11-065

§11.65

Petition to Dismiss—Failure to Prosecute

11-081

§11.81

Objection to Medical-Legal Expense

11-085

§11.85

Objection to Medical Treatment Expense

11-088

§11.88

Petition for Credit for Third Party Recovery

11-089

§11.89

Petition for Restitution From Injured Worker

11-090

§11.90

Petition for Reimbursement From Codefendant

11-092

§11.92

Petition for Reimbursement of Paid Medical-Legal Expense

11-095

§11.95

Letter From Insurer’s Attorney Advising Employer of Serious and Willful Misconduct Petition

11-097

§11.97

Letter Advising Insured Employer of Petition Alleging Discrimination

CH12

Chapter 12

Time Limitations

12-010

§12.10

Notice of Injury

12-051

§12.51

Allegations of Incompetence, Competence Regained

CH13

Chapter 13

Filing With the Workers’ Compensation Appeals Board

13-021

§13.21

Parties Checklist

13-085

§13.85

Sample Allegations of Injury and Exposure

13-095

§13.95

Petition for Award for Employer’s Serious and Willful Misconduct

13-095A

§13.95A

Petition for Award for Employer’s Serious and Willful Misconduct—Violation of Safety Order (Lab C §4553.1)

13-101

§13.101

Cite or Refer Correctly to Safety Order or Statute

13-102

§13.102

State How Safety Order or Statute Was Violated

13-103

§13.103

Sample Allegation: General Misconduct

13-105

§13.105

Petition for Award Under Lab C §132a

13-113

§13.113

Declaration Under Lab C §4906(g)

13-150

§13.150

Answer to Petition and Request for Dismissal or Continuance

13-155

§13.155

Initial Appearance

CH14

Chapter 14

Gathering Evidence

14-011

§14.11

Authorization for Medical Information

14-034

§14.34

Declaration by Signing Physician

14-079

§14.79

Checklist: Deposition Information From Employee

14-100

§14.100

Sample Order Re: Confidentiality

CH16

Chapter 16

Settlement

16-034

§16.34

Addendum to Compromise and Release

16-043

§16.43

Sample Computation of Fair Allocation to Unemployment Compensation Disability Lien Claim (Baird Formula)

16-044

§16.44

Sample Computation of Lien Reduction Under Lab C §4903.1(a)(4)

16-077

§16.77

Preparation

16-084

§16.84

Sample Letter Requesting Fee (To Accompany WCAB Form 4)

CH17

Chapter 17

Preparing for Trial

17-040

§17.40

Petition for Automatic Reassignment to Another Workers’ Compensation Judge

17-042

§17.42

Petition to Disqualify Assigned Workers’ Compensation Judge

17-047

§17.47

Checklist: Refining Issues

17-079

§17.79

Additions to Employer’s Report of Occupational Injury or Illness

17-099

§17.99

Letter to Applicant’s Attorney Requesting Earnings Information

17-107

§17.107

Petition to Dismiss Application

17-108

§17.108

Petition to Dismiss for Lack of Prosecution (Injuries Occurring Before January 1, 1990, or On or After January 1, 1994)

17-110

§17.110

Petition to Dismiss Improperly Joined Insurer

17-111

§17.111

Petition to Join Additional Employers and Insurers

17-112

§17.112

Petition for Order Directing Exhumation and Autopsy

17-113

§17.113

Petition to Suspend Proceedings and to Compel Medical Examination

17-114

§17.114

Petition to Bar Applicant’s Right to Disability Payments

CH21

Chapter 21

Reconsideration

21-028

§§21.28–21.35

Caption; Introduction

 

§21.29

Preliminary Statement; Grounds

 

§21.30

Statement of Contentions

 

§21.31

Summary of Material Facts

 

§21.32

Argument

 

§21.33

Request for Transcript

 

§21.34

Prayer

 

§21.35

Signature; Verification

21-040

§21.40

Statement on Petition

21-041

§21.41

Statement in Letter of Transmittal

21-042

§21.42

Declaration of Service

CH22

Chapter 22

Judicial Review

22-024

§§22.24–22.26

Cover

 

§22.25

Topical Index

 

§22.26

Table of Authorities Cited

22-028

§§22.28–22.42

Formal Address

 

§22.29

Opening Paragraph

 

§22.30

When Petitioner Is Employee

 

§22.31

When Petitioner Is Dependent

 

§22.32

When Petitioners Are Defendants

 

§22.33

Proceedings Before Board

 

§22.34

Grounds for Review Raised in Reconsideration Petition

 

§22.35

Questions Presented

 

§22.36

Incorporation of Points and Authorities

 

§22.37

Petition Timely and Proper

 

§22.38

No Right to Appeal

 

§22.39

Residence and Beneficial Interest

 

§22.40

Prayer; Signature

 

§22.41

By Affidavit

 

§22.42

By Declaration

22-047

§22.47

Statement of Material Facts

22-056

§22.56

Stipulation Extending Time to File Answer

22-057

§22.57

Application for Extension of Time to Answer

22-058

§22.58

Order Extending Time to File Answer

22-060

§22.60

Title When Attorney Fee Requested Under Lab C §5801

22-061

§22.61

Opening Paragraph

22-062

§22.62

Identification of Respondent; Denial of Allegations in Petition

22-063

§22.63

Allegation of Lack of Reasonable Basis for Petition

22-064

§22.64

Questions Presented

22-065

§22.65

Statement of Material Facts

22-067

§22.67

Conclusion

22-074

§22.74

Conclusion

22-089

§22.89

Opening Paragraph

22-091

§22.91

Prayer

22-097

§22.97

Caption, Formal Address, and Opening Paragraph

22-098

§22.98

Exhibits

CH23

Chapter 23

Supplemental Proceedings

23-059

§23.59

Petition for Contribution Under Lab C §5500.5

 

Selected Developments

March 2017 Update

Chapter 2 (Jurisdiction)

  • The California Supreme Court has granted review in King v CompPartners, Inc. (review granted Apr. 13, 2016; superseded opinion at 243 CA4th 685, 81 CCC 10) to determine (1) whether a claim by an injured worker for medical malpractice brought against a workers' compensation utilization review company is barred by the exclusivity rule and (2) whether a utilization review company owes a duty of care to an injured worker. See §§2.15, 3.61.

  • In CR England v WCAB (Dupont) (2016) 81 CCC 619 (writ denied), a Board panel deemed an employee's death to be industrial because the autopsy report could not exclude industrial head trauma (as against his alcohol consumption) as the cause of the seizure that led to his death. See §2.24.

  • The Ezzy test was used to deny compensation for an injury sustained by a physician while attending a medical conference to maintain his license when the defendant had not required or requested that the applicant attend the conference, the applicant had not told his employer that he was attending, and the applicant's attendance was on his own time for which he was not expecting reimbursement. See Hollie v WCAB (2016) 81 CCC 368 (writ denied) in §2.30.

  • A Board panel found that harassment by a coworker was an "actual event of employment" under Lab C §3208.3 when the harassment arose out of the coworker's belief that the applicant was gossiping about his personal life at work and management was involved in the dispute. See City of Santa Barbara v WCAB (Sanchez) (2016) 81 CCC 357 (writ denied) in §2.53.

  • An apartment complex maintenance supervisor's slip and fall on a wet concrete walkway was not a sudden and extraordinary employment condition under Lab C §3208.3(d) when the supervisor routinely used the walkway to get from one building to another. See Travelers Cas. & Sur. Co. v WCAB (Dreher) (2016) 246 CA4th 1101, 1108, 81 CCC 402, in §2.54A.

  • Because the employee accepted the offer of employment via e-mail when he was physically in Georgia, the contract for hire was made in Georgia for purposes of determining jurisdiction under Lab C §5305. See Walker v WCAB (2016) 81 CCC 461 (writ denied) in §2.89.

Chapter 3 (Medical Treatment)

  • A Board panel in Wells v WCAB (2016) 81 CCC 540 (writ denied) applied 8 Cal Code Regs §9792.9.1(f), which allows a nonphysician reviewer to request additional information necessary to made a utilization review decision. See §3.70.

  • The Board panel in Green v Elle Placement (Mar. 17, 2016, ADJ9917212) 2016 Cal Wrk Comp P.D. Lexis 120 found that cases in which a request for authorization of medical treatment is incomplete and the claims administrator needs additional information to make a decision are governed by the 14-day deadline in Lab C §4610(g)(1). See §3.74.

  • The communication of a utilization review denial of a prospective treatment request must meet both the 24-hour and 2-business-day deadlines of 8 Cal Code Regs §9792.9.1(e)(3). See Mulford v City of Los Angeles (June 7, 2016, ADJ8799162) 2016 Cal Wrk Comp P.D. Lexis 296 in §3.81.

  • Communicating a utilization review decision by fax does not obviate the requirement that the decision also be communicated "in writing." See Dallas v Pan Pac. Petroleum (Mar. 25, 2016, ADJ8182118) 2016 Cal Wrk Comp P.D. Lexis 116 in §3.81.

  • Although a "cc" notation on the utilization review decision was followed by the names of the physician, the applicant, and the applicant's attorney, the notation alone was not proof that the decision was in fact sent to those individuals. See San Francisco 49ers v WCAB (Visger) (2016) 81 CCC 295 (writ denied) in §3.82.

  • For purposes of calculating the timeliness of a utilization review decision, there are two separate deadlines: the deadline to make the decision and the deadline to communicate the decision. See Green v WCAB (2016) 81 CCC 624 (writ denied; although carrier made its utilization review decision late on 5th day, it had additional 24 hours from that time within which to communicate it to physician) in §3.82.

  • The refusal of five MPN physicians that applicant contacted to act as his primary treating physician did not constitute the denial of medical care justifying treatment outside the MPN when MPN had over 50 orthopedic surgeons and 15 chiropractors within 15 miles of applicant's zip code. See De Guevara v La Golondrina, Inc. (Feb. 23, 2016, ADJ9723046) 2016 Cal Wrk Comp P.D. Lexis 84 in §3.92.

Chapter 4 (Temporary Disability)

  • An employer may not charge payment of a CHP officer's salary against his or her accrued vacation, sick leave, or annual leave. See Hernandez v WCAB (2016) 2 CA5th 549, 557, 81 CCC 675, in §4.57.

Chapter 5 (Permanent Disability)

  • The Board panel in Geletko v California Highway Patrol (2016) 81 CCC 661 reaffirmed that because the legislature created the 1.4 modifier in 2013, but did not amend Lab C §4751 at the same time to exclude that modifier from the consideration of permanent disability "when considered alone," it intended to exclude only the age and occupation adjustments when considering disability alone. See §5.25E.

  • A claim for SIBTF benefits was untimely when substantial evidence established that the applicant knew or should have known of her eligibility for the benefits within 5 years of her date of injury. See Pimes v WCAB (2016) 81 CCC 377 (writ denied) in §5.28A.

  • Applicant's erectile dysfunction was properly included in his permanent disability rating because it was a direct result of nerve damage caused by a radical prostatectomy, which was itself required by his industrially caused prostate cancer. See City of Los Angeles v WCAB (Montenegro) (2016) 81 CCC 611 (writ denied) in §5.50H.

  • Being hit by a car from behind with enough force to cause a security guard to fall, hit her head, and lose consciousness constituted a "violent act" for purposes of Lab C §4660.1(c)(2). See Larsen v Securitas Sec. Servs. (2016) 81 CCC 770 (panel decision) in §5.50H.

Chapter 9 (Dispute Resolution Procedures)

  • The deadlines relating to independent medical review (IMR) decision are directory rather than mandatory. See State Compensation Ins. Fund v WCAB (Margaris) (2016) 248 CA4th 349, 364, 81 CCC 561, in §9.19.

  • Parties must not provide a QME or AME any medical report or record or any other information or thing that has been stricken, found inadequate, or deemed inadmissible. See Davis v City of Modesto (July 15, 2016, ADJ9467074) 2016 Cal Wrk Comp P.D. Lexis 345 in §9.44.

  • The Board panel in Vera v Monsanto Co. (July 15, 2016, ADJ6698762) 2016 Cal Wrk Comp P.D. Lexis 360 found good cause for an evaluation by a panel QME in a second specialty. See §9.66.

Chapter 11 (Representing Defendants)

  • A Board panel concluded that the first-appointed panel QME must evaluate all injuries claimed in the applications filed before the first evaluation. See Parker v DSC Logistics (2016) 44 CWCR 213 in §11.73.

  • Service of an authorization request on defense counsel may trigger the utilization review time deadlines. See Czech v Bank of America (May 31, 2016, ADJ8917716) 2016 Cal Wrk Comp P.D. Lexis 257 in §11.83.

Chapter 12 (Time Limitations)

  • The date of the incident that caused a specific injury begins the running of the limitations period for filing an application, even if the applicant did not know until later of his or her right to seek workers' compensation benefits. See Ostini v WCAB (2016) 81 CCC 752 (writ denied; statute of limitations not tolled by employer's failure to provide claim form absent evidence that employer knew of injury) in §12.2.

  • An applicant's assertion of a claim for an injury caused by a single event does not bar a later cumulative injury claim based on medical evidence of continuing industrial exposure to injury-causing industrial events. See Kimmel v Department of Corrections & Rehabilitation (2016) 44 CWCR 272 (WCAB panel); Aerospace Corp. v WCAB (Gassman) (2016) 81 CCC 838 (writ denied); and Illinois Midwest Ins. Agency, LLC v WCAB (Whitt) (2016) 81 CCC 844 (writ denied) in §12.3.

  • Notice to, or knowledge by, the employer of the injury's occurrence is considered notice to, or knowledge by, the insurance carrier under Ins C §11652. See Truck Ins. Exch. v WCAB (Kwok) (2016) 2 CA5th 394, 402, 81 CCC 685 (laches defense to claim filed 7 years after injury occurred not available to insurer because employer became aware of injury 1 day after it occurred, and thus late filing did not prejudice insurer, which was deemed under §11652 to have been given notice at that time), in §12.13.

  • Filing a claim for one form of a circulatory system injury (e.g., stroke) begins the running of the limitations period for related forms of the same injury (e.g., blood cancer) despite the applicant's desire not to reveal the latter condition. See Zada v Allpro Millworking Inc. (2016) 44 CWCR 271 (WCAB panel) in §12.28.

  • A retiring deputy sheriff's advance disability retirement benefits are "compensation" under Lab C §3207 and delay in beginning their payment justifies the assessment of a Lab C §5814 penalty. See Gage v WCAB (Nov. 22, C081618) 2016 Cal App Lexis 11120, 81 CCC 1127, 44 CWCR 265, in §12.41A.

  • The applicant's SIBTF claim, filed 11 years after the stipulated injury date, was barred by Lab C §5410; the applicant's filing of a SIBTF claim for an earlier injury showed knowledge of a potential SIBTF claim for later injury. See Pimes v WCAB, supra (writ denied) in §12.43.

  • The statute of limitations was tolled as to a corporate officer's specific injury claim when evidence showed that he was unaware that he was covered by the corporation's workers' compensation insurance and the insurer had failed to inform him of his right to file a claim. See Breckenridge Ins. Servs., LLC v WCAB (Groth) (2016) 81 CCC 733 (writ denied) in §12.60.

Chapter 15 (Liens)

  • The prohibition in Lab C §4903.8(a)(1) against the payment of a lien award to individuals other than those who incurred the expense does not impair the state constitutional right to contract or violate the mandate that the workers' compensation laws accomplish justice without "any encumbrance." See Chorn v WCAB (2016) 245 CA4th 1370, 1383, 81 CCC 332, in §§15.5A, 15.58F.

  • Nonattorney representatives are held to the same standards as attorneys. See In re Javier Jimenez (2016) 81 CCC 288 (WCAB en banc; suspending privilege of nonattorney representative) and Trinh v Tzeng Long USA, Inc. (2016) 81 CCC 197 (WCAB en banc; same) in §15.10.

  • Permanent disability benefits, unlike temporary disability benefits, are subject to an EDD or VPA lien only to the extent that the permanent disability results "solely from the same injury or illness" as EDD or VPA benefits. See Santa Clara Valley Transp. Auth. v WCAB (LaRue) (2016) 81 CCC 382 (writ denied; apportionment of permanent disability benefits does not render EDD's lien invalid) in §15.49.

  • Unless otherwise expressly stated in the notice of hearing, all unresolved lien claims and lien issues must be heard at the lien conference. See Payne v WCAB (Cline) (2016) 81 CCC 535 (writ denied; that declaration of readiness was filed by another lien claimant and did not mention Dr. Payne's lien did not excuse his nonappearance at lien trial) in §§15.76A–15.76B.

Chapter 16 (Settlement)

  • The Board panel in Beltran v Structural Steel Fabricators (Aug. 3. 2016, ADJ9721385) 2016 Cal Wrk Comp P.D. Lexis 366, 44 CWCR 185, held that when there is a serious and good faith dispute that, if resolved against the applicant, would defeat his or her entitlement to workers' compensation benefits, the applicant may settle a potential right to the supplemental job displacement benefit. See §§16.7, 16.27.

Chapter 18 (Trial)

  • The defendant did not rebut the compensable injury presumption of Lab C §3212.1 merely by offering another explanation as to how the applicant might have developed chronic lymphocytic leukemia. See County of Riverside v WCAB (Couch) (2016) 81 CCC 519 (writ denied) in §18.43.

  • A vocational instructor was entitled to the compensable injury presumption of Lab C §3212.2 because his duties were "custodial" in nature, and the presumption applies not just to those employees whose primary duties are custodial, but to any correctional officer and other employee who has any custodial duties. See California Dep't of Corrections & Rehabilitation v WCAB (Alviso) (2016) 81 CCC 608 (writ denied) in §18.43.

Chapter 20 (Decisions, Awards, and Judgments)

  • Although the compromise and release settled the employee's claims and apportioned liability for the remaining liens between two carriers, the insolvency of one carrier did not alter the underlying joint and several nature of their liability and thus CIGA was not liable for the insolvent carrier's portion of the unresolved liens. See California Ins. Guar. Ass'n v WCAB (Lopez) (2016) 245 CA4th 1021, 1029, 81 CCC 317, in §20.47.

About the Authors

BRETT A. BORAH received his B.A. in 1972 from the University of California, Berkeley, and his J.D. in 1979 from the University of California, Hastings College of the Law. He is a partner in the firm of Scher & Bassett, specializing in workers' compensation law. Mr. Borah is certified as a specialist in workers' compensation law by the State Bar Board of Legal Specialization. Mr. Borah has served as vice-chair of the State Bar Workers' Compensation Law Advisory Commission and as chair of the Executive Committee of the Workers' Compensation Section of the State Bar. He is presently on the Board of Governors of the California Applicants' Attorneys Association.

ROBERT E. BUCH received his B.A. in 1969 and his M.S. in 1970 from the University of Southern California and his J.D. in 1973 from Loyola University School of Law. He is a partner in the firm of Seyfarth, Shaw, Fairweather & Geraldson, specializing in workers' compensation law. Mr. Buch is certified as a specialist in workers' compensation law by the State Bar Board of Legal Specialization. He is a former chairman of the Workers' Compensation Law Advisory Commission and is presently on the State Bar Board of Legal Specialization.

COLLEEN S. CASEY received her B.A. from the University of California, Berkeley, and her J.D. from Golden Gate University School of Law. She is a commissioner for the Workers' Compensation Appeals Board in San Francisco.

FREDERICK T. DIETRICH, JR., received his B.S. in 1970 from the University of San Francisco, his Master's of Industrial and Labor Relations in 1972 from Cornell University, and his J.D. in 1978 from San Francisco Law School. He is an assistant secretary and deputy commissioner for the Workers' Compensation Appeals Board. Mr. Dietrich is certified as a specialist in workers' compensation law by the State Bar Board of Legal Specialization.

HON. PAMELA W. FOUST received her B.A. in 1966 from the University of California, Los Angeles, and her J.D. from the University of West Los Angeles, where she graduated cum laude in 1978. Judge Foust is with the Workers' Compensation Appeals Board in Santa Monica.

RAYMOND E. FROST received his B.A. in 1972 from San Jose State University and his J.D. in 1977 from the University of La Verne College of Law. He is in private practice in Fremont, specializing in workers' compensation law. In addition, he serves regularly as a judge pro tem and as an arbitrator for the Alameda County Superior Court. Mr. Frost is certified as a specialist in workers' compensation law by the State Bar Board of Legal Specialization.

GLEN J. GROSSMAN received his B.A. in 1977 from State University College of New York at Geneseo and his J.D. in 1980 from the New England School of Law. He is a staff counsel for the State Compensation Insurance Fund in Salinas, specializing in workers' compensation defense. Mr. Grossman is a past member of the Executive Committee of the Workers' Compensation Section of the State Bar (1996–1999) and is certified as a specialist in workers' compensation law by the State Bar Board of Legal Specialization.

DENNIS J. HANNIGAN received his B.A. in 1968 from the University of California, Davis, and his J.D. in 1971 from the University of California, Hastings College of the Law. He is a secretary and deputy commissioner for the Workers' Compensation Appeals Board. Mr. Hannigan was co-author of the California Workers' Compensation Practice Update from 1992 through 1999.

SALLY M. HARMS attended University of California, Berkeley, and received her J.D. in 1986 from New College of California, School of Law. Ms. Harms, a partner in the San Francisco firm of Lieberman & Harms, specializes in workers' compensation, representing longshore and harbor workers. She is past chair of the Executive Committee of the Workers' Compensation Section of the State Bar and is certified as a specialist in workers' compensation law by the State Bar Board of Legal Specialization.

YALE I. JONES received his B.A. in 1963 from Stanford University and his J.D. in 1966 from the University of California, Los Angeles, School of Law. He is a partner in the San Francisco firm of Jones, Clifford, McDevitt & Johnson, specializing in workers' compensation law. Mr. Jones is the past chair of the Board of Legal Specialization of the State Bar and past chair of the State Bar Committee on Workers' Compensation (1985–1986). He is certified as a specialist in workers' compensation law by the State Bar Board of Legal Specialization and is a frequent speaker at seminars on workers' compensation law.

BARRY M. LESCH received his B.A. in 1965 from the University of Pennsylvania, his M.A. in 1971 from Indiana University, and his J.D. in 1975 from the University of California, Berkeley, School of Law. He is the managing partner with Laughlin, Falbo, Levy & Moresi in Sacramento, specializing in workers' compensation law. He is also the legal editor of the California Workers' Compensation Reporter. Mr. Lesch is certified as a specialist in workers' compensation law by the State Bar Board of Legal Specialization.

DEBORAH LIEBERMAN attended the Hebrew University of Jerusalem and received her J.D. in 1986 from New College of California, School of Law. She is a partner in the San Francisco firm of Lieberman & Harms, specializing in workers' compensation law. Ms. Lieberman is a current member of Executive Committee of the Workers' Compensation Section of the State Bar and a past member of the Workers' Compensation Advisory Commission to the California Board of Legal Specialization (1995–1998). She was a contributing editor for California Compensation Cases (1990–1994). Ms. Lieberman is certified as a specialist in workers' compensation law by the State Bar Board of Legal Specialization.

JAMES P. PETTIBONE received his B.A. in 1981 and his J.D. in 1987 from the University of San Francisco. He is a partner in the firm of Laughlin, Falbo, Levy & Moresi in Sacramento, specializing in workers' compensation law.

PAUL PEYRAT received his B.A. in 1955 and his J.D. in 1958 at the University of Minnesota. He was a legal editor for the third edition of California Workers' Compensation Practice and is the author of California Workers' Damages Practice and a contributing editor for the California Workers' Compensation Reporter.

FRANK D. RUSSO received his B.A. in 1973 from Yale University and his J.D. in 1976 from the University of California, Berkeley, School of Law. He is a partner in the firm of Russo, Uriarte & Carr in Oakland, specializing in workers' compensation law. Mr. Russo is a member and past president (1997–1998) of the California Applicants' Attorneys Association. He is a frequent lecturer at seminars on workers' compensation law and is certified as a specialist in workers' compensation law by the State Bar Board of Legal Specialization.

ANDREW K. SHAFFER received his B.A. in 1989 from Brown University and his J.D. in 1995 from Santa Clara University. He is an associate with the firm of Scher & Bassett specializing in workers' compensation and Social Security disability. He is certified as a specialist in workers' compensation law by the State Bar Board of Legal Specialization.

PATRICIA S. STEPHENS received her B.A. in 1977 from California State University, Dominguez Hills, and her J.D. in 1987 from the University of California, Hastings College of the Law. She is a senior judicial attorney, workers' compensation specialist, at the Court of Appeal, Second Appellate District, Los Angeles.

CHARLES LAWRENCE SWEZEY received his A.B. in 1943 from Cornell University and his LL.B. in 1948 from Stanford University. He was a member of the California Workers' Compensation Appeals Board from 1974 to 1975 and from 1979 until his retirement in 1988. Currently, he is a legal consultant for the Commission on Health and Safety and Workers' Compensation and a contributing editor for the California Workers' Compensation Reporter.

OnLAW System Requirements:
Desktop: Windows XP, 7 or 8, Mac OS 10.8
Mobile: iOS6, iOS7, Android 4.2
Firefox, Chrome, IE and Safari browsers

Note: OnLAW may work with some devices running older versions of these Operating Systems or Windows RT; however, functionality is not guaranteed.

Please see FAQs for more details.
Products specifications
PRACTICE AREA Employment Law
PRODUCT GROUP Publication
PRACTICE AREA Public Law
Products specifications
PRACTICE AREA Employment Law
PRODUCT GROUP Publication
PRACTICE AREA Public Law