July 27, 2018

WORKERS’ COMPENSATION OVERVIEW & UPDATE

§ 3.5.1
A. INTRODUCTION

The workers’ compensation system is intended to deliver relatively expeditious compensation to employees who suffer injury or death arising out of and in the course of their employment. For its part of this compensation bargain, the employer is immunized from a civil action in which the employee might obtain a much larger recovery.1 It is a mandatory, generally no-fault and self-executing system that provides medical care, temporary and permanent disability indemnity, and death benefits. Additionally, the employer is penalized for discriminating against injured workers, and for serious and willful misconduct. The law is to be liberally interpreted to protect employees who are injured in the course of their employment, and is administered statewide by judges assigned by the Workers’ Compensation Appeals Board (WCAB).2

In 1989 and 1993, reform legislation was enacted to reduce the litigation that had clogged the system, to eliminate fraud, to reduce medical legal costs, to institute an element of medical control, and to limit vocational rehabilitation abuses, while increasing benefits to injured workers. These reforms created a number of concurrently existing different tracks to follow, both substantively and procedurally, depending on the date of injury.

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The reform legislation of 1989 and 1993 did not have the desired effect of significantly reducing litigation. Instead, workers’ compensation litigation remained a terribly complex and expensive affair for employers and industrial carriers. The law also remained significantly tilted in the favor of injured workers, and medical costs continued to skyrocket. Just prior to his forced departure from office, then Governor Davis followed through on one of his last-ditch promises to reform the workers’ compensation system. What followed were Senate Bill 228 and Assembly Bill 227, discussed in detail below. While these bills were a step towards reform, they were less than entirely effective in reducing litigation and workers’ compensation related costs for employers and carriers.

However, shortly after Governor Schwarzenegger took office, the legislature enacted more substantive, meaningful workers’ compensation reforms with Senate Bill (S.B.) 899.

Critically, S.B. 899 provides California employers the right to retake control of medical treatment by establishing a medical provider network (MPN). This reform was truly fundamental, and may prove the most significant, employer-friendly reform to the workers’ compensation system to date. As a result of S.B. 899, the workers’ compensation landscape became, for the first time in decades, significantly more positive for employers.

§ 3.5.2
B. INSURANCE

Workers’ compensation insurance is mandatory. The insurance may be obtained from an insurance company, or by obtaining a certificate of self-insurance. Only the State of California may lawfully be uninsured.3 An employer may elect to cover employees who are otherwise not covered.4 All policies are required to provide all the benefits mandated by law.

Certain employers engaged in construction work may enter into a collective bargaining agreement providing for a private workers’ compensation system, but that system must provide essentially the same benefits as the public system.5 Starting on January 1, 2012, nonexempt, nonunionized employers must provide in writing to new-hire employees the name, address, and telephone number of the employer’s workers’ compensation insurance carrier.6 Through the State Compensation Insurance Fund (SCIF), a public enterprise fund created to provide workers’ compensation insurance7 self-employed persons may insure themselves.8

Being willfully uninsured is a crime that carries with it significant penalties,9 including an order that business operations cease until insurance is acquired.10 Failure to obey such a stop order is also a misdemeanor.11 Other penalties include an increase of 10% of the compensation awarded,12 attorneys’ fees for the employee,13 a penalty of $1,000 per employee employed at the time of the stop order, and a penalty of $10,000 per employee, up to $100,000, in cases where a compensable injury is found.

The Uninsured Employers Fund exists to provide benefits to injured employees of uninsured employers, but it is also empowered to sue the uninsured employer to recoup the payments it makes.14 If an employer is willfully uninsured, the injured employee may sue for damages in civil court, and it is presumed that the injury arose out of the negligence of the employer. In such a case, the employee’s negligence is not a defense.15

Thus, employers should make a diligent effort to obtain and keep their workers’ compensation insurance in force, for chance places a surprising number of injuries in even short lapses between expiration and reacquisition of a policy.

§ 3.5.2(a)
Extent of Insurance Coverage

Even though, as will be seen below, the courts have interpreted workers’ compensation insurance to cover many injuries that, on their face, appear to have no relation to employment, the scope of a workers’ compensation policy and an insurer’s duty under it continue to be questioned.

One court of appeal ruled that a workers’ compensation insurer had a duty to defend an employer in a civil court in which an employee asserted that he had been wrongfully forced to quit by emotional and physical distress at work. Although this constructive discharge claim is not covered by workers’ compensation, the court reasoned that if the employee were completely unsuccessful in civil court, all he would be left with would be a workers’ compensation claim.16 However, the California Supreme Court disapproved that rationale in La Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co.,17 saying that no reasonable construction of a workers’ compensation policy provides coverage for a wrongful termination lawsuit in civil court.

Nevertheless, the question of the scope of a policy continues to arise as an issue. In General Star Indemnity Co. v. Schools Excess Liability Fund,18 the insurer was deemed to have noduty to defend or indemnify the insured for acts excluded from a policy’s coverage; while in Martinez v. State Compensation Insurance Fund,19 the insurer had no duty to defend against a federal cause of action brought under the Migrant and Seasonal Agricultural Workers’ Protection Act, because the insured’s policy by its express terms covered only liability arising under California law.

§ 3.5.2(b)
Other Insurance

The standard workers’ compensation policy also provides for Employers’ Liability Insurance, also known as Coverage B. Traditionally, it was intended to serve as a gap filler, providing protection to the employer in situations where the employee has a right to sue in civil court despite the provisions of the workers’ compensation law, or where the employee is not subject to the workers’ compensation law.20 It is not a substitute for a comprehensive general liability policy. This coverage has become less and less important as the courts have expanded the boundaries of what is considered to be a workers’ compensation case.

§ 3.5.2(c)
Workers’ Compensation Coverage by Federally Recognized Indian Tribes

Federally recognized Indian tribes have begun providing businesses in California an alternative to workers’ compensation coverage. Generally, the WCAB does not have jurisdiction over federally recognized Indian tribes for the purposes of enforcing workers’ compensation laws.21 Case law on this issue focuses on injuries to workers on Indian grounds being regulated solely by the Indian tribes based on the principle of sovereign immunity.

To get around California’s workers’ compensation laws, tribally-owned staffing companies hire an employer’s workforce and leases it back to the employer. Under this arrangement, the staffing companies claim the workers are employees of the Indian tribe and not subject to California’s workers’ compensation laws due to the tribe’s sovereign immunity. This arrangement, however, has fallen under investigation by both the California Department of Insurance and the Department of Industrial Relations. In fact, the state has actually issued stop orders or shutdowns of several businesses in the state that were relying upon this arrangement. These stop orders were lifted once traditional workers’ compensation coverage was purchased. The state takes the position that the sovereign immunity of the Indian tribes does not extend beyond its reservations. One of these tribes has filed a lawsuit against the California Insurance Commissioner in an effort to continue to provide this alternative to workers’ compensation.

California requires all employers to hold workers’ compensation insurance. Although it is legal to hire and lease back employees, this arrangement does not necessarily insulate employers from workers’ compensation claims. Under this leasing arrangement, the leasing company and the employer can be considered joint or coemployers. Under California law, an  injured worker can proceed directly against any coemployer under a joint and several liability theory. Thus, if the leasing company is found not to have the requisite insurance coverage, the employer will be liable for the workers’ compensation costs and can incur penalties for not being properly insured.

§ 3.5.2(d)
Antifraud Provisions

Making a knowingly false statement to obtain or deny compensation benefits is a felony.22 A statement to this effect must appear prominently on WCAB documents.23 Injured workers are barred from receiving or keeping any compensation owed as a result of such statements.24 Most fraud cases have involved injured workers. A successful fraud prosecution requires clear, affirmative misrepresentations, preferably under oath, not just vague memories or statements subject to interpretation. With the passage of S.B. 228 and A.B. 227, the California Department of Insurance has stated that it will pursue and prosecute workers’ compensation fraud much more aggressively.

Employees, insurers, employers, and the attorneys for each party are required to sign a statement, under penalty of perjury, that they have not violated certain self-referral provisions, nor offered or taken anything of value in return for referral of cases.25 However, this requirement has historically been more of a paper burden than a basis for enforcement. California Labor Code section 139.3 prohibits referral of an injured worker to a person with whom a physician has a financial interest, with a number of exceptions. This provision has had some impact on medical-legal advisers. Some medical-legal mills have been put out of business.

§ 3.5.3
C. EMPLOYEES

Not every worker is covered by workers’ compensation. The California Labor Code defines who is and is not an employee for workers’ compensation purposes, and who is an employee but nevertheless is not covered by the workers’ compensation laws. Generally, anyone in the service of another is presumed to be an employee, even aliens, minors, and prisoners.26 Independent contractors are excluded,27 as are a number of (but not all) volunteers.28 An independent contractor who does not have the required contractor’s license is, as a matter of law, an employee of the person who hired him, as are any employees of the unlicensed contractor.29

California Labor Code sections 3351(d) and 3352(h) together include as employees anyone employed by the owner of a residence whose duties are personal or incidental to ownership, maintenance, or use of the residence, but only if the person has worked more than 52 hours and earned more than $100 during the 90 calendar days before the injury. Thus, a roofer was a residential employee of the owners of an apartment building under section 3351(d), but was an excluded employee under section 3352(h), because he had not worked for 52 hours or more in the 90 days immediately preceding the injury, nor had he earned more than $100.30 The existence of an employment relationship usually is relatively clear, but odd situations can arise. For example, a decedent was found to be an employee of a business owned by himself and two brothers on the date he was shot and killed by one brother on defendant’s premises.31 Generally, the WCAB resolves doubts in favor of covered employment.

§ 3.5.4
D. INJURIES

An injury for workers’ compensation purposes is any specific or cumulative trauma resulting in disability (or death) or need for medical treatment.32 The injury may be physical or mental, and may include the lighting up of a preexisting and previously dormant or asymptomatic nonindustrial disease or condition. Injury includes certain adverse reactions to prophylactic care furnished by an employer to a health care worker to prevent blood-borne diseases, including hepatitis and HIV infections, but does not apply to a worker claiming HIV exposure who tests positive for HIV within 48 hours after the claimed exposure.33 The criteria for proving a psychiatric injury are more stringent and complex than for a physical injury, and defenses include an insufficient level of industrial causation, that the injury was a result of a lawful, nondiscriminatory, good faith personnel action, as well as employment for less than six months.34 Both the criteria and defenses vary, depending on the date of the psychiatric injury.

§ 3.5.4(a)
Injuries Arising out of & in the Course of Employment

Only industrial injuries are covered by workers’ compensation insurance. Industrial injuries are those “arising out of and occurring in the course of employment (AOE/COE).” This dual requirement is the cornerstone of workers’ compensation, and is more specifically stated in California Labor Code sections 3600 and 3601. Those two sections together provide that when the conditions of compensation concur, workers’ compensation is the exclusive remedy of an injured employee. The conditions of compensation are:

• Both the employer and employee are subject to the compensation law.35
• At the time of the injury, the employee is performing service growing out of and incidental to the employment, and is acting within the course of the employment.36
• The injury is proximately caused by the employment.37
• The injury is not caused by the intoxication of the employee.38
• __________The injury is not intentionally self-inflicted.
• The employee has not willfully and deliberately caused his or her own death.
• The injured employee was not the initial physical aggressor in an altercation.
• The injury was not caused by the commission of a felony of which the employee has been convicted.
• The injury did not arise from participation in any off-duty recreational, social, or athletic activity, except where the activity is a reasonably expected part of the employment.
• The claim of injury is filed before termination or layoff, with certain exceptions.
• Generally, an injury on the employer’s premises during working hours is compensable, while an injury off the employer’s premises or outside working hours may or may not be compensable.  An injury while going to or coming from work during an ordinary commute is not compensable,39 but so many exceptions have been created that they almost swallow the rule.

The WCAB and the courts have liberally interpreted the ten statutory provisions above. For example, an injury from a fall to the employer’s floor caused by an idiopathic seizure is industrial.40 So are: the murder of a spouse if the employment contributed somehow to the circumstances of the murder,41 the death of a traveling executive from a fire started by a cigarette while in bed with a “woman other than his wife,”42 aggravation of congenital spina bifida by a minor fall and disability resulting from treatment of that condition,43 being hit by an automobile when putting oil in a car parked on a public street before work began,44 and drowning while windsurfing at a school picnic.45

An injury while performing authorized duties in an unauthorized, even criminal, fashion is also compensable,46 but an injury while performing unauthorized duties may not be. Even though the California Labor Code states that intentionally self-inflicted injuries are not compensable, in at least one case a WCAB upheld a decision that an employee’s suicide was industrial by stating that there was evidence of industrial causation that so overwhelmed the employee that he was unable to resist the strong impulse to kill himself.47

Other cases illustrating the broad scope of the AOE/COE requirement include: a bank executive injured while playing golf with present and prospective clients of the bank at the client’s expense and at the client’s country club;48 a worker injured by the practical joke of a coworker (where a company supervisor testified that pranks and practical jokes were condoned and encouraged by management to improve employee morale);49 an HIV condition allegedly caused by employment even though proof of industrial causation was not certain, and the applicant’s blood sample before the alleged contamination appeared HIV-positive.50

Compensable injuries may even result from the negligence of an employer’s examining physician during an evaluation,51 or from malpractice during mistakenly authorized treatment of a nonindustrial condition.52

Whereas claims of injury filed after termination of employment are generally not compensable, the post-termination defense has been weakened by the courts since it was first enacted. A California appellate court has held that the defense did not apply when an employee resigned, since the purpose of the statute was to deter disgruntled employees from filing retaliatory claims.53

As with insurance coverage, litigation continues to challenge the traditional boundaries of what constitutes an industrial injury.

§ 3.5.4(b)
Injuries Presumed Industrial

Certain public safety officers are favored by a presumption that certain injuries were caused by their employment. Generally, law enforcement officers and firefighters may be entitled to a presumption that heart trouble, pneumonia, hernias, tuberculosis, and cancer are a result of their employment.54 The presumption may last for up to five years after the last date the employee actually works. With regard to the cancer presumption, if a designated safety officer develops cancer while in service and demonstrates that he or she was exposed on the job to a known carcinogen as defined by the International Agency for Research on Cancer, the cancer will be presumed to be industrially related. However, the employer may rebut the presumption by evidence that the carcinogen to which the employee was exposed is not linked to the disabling cancer.55

§ 3.5.4(c)
Procedural Presumption of Compensability

Employers should be alert to the ability of an injured employee to satisfy the requirement that an injury arise out of and in the course of employment by relying on nothing more than a simple procedural presumption that a claimed injury is compensable. This presumption arises if a claim is not denied within 90 days of the filing of a claim form with the employer.56 The WCAB and the courts have handed down quite a number of decisions in this area. In some cases, employers’ fears of unjustified adverse consequences have fully manifested themselves, while in others, some loopholes have been poked in the presumption wall. Since the law is developing through litigation, a brief review of some of the cases is necessary. A panoply of serious medical conditions that by all the medical evidence were considered not industrial were nevertheless found to be compensable based solely on the presumption in section 5402.57 The presumption applies against a carrier, even though the carrier is not aware of the claim, so long as the employer knows of the claim.58 An injury is presumptively compensable, even though the injured worker does not file a claim form as required by the statute, if the employer is aware of the injury and does not give the worker a claim form.59

As part of the presumption of compensability, section 5402 bars the use of evidence that could have been obtained within those 90 days with the exercise of due diligence.60 This provision was invoked in Finese v. American Motorists61 to bar evidence of a nonindustrial cause of death, resulting in an award of an industrial death benefit. Evidence obtained after the expiration of the 90-day period may be admitted, though, if the employer shows due diligence in attempting to obtain it.62

The presumption of compensability is rebuttable. It may be rebutted by an injured worker’s own medical legal report;63 by an injured worker’s own incredible testimony,64 and by evidence of prior injuries that the injured worker had concealed 65 Many critical cases have found technical ways to escape the presumption. Reynolds v. Lucky Stores, Inc.,66 decided that the 90-day period in section 5402 is extended by five days to allow for mailing, and Frausto v. Workers’ Compensation Appeals Board,67 did not apply the presumption when the 90th day fell on a Sunday and the denial issued on the following Monday. The denial or rejection of a claim need not be in writing,68 and need not even be communicated to the injured employee before the 90 days have elapsed, so long as the decision to reject was made before then.69

The presumption also does not preempt other technical defenses, such as lack of employment of the injured worker,70 or the statute of limitations.71 Despite some successful defenses to the presumption, given the downside exposure of losing a potentially expensive case on a technicality when it could have been won with timely discovered evidence, all employers would be well advised to promptly report claims to their carriers or risk managers, to promptly investigate and cooperate fully in any investigation, and to ensure that evidence that can be obtained in the first 90 days after the filing of a claim form actually is obtained within that time.

§ 3.5.4(d)
Exclusive Remedy

When there is an industrial injury, workers’ compensation is the exclusive remedy for the injured employee against the employer and coworkers, with certain limited exceptions.72 This exclusive remedy provision prohibits the employee from suing civilly unless one of the exceptions exists. The exclusive remedy provisions of Workers’ Compensation Act are part of the compensation bargain noted above and immunize an employer, insurer, and adjusting agent from lawsuits by injured workers and even by spouses.73 A parent corporation was also considered immune from a civil suit brought by the heirs of employees of a subsidiary corporation, based on an alter ego theory.74 With regard to emotional distress claims, after a number of conflicting cases, the California Supreme Court finally held that the exclusive remedy of workers’ compensation prevents an employee’s lawsuit based on an employer’s intentional or negligent infliction of emotional distress, even in the absence of any accompanying physical injury.75

§ 3.5.4(e)
Subrogation

If a third party causes the employee’s injury, the employer may bring or participate in a civil suit brought by the employee against that third party. The employer (or insurer) is entitled to recover from the third party the amount of compensation it paid to the employee on account of the injury. The employer also is entitled to a credit against its workers’ compensation liability at the WCAB in the amount of the employee’s net recovery.76 If the employer was negligent, however, the employer’s recovery or credit may be diminished or eliminated.

§ 3.5.4(f)
Benefits

When an industrial injury is found or admitted to have occurred, the injured worker or his or her dependents is entitled to receive five distinct type of benefits.

§ 3.5.4(f)(i)
Temporary Disability

Temporary disability indemnity is designed as a wage replacement, and equals two-thirds of an employee’s average weekly earnings. Temporary disability may be total or partial.77 If it is total (i.e., the employee cannot work at all), the entire prescribed benefit is paid to the employee. If it is partial (i.e., the employee can work part time at some kind of job), payment is made on a wage-loss basis.78

There are minimum and maximum rates set by law, and the actual rate varies, depending on the date of injury.79 The market value of board, lodging, fuel, and other advantages of employment are included in the calculation of average weekly earnings.80 Whenever temporary disability indemnity is paid more than two years after the date of injury, it is paid at the maximum rate then in effect, provided that the injured worker’s average weekly wages, including raises he would have received had he not been injured, justify the higher amount.81 One California appellate court held that an injured worker is not entitled to temporary disability benefits after her retirement date, when she had indicated an intent to retire from all work, and thus had zero earning capacity after the retirement date.82

The average weekly wage of volunteer firefighters, reserve peace officers and persons assisting peace officers in active law enforcement, and any firefighter or peace officer who suffers an injury after termination of active service that is presumed compensable (see above) is taken at the maximum for both temporary and permanent disability benefits.83 Public safety officers (law enforcement officers and firefighters) are entitled to full salary in lieu of temporary disability benefits or vocational rehabilitation maintenance allowance benefits for up to one year. These benefits may end before one year if the employee retires on a permanent disability pension.84

Increases in temporary disability after January 1, 2006, are equal to the percentage increase in the state average weekly wage as compared to the prior year. The state average weekly rate means the average weekly wage paid by employers to employees covered by the unemployment insurance as reported by the U.S. Department of Labor for California for the 12 months ending March 31 of the calendar year preceding the year in which the injury occurred. The maximum temporary disability rate for 2012 injuries is $1,010.57, and the minimum rate is $151.57.

The law limits an employee to 104 weeks of total temporary disability within a period of two years from the date of commencement of temporary disability payment; five years from the date of injury.85 The two-year period commences upon the first payment of temporary disability. Where independent injuries result in concurrent periods of temporary disability, the 104-week limitation also runs concurrently.86 The 104-week limitation does not apply to specifically designated conditions that are of a more serious and long term nature including Hepatitis B and C, HIV, amputations, and/or pulmonary disease.87

§ 3.5.4(f)(ii)
Permanent Disability

Temporary disability benefits end when an employee’s condition is declared medically permanent and stationary (P&S). When an injured employee’s condition is P&S, he or she has reached maximum medical improvement, though continuing medical care may still be necessary. At this point, the employee may be entitled to permanent disability indemnity. Prior to 2004, permanent disability status was determined following an evaluation of several factors, including the nature of the physical injury and an employee’s diminished capacity to compete in the open labor market. Thus, evaluations of permanent disability status did not necessarily consider an employee’s ability to perform the duties of his or her former job. Likewise, there was no consideration given for lost earning capacity when an employee was able to return to his or her former occupation or to employment at or near his or her former salary.

For injuries occurring after January 1, 2005, permanent disability compensates an employee for his or her loss of earning capacity. The permanent disability for these injuries is first calculated as impairment under the American Medical Association Guidelines for the Evaluation of Permanent Impairment, 5th edition (“AMA Guides”). Similar to a P&S finding, the AMA Guides looks to whether the injured employee’s condition has reached maximum medical improvement (MMI). Once MMI status is reached, subjective and objective factors of disability are described by one or more examining physicians according to the AMA Guides, as whole person impairment (WPI). This WPI is then translated into standard percentage disabilities established by the state or by practice. The standard disability is then modified for age and occupation by the parties or by rating specialists using a Schedule for Rating Permanent Disabilities, published by the state. The discussion below is based upon the rating guidelines that were in effect on January 1, 2005, and is subject to any later issued and updated guidelines.

Permanent partial disabilities are measured in percentages and quarters of percentages. Each fraction equates to a certain number of weeks of permanent disability indemnity. The value of the indemnity paid per week is two-thirds of the injured worker’s average weekly earnings, with minimums and maximums, as with temporary disability. The exact value paid each week varies with the date of injury and the percentage of disability.88 The California Department of Insurance has also commented that it may seek reforms of permanent disability in the future to increase the dollar value of higher percentages of permanent disability.

If an injured worker’s permanent partial disability is greater than 70%, the worker is entitled to a life pension. The pension is calculated based on the percentage of permanent disability and a maximum average weekly earning rate set by law. The pension is usually much lower than the regular permanent disability indemnity.89

Employers are not liable for preexisting disability but only for the portion of the disability that is due to the industrial injury or disease.90 Nor are employers liable for disability resulting from a subsequent noncompensable injury that is unrelated to the previous industrial injury.91 This relief from liability is known as apportionment, and is the subject of much litigation.

Apportionment

California permits apportionment to permanent disability by causation and requires the reporting physician to comment upon causation.92 A preexisting injury, illness or pathology that actually causes some of the permanent impairment can act to reduce the permanent disability award given to an industrially injured worker.

Furthermore, a previous workers’ compensation disability award, to the same part of the body, or resulting in overlapping disability, will be conclusively presumed to constitute a preexisting disabling condition for apportionment purposes.93 Several decisions have sought to interpret and clarify the somewhat vague statutory rules on apportionment. In Escobedo v. Marshalls, CNA Insurance Co., the WCAB opined that California Labor Code section 4663 applied to all cases that were pending as of April 19, 2004.94 The WCAB also clarified that the employer is only liable for the percentage of disability directly caused by the industrial injury. However, the WCAB also found that, in order for apportionment to apply to nonindustrial pathology, there must be substantial medical evidence showing that such pathology caused permanent disability. In Kleeman v. Workers’ Compensation Appeals Board, the court held that the apportionment statutes enacted on April 19, 2004 took effect immediately and applied to all cases pending as of that date. The court reasoned that, unless otherwise stated, the laws must be given effect prospectively from the date of enactment.95

The California Supreme Court concluded in Fuentes v. Workers’ Compensation Appeals Board that employers are charged only with that portion of permanent disability directly caused by the current injury.96 As a result, in Benson v. Permanente Medical Group, the WCAB held that a combined award of permanent disability in successive injury cases (i.e., the Wilkinson rule) was not consistent with the requirement that apportionment be based on causation.97 Instead, the WCAB must determine and apportion to the cause of disability for each industrial injury with consideration given to all potential causes of disability; whether from a current industrial injury, a prior or subsequent industrial injury, or a prior or subsequent nonindustrial injury or condition.

If an employee is permanently and totally disabled, he or she receives permanent disability benefits for life at the applicable temporary disability rate.98 Prior to S.B. 899, an employee could be found to be permanently and totally disabled if, as a result of the injury, he or she is unable to be vocationally rehabilitated.99 However, case law now makes such claims more difficult.100 Preexisting nonindustrial handicaps, (such as lack of education or inability to speak English), are not the responsibility of the employer,101 and will not produce a 100% disability. Injuries occurring on or after January 1, 2005 are all subject to the 2005 permanent disability schedule. Injuries occurring before January 1, 2005 may also be subject to the 2005 permanent disability schedule.

The Fourth Appellate District found that if there is no medical report issued before 2005 that contains factors of permanent disability and finds the injured worker permanent and stationary, then the 2005 permanent disability schedule applies.102 There must be a comprehensive medical-legal report or report of a treating physician that indicates the existence of a permanent disability.103

However, several California appellate courts have held that the report need not state that the injured worker’s condition has reached “permanent and stationary status” to indicate the existence of a permanent disability.104 On February 3, 2009, the WCAB (or “Board”) handed down two en banc decisions:

• Ogilvie v. City & County of San Francisco (Ogilvie I);105 and
• Almaraz v. Environmental Recovery Services106 and Guzman v. Milpitas UnifiedSchool District107 (combined as Almaraz/Guzman I).

The Board held that:

1. the diminished future earning capacity (DFEC) portion of the Schedule for Rating Permanent Disabilities (“2005 Schedule”) is prima facie evidence of an injured employee’s percentage of permanent disability and is rebuttable;
2. the DFEC portion of the 2005 Schedule ordinarily is not rebutted by establishing the percentage to which an injured employee’s future earning capacity has been diminished;
3. the DFEC portion of the 2005 Schedule is not rebutted by taking two-thirds of the injured employee’s estimated diminished future earnings, and then comparing the resulting sum to the permanent disability money chart to approximate a corresponding permanent disability rating; and
4. the DFEC portion of the 2005 Schedule may be rebutted in a manner consistent with Labor Code section 4660. On September 9, 2009, the Board affirmed and clarified its en banc decisions in Ogilvie I and Almaraz/Guzman I. In Almaraz/Guzman II, in a joint en banc decision after reconsideration, the WCAB clarified its original holding, finding that:

1. the 2005 permanent disability rating schedule is rebuttable;
2. the burden of rebutting the schedule is on the party disputing the rating;
3. one method of rebutting the schedules is to challenge one of the components of the schedule (i.e., a worker’s whole person impairment (WPI) under the AMA Guides); and
4. when determining the worker’s WPI, it is not permissible to go outside of the AMA Guides, but the physician may use any chapter, table or method in the AMA Guides that “most accurately reflects the injured employee’s impairment.”108

Significantly, in the holding for Almaraz/Guzman II, the WCAB rejected the use of any materials outside of the AMA Guides as the basis for rebutting the 2005 Schedule.109 The earlier February 3, 2009, decision had allowed for the use of other guides, treatises, and publications to rebut the schedule, including medical and nonmedical information on whether the injury impairs the performance of a job, as well as vocational specialists’ opinions. A physician may now use only the chapters, tables or methods within the AMA Guides to assess the worker’s impairment in rebutting the WPI. The Board found this to be consistent with the mandate of Labor Code section 4660(d) that the schedule is to promote “consistency,  uniformity and objectivity.”110

In Almaraz/Guzman II the WCAB also rejected its previously established standard of “inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability” to rebut a WPI. The WCAB firmly rejected this standard in favor of allowing a physician to use any chapter, table or method of the AMA that “most accurately reflects the injured employee’s impairment.”111 The physician is still required to provide a clear, accurate and complete report as required by the AMA Guides, and his or her opinion on the WPI must constitute substantial evidence upon which the WCAB may rely.112

Finally, the Board in Almaraz/Guzman II outlined the procedure to dispute an injured worker’s WPI. Such dispute is a question of fact to be determined by an Administrative Law Judge, and it is the WCAB that is the ultimate trier of fact on medical issues.113 After a treating physician or medical legal evaluator issues an opinion on the WPI, any party may seek to challenge that opinion through rebuttal evidence.114

On September 9, 2009, the Board also affirmed and clarified its en banc decisions in Ogilvie I. In Ogilvie II, the Board explains the procedure one must use to rebut the standard DFEC calculations outlined in the 2005 schedule:115

• First, a party must obtain the applicant’s wage data and the wage data of “similarly situated employees.”116
• Second, the party determines what percentage of the applicant’s earning capacity he or she has lost.117
• Third, the applicant compares the percentage of lost wages to the percentage the applicant’s WPI and obtains a ratio.118
• Finally, the party compares that ratio to the 2005 schedule’s DFEC table, and either uses the table in the schedule, or uses a formula to find the new DFEC adjustment factor.119 This new adjustment factor may in some cases, especially those where the applicant has a relatively low WPI and has lost most or all of his or her ability to earn wages, significantly increase the applicant’s permanent disability rating.

Ogilvie II offers employers a few methods to contest a permanent disability increase. The Board recognizes that “it may be difficult” for a judge to assess an applicant’s actual earning capacity in a case in which the applicant has been Temporarily Totally Disabled from the date of injury until shortly before the permanent and stationary or maximum medical improvement report upon which a case is being settled.120 Under those circumstances, the standard 2005 schedule DFEC adjustment factor can be used initially, then, should the applicant fail to return to the workforce, the applicant may file a petition to reopen challenging the original adjustment factor.

In the most recent twist, on July 29, 2011, California’s First District Court of Appeal reversed Ogilvie II, sending the case back to the WCAB for additional review of the evidence.121 The First District Court of Appeals clarified the showing that is required by an injured worker who contests his or her presumptive scheduled percentage of permanent disability on the basis that the worker’s actual future earning capacity is more diminished than reflected in the 2005 Schedule.122 To rebut application of the 2005 Schedule, an injured worker must demonstrate one of the following: (1) that a factual error in the calculation of a factor in the rating formula or application of the formula exists; (2) that the omission of medical complications aggravating the employee’s disability in preparation of the rating schedule; or (3) that due to the industrial injury the employee is not amenable to rehabilitation and therefore has suffered a greater loss of future earning capacity than the loss indicated in the  schedule rating.123 No other grounds for rebuttal will be considered.

§ 3.5.4(g)
Medical Treatment

Subject to the treatment guidelines, an injured employee is entitled to all medical, surgical, chiropractic, and hospital treatment, including nursing, medicine, medical and surgical supplies, crutches and apparatus, including orthotic and prosthetic devices that are reasonably required to cure or relieve the effects of the industrial injury.124 This entitlement may extend to what is essentially a lifetime award of medical care related to the injury. Disputes frequently arise over what form or duration of treatment is required. For example, employers often contest a prescription for a hot tub or swimming pool, lifetime health-club memberships, and extended chiropractic care. The need for surgery is also frequently challenged.

In an effort to reduce medical costs, California limits chiropractic and physical therapy treatments to 24 visits of each type for the life of the entire claim for injuries occurring on or after January 1, 2004.125 The cap does not apply if an insurance carrier or self-insured employer agrees to additional visits in writing.

All providers are required to make greater use of generic drugs.126 Medical bills must also be paid within 45 working days from billing instead of the previous 60-day time limit. Failure to pay billing on time can result in a late payment penalty of 15% of the charge.127 If an employer or its insurer disputes the need for a particular medical treatment recommended by the employee’s physician, they must first use the utilization review process rather than the procedures under Labor Code section 4062 providing for the selection of an Agreed Medical Examiner or Panel Qualified Medical Examiner.128 The utilization review process may be implemented through the industrial carrier.129 The plan must also be in writing and consistent with the schedule filed by the Administrative Director.130 All utilization review must be performed by a licensed physician who is competent to evaluate the specific clinical issues involved.131

Employers should keep in mind that, while there sometimes may appear to be an abuse of medical care, if care is unreasonably refused or delayed, the WCAB may assess against the employer a penalty of 25% of the unreasonably delayed amount up to a maximum of $10,000.132 Disputes over medical care, therefore, should be well grounded in sound medical opinion. There is a $100 filing fee for any liens of a medical provider excluding Medi-Cal, VA and public hospitals. If the WCAB finds that the employer is responsible for any part of a medical lien, the employer can be liable for the filing fees associated with that lien.

An employer is required to commence providing treatment within one day of receipt of the claim form and is required to pay for all treatment up to a maximum of $10,000 until liability for the claim has been accepted or denied. These provisions are designed to ensure that the employee receives appropriate medical care during this initial investigation period and also to encourage employers and carriers to act quickly to accept or deny a claim of industrial injury.

Accordingly, it behooves carriers and employers to investigate claims as quickly as possible to identify those claims that can be legitimately denied before incurring unnecessary medical benefits payments.

This requirement represents a positive opportunity for employers. Previously, carriers and employers that delayed payment of any benefits (including medical care) were more likely to lose control of medical care to the employee because, by the time the claim was accepted or denied, the employee would have transferred care to a physician of his or her own choosing. Once a claim was transferred to another physician, it could not be easily transferred to the employer’s control, as the employee would already have embarked upon a course of medical treatment. With the requirement that the carrier or employer be responsible for the medical care just after receiving the claim form, they will be required to carefully monitor the treatment early on, thus, less likely that claims will slip from the employer’s control at the outset.

California employers are entitled to designate a medical provider network (MPN), which is a selection of doctors and other healthcare providers from which all its workers’ compensation claimants are to receive medical treatment.133 Creation of an MPN is optional. Employers can adopt the MPN that has been created by their insurance carrier or select the medical providers that will comprise its MPN. The potential advantages to creating an MPN for California employers, irrespective of their size, are many. With medical expenses accounting for more than 50% of the total cost of a workers’ compensation case on average, the most significant benefit is economic. The more workers’ compensation claims an employer faces, the greater the benefit. For employers with large deductibles, or those faced with recurrent workers’ compensation abuse, implementation of a well-thought-out provider network may provide direct, immediate relief. Additional potential benefits to employers who select their own medical providers include: lower medical treatment costs, increased control over return to work issues, elimination of medical provider abuse, and more reasonable disability awards.

The consequences of failing to create an MPN can be significant. If an employer does not enact an MPN, then workers and their attorneys may select their own doctors and predesignate treaters for any industrial injuries. It should be noted that, even if an employer has an MPN, employees may use predesignation as a means to avoid being subject to it if they predesignate the primary treating physician in writing before any industrial injury occurs. The predesignated physician must not only agree to the predesignation but must have previously directed the medical treatment of the employee and retained the employee’s medical records, including a medical history.134

For California employers that have established an MPN, medical treatment must be obtained within the network. The law provides an employee the opportunity to seek second and third opinions but must do so within the employers’ preselected network. To date, the majority of provider networks, at least for insured employers, have been created by insurance carriers. Unfortunately, in some instances, larger carriers have flatly refused to allow policyholders to determine the members of the provider network. This will likely be an ongoing source of tension between certain carriers and their insured until the legislature intervenes. It should also be noted that an employee who has properly predesignated a treating physician can avoid being subject to the employer’s MPN.

§ 3.5.4(g)(i)
Vocational Rehabilitation

Assembly Bill (A.B.) 227 provided for the elimination of California Labor Code section 139.5, which governed in large part the administration of vocational rehabilitation benefits. Accordingly, as of January 1, 2009, the Rehabilitation Unit within the WCAB was eliminated. In Lawrence Weiner v. Ralph’s Co., the WCAB considered whether it had jurisdiction to award vocational rehabilitation benefits after January 1, 2009.135 The Board held that:

1. the repeal of section 139.5 terminated any rights to vocational rehabilitation benefits or services pursuant to orders or awards that were not final before January 1, 2009;
2. a saving clause was not adopted to protect vocational rehabilitation rights in cases still pending on or after January 1, 2009;
3. the vocational rehabilitation statutes that were repealed in 2003 do not continue to function as “ghost statutes” on or after January 1, 2009;
4. effective January 1, 2009, the WCAB lost jurisdiction over nonvested and inchoate vocational rehabilitation claims, but the WCAB continues to have jurisdiction under Labor Code sections 5502(b)(3) and 5803 to enforce or terminate vested rights; and
5. subject matter jurisdiction over nonvested and inchoate vocational rehabilitation claims cannot be conferred by waiver, estoppel, stipulation, or consent.136

Vocational rehabilitation benefits had consisted of indemnity payments, professional counseling services, and a rehabilitation program that could entail return to modified or alternative work with the same employer, on-the-job training, direct placement, formal schooling or training, self-employment, or a combination of options.137 An employee became medically eligible for rehabilitation when he or she was precluded, or was likely to be precluded, by the effects of the industrial injury from returning to his or her usual occupation, or the occupation he or she was engaged in at the time of the injury.138 Furthermore, for injuries that occurred on or after January 1, 1994, and before January 1, 2004, a cap of $16,000, including up to $4,500 in counseling fees, applied.

Although vocational rehabilitation no longer exists, injured workers are still eligible for the Supplemental Job Displacement Benefit (SJDB) discussed previously.139 An employer can avoid liability for the SJDB if within 30 days of termination of temporary disability the employer offers regular or modified work, lasting at least 12 months, paying within 15% of the wages paid to the employee at the time of the injury and within a reasonable commuting distance of the employee’s residence at the time of the injury.140 The analysis for liability under the SJDB should not be mistaken for any separate duty the employer has under the federal Americans with Disabilities Act or California’s Fair Employment and Housing Act to determine if an employee’s disability or permanent work restrictions can be reasonably accommodated.

§ 3.5.4(g)(ii)
Death Benefits

If an employee dies from or as a result of an industrial injury or disease, the employee’s dependents (not necessarily heirs) at the time of the injury (not death, unless injury and death are virtually simultaneous) are entitled to a death benefit. An industrial accident, specific or cumulative trauma, or exposure need only have hastened an employee’s death, and need not be the principal cause, to entitle the dependents to a death benefit.

The amount of the benefit varies with the number of dependents and the extent of their dependency, as well as with the date of injury. California Labor Code section 4702(b) also provides that the payments to dependents shall be made in the same manner and amounts as temporary disability indemnity payments would have been made to the employee. Since two years after the date of injury, temporary disability indemnity may increase to the maximum rate applicable, it appears that the death benefits may also.

§ 3.5.4(h)
Sealing Documents

Electronic Adjudication Management System (EAMS) Regulation, California Code of Regulations title 8, section 10272, provides the procedure a presiding workers’ compensation administrative law judge (PWCJ) should follow when sealing the record in order to guarantee an injured worker’s right to privacy. The PWCJ or Workers’ Compensation Appeals Board (WCAB) may order the record sealed on his or her own motion. Alternatively, a party may request that the record be sealed by filing a petition with the district office.

For a record to be filed under seal or sealed, the PWCJ or the WCAB must first establish the following:

1. that there exists an overriding public interest that overcomes the right of public access to the record;
2. the overriding public interest supports sealing the record;
3. a substantial probability exists that the overriding public interest will be prejudiced if the record is not sealed;
4. the proposed sealing is narrowly tailored; and
5. no less restrictive means exists to achieve the overriding public interest.141 If the PWCJ approves the applicant’s request, and makes findings of fact required by law, the record will be sealed and unavailable for public inspection.

§ 3.5.5
E. PENALTIES

Although in previous years there were a number of court decisions adverse to employers on penalty issues, S.B. 899 dramatically rewrote the law on penalties.

§ 3.5.5(a)
Automatic Increases

When any indemnity payment is not timely made, an employer or insurer is required to increase the amount of that payment by 10%.142 Such increases, while required by law and thus unavoidable, may act as ”red flags” to injured employees’ attorneys to file penalty claims, since the fact of delay has already been admitted.

In Moulton v. Workers’ Compensation Appeals Board, the court held that where an employer/carrier unreasonably delays a benefit and does not pay the self-imposed penalty required by California Labor Code section 4650(d), that employer can be assessed a separate penalty under Labor Code section 5814 based upon the failure to pay the self-imposed penalty.143 This separate section 5814 penalty will also apply to the entire species of benefit to which the Labor Code section 4650(d) penalty applied. The Moulton case, therefore, stands for the proposition that nonpayment of a section 4650(d) penalty can provide a separate and distinct section 5814 penalty applied to the entire class of benefit delayed. Since section 4650(d) is considered a subspecies of the benefit to which it applies, this means the separate section 5814 penalty will apply to the benefit delayed and not the section 4650 penalty itself.

§ 3.5.5(b)
Unreasonable Delay

California Labor Code section 5814 was rewritten by S.B. 899. Effective June 1, 2004, section 5814 provides that there is a single 25% penalty on just the amount of the benefit delayed up to a maximum of $10,000, whichever is less. Prior law provided that a 10% penalty was assessed on the entire class of benefit unreasonably delayed. Many times this had harsh and unfair results, since a single unexplainable or inexcusable failure to make a timely payment of compensation could result in a very significant penalty despite an otherwise unbroken string of conscientiously provided benefits.

Section 5814 further provides that if the carrier/employer pays an automatic self-imposed penalty of 10% within ten days of their discovery of the delay, there will be no further penalty assessed. Finally, S.B. 899 also provided that where payment for medical services is delayed solely because of a dispute over the amount a physician charged there can be no assessment of a penalty for unreasonable delay.

Section 5814 penalties are capped at 25% of the amount of refused or delayed benefits, or $100,000, whichever is less. In addition, any liability under this section is reduced by any payments made under section 4650.

§ 3.5.5(c)
Serious & Willful Misconduct (S&W)

An employer’s serious and willful misconduct (S&W) occurs when an employer deliberately disregards a dangerous condition that is likely to cause serious injury to an employee, and an injury is proximately caused by the dangerous condition.144 Serious and willful misconduct is far more than mere negligence, and more than gross negligence.145 The penalty is a 50% increase in compensation, with no upper limit, and the employer alone is responsible for payment of the award. No insurance company may insure against that risk.146 An insurer may provide the cost of a defense to an S&W claim, but that cost rarely is offered.

For 75 years, based on a California Supreme Court case, E. Clemens Horst Co. v. Industrial Accident Commission of California,147 the 50% increase was based only on the temporary and permanent disability indemnity. In 1995, however, a court of appeal held in Ferguson v. Workers’ Compensation Appeals Board,148 that the 50% increase for an employer’s serious and willful misconduct applies to all compensation under the California Labor Code, including medical benefits. Interestingly, the same argument that prevailed in Ferguson previously failed in Townsend v. Workers’ Compensation Appeals Board.149 There, the full WCAB considered and rejected the idea and the court of appeal denied review. Despite this  conflict and the inconsistency of Ferguson with previous case law, the California Supreme Court inexplicably chose to deny review and let the decision stand.

The Ferguson case presents a potentially large problem for employers. Frequently, the cost of medical care provided in a case exceeds the amount of indemnity provided, particularly where a serious injury—as might be expected in a case of serious and willful misconduct—has occurred. Almost overnight, the monetary exposure to employers involved in serious and willful misconduct cases has increased severalfold, with an upper limit just short of what an employee might recover in a normal civil suit.

§ 3.5.5(d)
Labor Code Section 132a Discrimination

Employers and insurers are prohibited from taking any action because of an industrial injury that works toward the detriment of the injured worker.150 Such actions may range from outright termination to a reduction in grade, even where the employee cannot perform the duties of the higher grade,151 or the discontinuance of severance pay.152 When the employee proves that the detriment occurred, the burden shifts to the employer to prove that the detriment was not related to the industrial injury and was necessitated by the realities of doing business.153

An employee’s remedy for illegal discrimination is a 50% increase in benefits up to $10,000 and costs up to $250, plus reinstatement, lost wages and work benefits. In calculating the exposure of a discrimination claim, employers and insurers sometimes overlook the value of the lost wages and work benefits, which often may be more than the 50% increase in compensation benefits. There is no specific bar against insuring against this risk, but such insurance is almost never offered, while insurers may sometimes provide the cost of defense against such a claim.

No case has held yet that the 50% increase in compensation applies to any benefits other than indemnity, as the Ferguson case did with regard to claims of serious and willful misconduct of the employer. Since the language in both statutes is the same, however, it may be only a matter of time before such a ruling issues. Given the $10,000 cap in section 132a, however, the impact would be far less than in an S&W case. A successor employer may be liable for a discriminatory act committed by its predecessor.154

A line of decisions handed down between 1989 and 1998, beginning with Barns v. Workers’ Compensation Appeals Board and culminating with City of Moorpark v. Superior Court, marked adecidedly pro-applicant turn in section 132a jurisprudence. For example, in American Golf Corp. v. Workers’ Compensation Appeals Board,155 the WCAB had held that the employer failed to establish therequired business-realities defense, even though the employer cited the long duration of the employee’s leave of absence and the need to reduce operational burdens caused by her absence.

The WCAB, in Department of Corrections v. Workers’ Compensation Appeals Board, ruled that discrimination was shown by the failure to roll over a part-time employee to full time while she was on temporary disability, and later when she was released to return to work.156 The defense of cost savings, though fiscally responsible, and the defense of a statewide hiring freeze were insufficient. When the employer appealed, the court of appeal found no reasonable basis for the petition, and sanctioned the employer.

In Fedco, Inc. v. Workers’ Compensation Appeals Board, the WCAB held that the business-realities defense was not established, despite testimony from the employer that the employee was replaced due to an attendance problem and poor salesmanship, as the employer had no documentation to back up this testimony.157 Unlawful discrimination was found, even though the injury occurred three years before the termination, and even though neither person involved in the termination of the employee knew of the industrial injury, requiring the WCAB to infer that the termination was because of the injury.

In 2003, however, the California Supreme Court established a far more employer-friendly interpretation of section 132a. In Department of Rehabilitation v. Workers’ Compensation Appeals Board (Lauher), the court determined that in order to make a prima facie showing of discrimination under the statute, a worker must show that he or she had a legal right to the deprived benefit or status, and moreover, that the employer had an obligation to provide that benefit or status.158 In essence, this decision requires more than mere detrimental conduct by the employer—the worker must also show that he or she was subject to differential treatment as a result of the industrial injury. This analysis ostensibly alters the burden as set forth by the court in Barns and represents one of the more significant section 132a cases.

In Gelson’s Markets, Inc. v. Workers’ Compensation Appeals Board, the California Court of Appeal, applying Lauher, reversed a finding of by the WCAB of unlawful discrimination under Labor Code section 132a, and specifically found that section 132a now requires a prima facie showing of disparate treatment.159 In that case, the court of appeal held that an industrially injured claimant failed to establish a prima facie case of discrimination under section 132a when the employer did not allow the claimant to return to work because he had submitted contradictory medical releases.160 Following surgery, the claimant’s first medical release limited his work to the use of a forklift. After a risk manager telephoned the treating physician to seek clarification on the scope of the restrictions, the claimant obtained another release stating that he could return to work without restriction. The employer did not accept the releases because they were contradictory, and did not return claimant to work until receiving the opinion of an agreed medical examiner several months later. The claimant failed to establish the prima facie case of discrimination under section 132a because he made no showing that the employer would have returned to work a non-industrially injured employee whose physician had provided the same releases.

A California Supreme Court decision has concluded that an injured worker may also file a state disability discrimination claim concurrently with a California Labor Code section 132a claim.161 This decision significantly alters the state of the law on that issue. In Moorpark the plaintiff was injured on the job. Once she recovered from her injury she requested to be returned to her position. However, her superior advised her that she was being terminated due to her inability to perform the essential functions of her job. The plaintiff filed a claim of disability discrimination under the Fair Employment and Housing provisions that prohibit such discrimination. The defendant employer argued that such a claim was barred by the exclusive remedy of Labor Code section 132a. The matter proceeded through the court system.

Ultimately, the California Supreme Court concluded that Labor Code section 132a was not the exclusive remedy for an employee injured on the job who claims discrimination as a result of a disability, and that an employee may pursue claims under both state laws. The court noted, however, that the employee would not be entitled to double recovery. An employee is also allowed to pursue both workers’ compensation claims and claims under the Americans with Disabilities Act.162

Amendments to the California Fair Employment and Housing Act (FEHA) by Assembly Bill (A.B.) 2222 that went into effect in 2001 dramatically expanded the scope of California’s existing statutes prohibiting workplace discrimination against disabled persons. The amendments provided a much broader definition of a disability than was found in parallel federal law at the time. However, the federal ADA Amendments Act of 2008 (ADAAA) became effective in 2009 and incorporated a broader definition of disability.

Specifically, the ADAAA rejected the U.S. Supreme Court’s restrictive interpretation of the ADA’s definition of disability and significantly broadened the definition of disability so that it is now more closely aligned with California’s definition under the FEHA. A.B. 2222 also created a new cause of action against an employer for a failure to engage in the interactive process of determining whether a reasonable accommodation can be made for the worker’s disability. Given these changes, it is even more important for employers to be cautious when making personnel decisions involving an industrially injured worker.

Based on the above, any action taken with regard to an industrially injured employee should be carefully considered and founded on verifiable reasons that truly reflect the appropriateness and fairness of the action as compelled by the realities of doing business, not just business expediency, and consistency with existing employer leave of absence policies and past practices. Even the seemingly most well-grounded action may spur a penalty petition and, ultimately, liability for unlawful discrimination. Factors to consider may also include: whether the injured worker has reached permanent and stationary status; whether the injured worker has been declared unable to return to his or her usual and customary job; and whether it has been determined that the employer cannot offer modified or alternative work without undue hardship.

§ 3.5.5(e)
Termination of Health & Welfare Benefits During Workers’ Compensation Leave

There are several WCAB cases that find that the termination of health benefits while an employer is temporarily disabled violates California Labor Code section 132a. In these cases, the WCAB found that although the employer was following the terms of their employee benefit plan, their action still constituted a detriment to the employee that was not compelled by business necessity.163 These cases actually ran contrary to federal law on this same subject.164

However the WCAB’s en banc decision in Navarro v. A&A Farming held that the WCAB has no jurisdiction over such an action, in that it would be preempted by federal ERISA laws.165

However, an employer should be careful not to assume that health benefits can be summarily terminated in every case where an employee is off work due to an industrial injury. The ERISA preemption defense contemplated by Navarro applies only to the termination of benefits provided pursuant to an ERISA plan. Not all health plans are ERISA plans. Employers are cautioned to always seek appropriate expert advice on whether their plan is indeed an ERISA plan, and further whether the termination of an employee’s health and welfare benefits is legally appropriate under other related laws. Employers should also take note that termination of health and welfare benefits is not synonymous with a termination of employment. While termination of health benefits may be justified, a termination of employment generally may still be a violation of Labor Code section 132a, as well as other state and federal laws. An employer should also seek appropriate legal advice before deciding to terminate the employment of an employee who is off work due to an industrial injury.

§ 3.5.6
F. EMPLOYERS’ BILL OF RIGHTS

Employers have some input into the workers’ compensation process. For example, employers may be able to obtain a hearing on the approval of a settlement if they believe that the case is not compensable, providing certain notices have been given and procedures have been followed.166 An insurer generally may not insure an employer or seek reimbursement from an employer for automatic late payment penalties.167 An employer is not liable for increased vocational rehabilitation costs that are due to delay caused primarily by acts of the insurer.168 Furthermore, an employer is not responsible for an increase in vocational rehabilitation benefits that are due to a delay by their insurance carrier. As of 2000, however, an employer’s right to information relating to pending workers’ compensation claims was significantly limited. Employers had been entitled to all information that might affect their workers’ compensation insurance premiums, with the exception of any document that the insurer was prohibited from disclosing due to the attorney-client privilege.169 However, in 2000, California Labor Code section 3762 was amended by Assembly Bill (A.B.) 435 to provide that insurers, as well as third-party administrators, administering workers’ compensation claims for self-insureds, are prohibited from “disclosing or causing to be disclosed to an employer, any medical information, as defined in subdivision (b) of section 56.05 of the Civil Code, about an employee who has filed a workers’ compensation claim.”170

The amended version of Labor Code section 3762 does provide two exceptions to the disclosure prohibition. First, an insurer or third-party administrator can reveal information concerning a “diagnosis” of the injury for which workers’ compensation is claimed that would affect the employer’s premium.171

Second, an insurer or third party administrator can reveal medical information regarding a work related injury that is necessary for the employer to have for the employer to “modify the employee’s job duties.”172

In its original form, A.B. 435 was intended only to provide additional privacy protections for persons infected with the HIV virus or suffering from HIV-related medical conditions.173 However, in a series of last minute amendments, the Bill, as passed, effectively gutted the rights given to employers to receive medical information pertaining to industrially injured workers previously provided by Labor Code section 3762.

California Labor Code section 3762, as amended by A.B. 435, prohibits disclosure to the employer of any “medical information” obtained during the administration of a workers’ compensation claim. Medical information, as defined in Civil Code section 56.05(f) means “any individually identifiable information . . . in possession of or derived from a provider of health care . . . regarding a patient’s medical history, mental or physical condition, or treatment.” This would clearly include any previous medical history given by the employee to his doctor as well as the reports and records of the current treating physician. It would also preclude the employer from obtaining subpoenaed records from other health care providers and medical legal reports. It would probably also prohibit the release of medical information by any kind of abstract prepared by a physician or claims person.

Notwithstanding the explicit inclusion of third-party administrators in the amended version of Labor Code section 3762, there is a real question as to whether this exception applies to

self-insured employers that do not technically pay premiums. Still, records are kept of loss results for selfinsured employers that result in the calculation of experience modification for premium purposes.

Additionally, many self-insured employers have excess insurance and therefore might be said to pay workers’ compensation premiums within the meaning of Labor Code section 3762(c). The second exception allows disclosure of medical information necessary for the employer to evaluate whether modified work is available for the employee. It can be argued that any and all medical reports should be made available to the employer once the treating physician indicates that the applicant may return to work with some restrictions. Arguably, employers must be able to review the entire medical report in order to determine whether, given the employee’s condition at the time, temporary or permanent modified work can be provided. This would include all information necessary to return an injured worker to full duty—i.e., to determine if modification is necessary and what the modification should be if full duty is not possible, or to provide alternative work.

In an effort to solve the problems of interpretation relating to the amendments by A.B. 435 to Labor Code section 3762, Assembly Bill 749 further amended Labor Code section 3762(c)(1) and (2) to provide that employers would be entitled to “medical information limited to the diagnosis of the mental or physical condition for which the workers’ compensation is claimed and the treatment provided for this condition.”

This would permit employers further access to treatment records and records relating to a medical diagnosis without having to determine if such information would “effect the employer’s” premium. The second exception set forth in Labor Code section 3762(c)(2) regarding information necessary to modify an employee’s work duties was not changed in A.B. 749. The 1999 case of Allison v. Workers’ Compensation Appeals Board further limits an employer and even its insurance company’s right to medical information.174 In this case, the injured worker refused to answer deposition questions regarding medical information unrelated to his work injury. The Allison court, citing Britt v. Superior Court,175 held that although an applicant could waive physician-patient privilege by placing his or her medical condition at issue, such a waiver as to a contested medical condition did not waive all medical privacy. More significantly perhaps, the court in Allison set forth procedural guidelines [HIV] through an exposure incident arising out of and in the course of employment.” Labor Code section 56.31 eliminates an exception to Labor Code sections 56 et seq. for industrial injuries for HIV-related injuries. for dealing with disputes over what medical information can be solicited from injured workers in the course of discovery.

§ 3.5.7
G. PROCEDURE

§ 3.5.7(a)
Filing a Claim

An employer is required to give an employee an Employee Claim Form within one working day of an industrial injury, excluding injuries that require only first aid.176 Filing the claim form with the employer starts the 90 days running to deny the claim or have it presumed compensable.177 Filing the form is a prerequisite to a medical evaluation and to receipt by the employee of automatic 25% increases (penalties) for delayed indemnity payment.178

For injuries on or after January 1, 1994, filing the claim form also suspends the time limitation to file an application with the WCAB until the claim is denied or is presumed compensable.179 This means that the time period within which to file an application for benefits with the WCAB may be extended by up to 90 days.

As soon as the claim form is filed, the employer must advise its insurer or claims administrator, since an investigation must be promptly commenced, evidence promptly collected, and a decision made to accept or deny the claim. Failure to promptly report and investigate the claim may prevent the acquisition of evidence that could have been obtained within the first 90 days. If evidence could have been obtained within that 90-day period with the exercise of due diligence, but was acquired later, the evidence may not be admissible at a hearing.180 The consequences of the exclusion of evidence may be extremely adverse.

To the extent possible, the investigation should include a statement or deposition from the injured worker, interviews with any witnesses, a site visit with photographs if appropriate, acquisition of all medical records, and a medical-legal report if allowed. Sometimes, a cost-benefit analysis limits the extent of the investigation.

Although the WCAB in McGoldrick v. Workers’ Compensation Appeals Board held that a denial notice need not be in writing, WCAB rule 10121 requires the denial notice to be in writing, at least for purposes of restarting the statute of limitations.181 The better practice is to issue the denial notice in the form required by the rules.

If the claim of injury is accepted, benefits are provided without WCAB involvement. The primary treating doctor is obligated to report regularly and to report applicant’s level of permanent disability when applicant is permanent and stationary or reached maximum medical improvement.182 If the parties accept the treating doctor’s opinion, the case may be resolved on that basis.

§ 3.5.7(b)
Medical-Legal Evaluations

S.B. 899 also rewrote the procedures for medical legal evaluations. California Labor Code sections 4060 through 4062, governing medical legal evaluations in effect prior to S.B. 899, while certainly not perfect, functioned rather well by allowing the parties to agree to an Agreed Medical Evaluator (AME); where the parties were unable or unwilling to agree to an AME, each was entitled to obtain separate an expert medical opinion from the Qualified Medical Evaluator (QME) of its selection. In cases where an injured worker was unrepresented, and one side objected to the opinions of the primary treating doctor, the applicant could select a panel QME from a list of doctors provided by the state.

Under the current scheme, neither represented party may obtain an admissible QME evaluation, and an employer may no longer obtain a report under section 4060 to determine the compensability of a particular claim during the investigation period (the first 90 days after the claim was filed). Instead, the law requires the parties to agree to an AME. If the parties cannot agree to an AME, then all disputes, including injury arising out of and occurring in the course of employment, are to be addressed by a panel QME. In this circumstance, a panel of three doctors is sent by the state to the parties. The parties must then agree to one of the panel QME’s. A non-agreeing party must strike one of the names on the list, and if it fails to do so, the other party may select the evaluating physician from those listed. If the injured worker fails to timely set the medical evaluation with one of the panel QME’s, then the employer is entitled to do so.

Historically, there has been no real enforcement mechanism where an unrepresented applicant refused to select a panel QME; in effect, the applicant could stall the discovery process by simply not acting. S.B. 899 did address this by allowing an employer to select the panel QME, and even designate the specialty of the physician, where the worker fails to timely select a physician from the panel.

The extensive use of panel QME’s as mandated by California Labor Code sections 4061 through 4062 is problematic to say the least. There are a large number of panel QME’s on file, and most of these doctors neither perform regular medical legal evaluations, nor report consistently in workers’ compensation cases. Because of this, panel QME reports have a greater tendency to be inadequate, or simply unfounded. And while the reports may be in the correct format, the medical legal conclusions of many of these doctors will be far from predictable. This reality does, of course, provide the parties with a strong incentive to utilize an AME.

§ 3.5.7(c)
Initiating WCAB Proceedings

The jurisdiction of the WCAB is invoked by the filing of an application for adjudication of claim.183 The jurisdiction of the WCAB is necessary to schedule depositions and subpoena records. A hearing is obtained by filing a Declaration of Readiness to Proceed or a request for an Expedited Hearing. The WCAB is required to promptly set cases for hearing. Hearings may be conferences, for the purpose of settlement discussion and the identification of issues, witnesses, and evidence, or trials, for the actual presentation of testimony and receipt of evidence. Conferences are almost always set before trials.

A hearing should not be requested by a party until its case is complete, for at a Mandatory Settlement Conference, acquisition and admission of any further evidence not already obtained may be prohibited. Conferences may be adjourned or continued to a later date only if specific good cause exists for the delay.

§ 3.5.7(d)
Statutes of Limitation

Time limits exist on the filing of workers’ compensation claims, but claims are rarely precluded by these limits due to a variety of factors, such as the employee’s lack of knowledge of his or her rights. No statute of limitations runs against a minor or an incompetent.184

Ordinary cases must be filed within one year from the date of injury, or from the last provision of benefits, whichever is later.185 A claim for death benefits may be filed within one year of the date of death or within one year of the last furnishing of benefits if death occurs more than one year from the date of injury, but in no event may the claim be filed more than 240 weeks from the date of injury.186 Discrimination claims are to be filed within one year of the discriminatory act,187 and claims of serious and willful misconduct must be filed within one year of the misconduct.188

§ 3.5.7(e)
Litigation & Hearing

The litigation process entails the investigation and acquisition of evidence not already obtained, and presumably not obtainable, during the 90 days of investigation after the filing of the claim form. There may be depositions of the injured employee, witnesses, or doctors. Additional medical, employment, or other records may be obtained and reviewed by both sides. Strategy and tactics for trial of the case are developed. In appropriate cases, investigators may be employed to place an employee under surveillance.

Before a hearing is requested, attempts must be made to negotiate a settlement. A workers’ compensation trial is an informal proceeding. The case is tried before a judge only, andformal rules of evidence do not apply. Unlike at civil trials, at the WCAB hearsay evidence is specifically admissible, though it is sometimes excluded as unreliable. Medical evidence is taken in the form of written reports and records. Testimony is given under oath and the witnesses are examined orally by the attorneys or representatives, or even by the judge. Rarely do trials last more than one day or involve more than a few witnesses.

§ 3.5.7(f)
Arbitration

An alternative to litigation at the WCAB is arbitration. Retired judges or attorneys act as arbitrators. The process is voluntary in most cases, but is required for matters involving insurance coverage disputes, low permanent disability cases, and some rehabilitation appeals. The process is seen as more expedient and less formal than WCAB proceedings. Arbitrators’ awards are subject to appeal in the same manner as the awards of WCAB judges.189

§ 3.5.7(g)
Resolution

The WCAB strongly encourages informal resolution of disputes, rather than litigation and a decision by a judge.

A workers’ compensation case may be a medical only case, involving no lost time or permanent disability. Such cases are usually closed without any further action.

Cases involving indemnity or need for further benefits may be resolved by an agreement to the facts, known as Stipulations with Request for Award. If approved by the WCAB, an award will issue from a judge granting to the injured employee the benefits to which the parties agreed. A stipulated award is subject to reopening for further benefits for up to five years after the date of injury. All cases may be fully resolved, closed, and not subject to reopening by a Compromise and Release (C&R). A C&R usually deals with all issues including future medical care. Usually, the amount of a compromise and release is greater than the value of the indemnity, since the injured employee is giving up future rights and the employer is being released from any further liability.

Sometimes all the issues in a case may be resolved, other than future medical care. In this event, an open C&R is drawn up, in which the employee gives up all rights other than lifetime medical care. In cases with a large monetary exposure, a structured settlement may be used. A C&R is still employed, but instead of the one lump sum payment usually found in such a settlement agreement, a series of lump sum and installment payments are made to the injured employee. The payments usually are made by an insurance company under a contract purchased by the employer or insurer.

All C&R agreements must be approved by the WCAB, which is charged with ensuring the adequacy of the agreement for the injured employee. here has been a renewed concern about restrictions placed upon workers’ compensation C&R agreements by Medicare. The Health Care Financing Administration (HCFA), the agency that administers Medicare, has the right to reimbursement for any monies paid by Medicare for a work-related injury settled by way of compromise and release, when such settlement includes compensation for future medical care.

Moreover, reimbursement can come from the worker, his or her lawyer or even the defendant/insurance company paying the settlement. The law governing right of such reimbursement is set forth at U.S. Code title 42, section 1395y(b) and the Code of Federal Regulations title 42, sections 411.40 through 411.47 (also called the “Medicare Second Payer” rules). These laws provide that if an injured worker has received funds from a settlement of a workers’ compensation claim for the payment of future medical expenses, which would normally be covered by Medicare, then Medicare is not required to pay such expenses. The regulations also expressly prohibit any attempts to improperly characterize settlement proceeds so as to avoid Medicare’s right of reimbursement. If the case is not settled, but rather tried, a written decision by the judge is required within 30 days of submission of the case. Any party or lien claimant may appeal the trial judge’s decision to a panel of WCAB commissioners, which may or may not grant reconsideration. Appeals to the state appellate courts and the California Supreme Court also are discretionary on the part of the court. Compared to the number of requests that are made, review of workers’ compensation cases are rare, and the number of reviews that are granted at the injured worker’s request far outnumber the reviews requested by the employer.

§ 3.5.7(h)
Continuing Jurisdiction & Reopening a Case

The WCAB has continuing jurisdiction over all its orders, decisions, and awards, but a petition to reopen for good cause, filed within five years of the date of injury, is required to augment, rescind, alter, or amend an award.190 Thus, the WCAB can enforce an award of lifetime medical care even ten years after a date of injury, but it cannot award additional temporary disability that long after an injury unless a petition to reopen has been timely filed.

§ 3.5.8
H. CONCLUSION

S.B. 899, S.B. 228 and A.B. 227 significantly reduced costs of workers’ compensation insurance for employers and most employers have seen at least some of these savings passed onto them.

Workers’ compensation reform continues to claim a position atop employers’ agendas and reform proponents continue to contend that a great deal more needs to be done to further bring workers’ compensation costs under control. Meanwhile, labor continually advances its agenda to increase benefits to injured workers, particularly permanent disability benefits that were significantly impacted by S.B 899.

1 Johns-Manville Prods. Corp. v. Superior Court (Rudkin), 27 Cal. 3d 465, 474 (1980).
2 CAL. LAB. CODE § 3202.5.
3 CAL. LAB. CODE § 3700.
4 Id. §§ 4150-57.
5 Id. § 3201.5.
6 CAL. LAB. CODE § 2810.5. See discussion above in this Chapter at § 3.1.2(a).
7 See CAL. INS. CODE §§ 11770-881.
8 Id. § 11846.
9 See CAL. LAB. CODE § 3700.5.
10 Id. § 3710.1.
11 Id. § 3710.2.
12 See id. § 4554.
13 See id. § 4555.
14 CAL. LAB. CODE §§ 3710-32.
15 Id. §§ 3706, 3708.
16 Wong v. State Comp. Ins. Fund, 12 Cal. App. 4th 686 (1993).
17 9 Cal. 4th 27 (1994).
18 888 F. Supp. 1022 (N.D. Cal. 1995).
19 32 Cal. App. 4th 1589 (1995).
20 Producers Dairy Delivery Co. v. Sentry Ins. Co., 41 Cal. 3d 903 (1986).
21 See Middletown Rancheria of Pomo Indians v. Workers’ Comp. Appeals Bd. (Sherron), 60 Cal. App. 4th 1340 (1998).
22 CAL. INS. CODE § 1871.4; CAL. LAB. CODE § 3820.
23 CAL. LAB. CODE § 5401.7.
24 CAL. INS. CODE § 1871.5.
25 CAL. LAB. CODE § 4906(g).
26 Id. §§ 3351, 3357, 3370.
27 See id. § 3353.
28 Id. § 3352.
29 State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd., 40 Cal. 3d 5 (1985); Blew v. Horner, 187 Cal. App. 3d 1380 (1986).
30 Aubry v. Workers’ Comp. Appeals Bd., 60 Cal. Comp. Cas. 408 (1995)
31 Hopkins Pattern, Inc. v. Workers’ Comp. Appeals Bd., 60 Cal. Comp. Cas. 128 (1995).
32 CAL. LAB. CODE §§ 3208, 3208.1.
33 Id. § 3208.05.
34 Id. § 3208.3.
35 Some employees, such as voluntary ski patrol members who received no compensation other than meals or lodging and use of the ski facilities, are excluded by law. Id. § 3352.
36 This provision has been interpreted to include injuries occurring during meal breaks and restroom visits under the “personal comfort and convenience” doctrine.
37 Courts ask: But for the employment, would the injury have occurred?
38 The intoxication may be by alcohol or a controlled substance. This is one of the few exceptions to the no-fault rule.
39 Hinojosa v. Workmen’s Comp. Appeals Bd., 8 Cal. 3d 150 (1972).
40 See Employers Mut. Liab. Ins. Co v. Industrial Accident Comm’n, 41 Cal. 2d 676 (1953).
41 See California Comp. & Fire Co. v. Workmen’s Comp. Appeals Bd., 68 Cal. 2d 157 (1968).
42 See Wiseman v. Industrial Accident Comm’n of Cal., 46 Cal. 2d 570 (1956).
43 See Miller v. Workers’ Comp. Appeals Bd., 59 Cal. Comp. Cas. 610 (1994).
44 See Price v. Workers’ Comp. Appeals Bd., 37 Cal. 3d 559 (1984).
45 See Smith v. Workers’ Comp. Appeals Bd., 191 Cal. App. 3d 127 (1987).
46 See Westbrooks v. Workers’ Comp. Appeals Bd., 203 Cal. App. 3d 249 (1988).
47 See F.D. Titus & Sons, AIG Claims Servs. v. Workers’ Comp. Appeals Bd., 62 Cal. Comp. Cas. 1158 (1997).
48 See Johnson v. Workers’ Comp. Appeals Bd., 60 Cal. Comp. Cas. 690 (1995).
49 See Oliva v. Heath, 35 Cal. App. 4th 926 (1995).
50 See Federal Ins. Co. v. Workers’ Comp. Appeals Bd., 60 Cal. Comp. Cas. 422 (1995).
51 See Mero v. Sadoff, 31 Cal. App. 4th 1466 (1995).
52 See Fairmont Ins. Co. v. Workers’ Comp. Appeals Bd., 56 Cal. Comp. Cas. 392 (1991).
53 CJS Co. v. Workers’ Comp. Appeals Bd., 74 Cal. App. 4th 294 (1999).
54 CAL. LAB. CODE §§ 3212-12.7.
55 Id. § 3212.1.
56 Id. § 5402.
57 State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd., 37 Cal. App. 4th 675 (1995).
58 Fontes v. Workers’ Comp. Appeals Bd., 23 Cal. Workers’ Comp. Rep. (MB) 10 (1995).
59 Paula Ins. Co. v. Workers’ Comp. Appeals Bd., 60 Cal. Comp. Cas. 356 (1995).
60 Napier v. Royal Ins. Co., 20 Cal. Workers’ Comp. Rep. (MB) 124 (1992).
61 20 Cal. Workers’ Comp. Rep. (MB) 303 (1992).
62 Pinson v. Workers’ Comp. Appeals Bd., 60 Cal. Comp. Cas. 141 (1995).
63 See Bowles v. Workers’ Comp. Appeals Bd., 60 Cal. Comp. Cas. 874 (1995); Witherell v. Workers’ Comp. Appeals Bd., 59 Cal. Comp. Cas. 1128 (1994).
64 See Davis v. Workers’ Comp. Appeals Bd., 59 Cal. Comp. Cas. 1066 (1994); Strange v. State Comp. Ins. Fund, 22 Cal. Workers’ Comp. Rep. (MB) 166 (1994).
65 Robles v. Workers’ Comp. Appeals Bd., 60 Cal. Comp. Cas. 536 (1995).
66 Case No. RDG 62093, Findings and Order (1995).
67 59 Cal. Comp. Cas. 757 (1994).
68 See McGoldrick v. Workers’ Comp. Appeals Bd., 22 Cal. Workers’ Comp. Rep. (MB) 119 (1994).
69 Rodriguez v. Workers’ Comp. Appeals Bd., 30 Cal. App. 4th 1425 (1994).
70 See Bryant v. State Comp. Ins. Fund., 23 Cal. Workers’ Comp. Rep. (MB) 192 (1995).
71 See Memorial Hosp. Ass’n v. Workers’ Comp. Appeals Bd., 60 Cal. Comp. Cas. 779 (1995).
72 CAL. LAB. CODE §§ 3601, 3602.
73 Williams v. Schwartz, 61 Cal. App. 3d 628 (1976).
74 Doney v. TRW, Inc., 33 Cal. App. 4th 245 (1995).
75 Livitsanos v. Superior Court (Continental Culture Specialist, Inc), 2 Cal. 4th 744 (1992); see also Miklosy v. Regents of Univ. of Cal., 44 Cal. 4th 876 (2008) (holding that plaintiff’s intentional infliction of emotion distress claim was barred by the workers’ compensation exclusive remedy provisions because the alleged wrongful conduct occurred at the worksite, in the normal course of the employer-employee relationship).
76 CAL. LAB. CODE §§ 3850-65.
77 Id. §§ 4653, 4654.
78 Id. § 4657.
79 Id. § 4453.
80 Id. § 4454.
81 Hofmeister v. Workers’ Comp. Appeals Bd., 156 Cal. App. 3d 848 (1984).
82 Gonzales v. Workers’ Comp. Appeals Bd., 68 Cal. App. 4th 843 (1998).
83 CAL. LAB. CODE §§ 4458-58.5.
84 Id. §§ 4850-55.
85 Id. § 4656(c)(1) (commencement of payment), (c)(2) (date of injury).
86 Foster v. Workers’ Comp. Appeals Board, 161 Cal. App. 4th 1505 (2008), writ denied, 2008 Cal. LEXIS 7746 (June 25, 2008).
87 CAL. LAB. CODE § 4656(c)(3).
88 Id. §§ 4453, 4658.
89 Id. § 4659.
90 Id. §§ 4750, 4663.
91 Id. § 4750.5.
92 Id. § 4663(a) and (b).
93 CAL. LAB. CODE § 4664(b).
94 Escobedo v. Marshalls, CNA Ins. Co., 70 Cal. Comp. Cas. 604 (2005) (en banc).
95 Kleeman v. Workers’ Comp. Appeals Bd., 127 Cal. App. 4th 274 (2005).
96 Fuentes v. Workers’ Comp. Appeals Bd., 70 Cal. Comp. Cas. 856 (2005) (en banc).
97 Benson v. Permanente Med. Group, 72 Cal. Comp. Cas. 1620 (2007) (en banc).
98 CAL. LAB. CODE § 4659.
99 LeBoeuf v. Workers’ Comp. Appeals Bd., 34 Cal. 3d 234 (1983).
100 Benson v. Permanente Med. Group, 72 Cal. Comp. Cas. 1620 (2007) (en banc).
101 See Espinoza v. Workers’ Comp. Appeals Bd., 59 Cal. Comp. Cas. 753 (1994).
102 See Vera v. Workers’ Comp. Appeals Bd., 154 Cal. App. 4th 996 (2007) (Irion, J., Benke, J., and Aaron, J.).
103 See Costco Wholesale Corp. v. Workers’ Comp. Appeals Bd. (Chavez), 151 Cal. App. 4th 148 (2007), modified, 2007 Cal. App. LEXIS 991 (June 14, 2007).
104 Genlyte Group L.L.C. v. Workers’ Comp Appeals Bd. (Zavala), 158 Cal. App. 4th 705 (2008) (a recommendation for vocational rehabilitation before a workers’ condition reaches permanent and stationary status suggested the existence of permanent disability); Lewis v. Workers’ Comp. Appeals Bd., 168 Cal. App. 4th 696 (2008) (same).
105 Ogilvie I, ADJ1177048, SFO 0487779 (en banc) (Feb. 3, 2009).
106 Almaraz, ADJ1078163, BAK 0145426 (en banc) (Feb. 3, 2009).
107 Guzman, ADJ3341185, SJO 0254688 (en banc) (Feb. 3, 2009).
108 Almaraz v. Environmental Recovery Serv.; Joyce Guzman v. Milpitas Unified Sch. Dist., ADJ 1078163/ADJ 3341185 (Almaraz/Guzman II) (Sept. 3, 2009).
109 Id.
110 Id.
111 Id.
112 Id.
113 Almaraz/Guzman II, ADJ 1078163/ADJ 3341185.
114 Id.
115 Ogilvie v. City & County of S.F. (Ogilvie II), ADJ1177048 (SFO 0487779) (Sept. 3, 2009).
116 Id.
117 Id.
118 Id.
119 Id.
120 Ogilvie II, ADJ1177048 (SFO 0487779).
121 Ogilvie v. Workers’ Comp. Appeals Bd., 197 Cal. App. 4th 1262, 1276 ( 2011).
122 Id. at 1276-77.
123Id.
124 CAL. LAB. CODE § 4600.
125 Id at § 4604.5 (d).
126 Id at § 4600.1.
127 Id at § 4603.2.
128 State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (Brice Sandhagen), 10 WCAB Rptr. 10 (July 3, 2008).
129 CAL. LAB. CODE § 4610.
130 Id.
131 Id.
132 CAL. LAB. CODE § 5814.
133 CAL. LAB. CODE § 4616.
134 Id at § 4600(d).
135 Lawrence Weiner v. Ralph’s Co., Permissibly Self-Insured and Sedgwick Claims Mgmt. Serv., Inc. (Adjusting Agent) ADJ 347040, MON 0305426 (en banc) (June 11, 2009).
136 Id.
137 CAL. LAB. CODE § 4635.
138 Id. § 4635.
139 CAL. LAB. CODE § 4658.5.
140 Id. § 4658.6.
141 CAL. CODE REG. tit. 8, § 10272(d).
142 CAL. LAB. CODE § 4650(d).
143 84 Cal. App. 4th 837 (2000).
144 An employee may be guilty of serious and willful misconduct also, resulting in a possible 50% reduction in compensation, see CAL. LAB. CODE § 4551, but such cases are extremely rare.
145 CAL. LAB. CODE § 4553; Johns-Manville Sales Corp. Private Carriage v. Workers’ Comp. Appeals Bd., 96 Cal. App. 3d 923 (1979).
146 CAL. INS. CODE § 11661.
147 184 Cal. 180 (1920).
148 33 Cal. App. 4th 1613 (1995).
149 59 Cal. Comp. Cas. 1116 (1994).
150 CAL. LAB. CODE § 132a; Smith v. Workers’ Comp. Appeals Bd., 152 Cal. App. 3d 1104 (1984).
151 See County of Santa Barbara v. Workers’ Comp. Appeals Bd., 109 Cal. App. 3d 211 (1980).
152 Ditzler v. Loomis Armored Car, Inc., 16 Cal. Workers’ Comp. Rep. (MB) 165 (1988).
153 Judson Steel Corp. v. Workers’ Comp. Appeals Bd., 22 Cal. 3d 658 (1978).
154 Superior Care Facilities v. Workers’ Comp. Appeals Bd., 27 Cal. App. 4th 1015 (1994).
155 60 Cal. Comp. Cas. 401 (1995).
156 60 Cal. Comp. Cas. 419 (1995).
157 60 Cal. Comp. Cas. 623 (1995).
158 Department of Rehab. v. Workers’ Comp. Appeals Bd. (Lauher), 30 Cal. 4th 1281, 1300 (2003).
159 Gelson’s Mkts., Inc. v. Workers’ Comp. Appeals Bd., 179 Cal. App. 4th 201 (2009).
160 Id.
161 City of Moorpark v. Superior Court, 18 Cal. 4th 1143 (1998).
162 Wood v. County of Alameda, 875 F. Supp. 659 (N.D. Cal. 1995).
163 Maraviov v. Tenet Health Sys. (Case No. RDG 7544, Nov. 6, 1997, 25 CWCR 341); Schick Moving Sys. v. Workers’ Comp. Appeals Bd., 63 Cal. Comp. Cas. 1307 (1998); Braden v. Workers’ Comp. Appeals Bd., 64 Cal. Comp. Cas. 1069 (1999); Beverly Hosp. v. Workers’ Comp. Appeals Bd., 61 Cal. Comp. Cas. 491 (1996).
164 The Supreme Court of the United States addressed nearly this precise issue in District of Columbia v. Greater Washington Board of Trade, 506 U.S. 125 (1992), in a case involving a statute similar to Labor Code Section 132a. In that case, the Supreme Court held that a District of Columbia requirement that employers that provide health insurance for employees must provide equivalent health insurance coverage for industrially injured employees was preempted by ERISA.
165 67 Cal. Comp. Cas. 296 (2002).
166 CAL. LAB. CODE § 3761; CAL. CODE REGS. tit. 8, § 10875.
167 CAL. INS. CODE § 11661.6; CAL. LAB. CODE § 4650(e).
168 CAL. LAB. CODE § 4642(b).
169 Id. § 3762.
170 Id. § 3762(c).
171 Id. § 3762(c)(1).
172 Id. § 3762(c)(2).
173 Specifically, A.B. 435 added Civil Code section 56.31, which prohibits disclosure of “medical information regarding whether a patient is infected with or exposed to the human immunodeficiency virus without prior authorization from the patient unless the patient is an injured worker claiming to be infected with or exposed to the
174 72 Cal. App. 4th 654 (1999).
175 20 Cal. 3d 844 (1978).
176 CAL. LAB. CODE § 5401(a).
177 Id. § 5402.
178 Id. § 5401(c).
179 Id.
180 CAL. LAB. CODE § 5402; Napier v. Royal Ins. Co., 20 Cal. Workers’ Comp. Rep. (MB) 124 (1992); Finess v. American Motorists, 20 Cal. Workers’ Comp. Rep. (MB) 303 (1992).
181 22 Cal. Workers’ Comp. Rep. (MB) 119 (1994).
182 CAL. LAB. CODE § 4061.5.
183 Between January 1, 1990, and January 1, 1994, jurisdiction was invoked by the filing of the claim form with the employer. This process had significant legal and practical problems and was repealed.
184 CAL. LAB. CODE § 5408.
185 Id. § 5405.
186 Id. § 5406.
187 Id. § 132a.
188 Id. § 5407.
189 CAL. LAB. CODE §§ 5270-78.
190 CAL. LAB. CODE §§ 5804, 5410.