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Summary of Contents

Chapter 1     INTRODUCTION

Chapter 2     JURISDICTION

Chapter 3     THE EMPLOYMENT RELATIONSHIP

Chapter 4     INJURY

Chapter 5     COURSE OF EMPLOYMENT (TIME AND PLACE)

Chapter 6     ARISING OUT OF EMPLOYMENT (CAUSAL RELATIONSHIP)

Chapter 7     TEMPORARY DISABILITY

Chapter 8     PERMANENT DISABILITY

Chapter 9     MEDICAL BENEFITS

Chapter 10   VOCATIONAL REHABILITATION BENEFITS

Chapter 11   DEATH BENEFITS

Chapter 12   PENALTIES: INCREASED AND REDUCED COMPENSATION ON ACCOUNT OF FAULT

Chapter 13   INSURANCE: SECURING LIABILITY FOR COMPENSATION

Chapter 14   THE DELIVERY SYSTEM: ADMINISTRATIVE SUPERVISION; NOTICE REQUIREMENTS; AUDIT PROCEDURES; ANTI-FRAUD LEGISLATION; INJURY PREVENTION PROGRAMS; AND THE INFORMATION AND ASSISTANCE PROGRAM

Chapter 15   SETTLEMENTS:COMPROMISE AND RELEASE, AND STIPULATED FINDINGS & AWARD

Chapter 16   CLAIM FILING PROCEDURE, PLEADINGS, VENUE AND DISMISSAL

Chapter 17   ATTORNEYS AND REPRESENTATIVES

Chapter 18   STATUTE OF LIMITATIONS: ORIGINAL FILINGS AND REOPENINGS

Chapter 19   PREPARATION FOR TRIAL AND OTHER PRE-TRIAL MATTERS

Chapter 20   PRE-TRIAL DISCOVERY: DEPOSITIONS AND OTHER TECHNIQUES

Chapter 21   TRIAL SETTING AND TRIAL

Chapter 22   JUDGMENTS: POST TRIAL DISPOSITIONS, DECISIONS AND OTHER MATTERS (INTEREST, COSTS, LIEN CLAIMS, CREDIT, CLERICAL ERROR, ENFORCEMENT, COMMUTATION AND RESTITUTION)

Chapter 23   RECONSIDERATION AND REVIEW

Expanded Table of Contents

Chapter 1        INTRODUCTION

I. Definitions; Background

II. The Statutory Scheme

III. California Background; “Police Power”

IV. The Basic Workers’ Compensation System

V. Liberal Construction

VI. Legislative Sea Change

Chapter 2        JURISDICTION

I. Appeals Board Jurisdiction

A. General Points

B. Exclusivity – No Civil Actions

II. Federal Exclusions and Preemptions

A. Admiralty Act – Jones Act

B. The Longshore and Harbor Workers’ Compensation Act (LHWCA)

C. Other Federal Exclusions & Preemptions

III. LC §3600 Exclusions of In-State Injury to Temporary Resident

IV. Excluded Employment

V. Employment-Related Civil Suits: Job-site “Third Party Suits”

VI. Civil Actions Against Employers

A. “Dual Capacity” Doctrine

B. Willful Physical Assault

C. Intentional Infliction of Emotional Distress

D. Wrongful Termination

E. Breach of Employment Contract

F. Defamation

G. Invasion of Right of Privacy

H. Statutory Discrimination Claims

1. Procedures

2. Claims

I. Other Civil Actions Against Employers

VII. Actions Against Co-Employees

VIII. Actions Against Insurance Carriers

IX. Election of Remedies

X. Out of State Injuries: Extraterritorial Jurisdiction

XI. Conflict of Laws

XII. Incidental Jurisdiction

XIII. Jurisdiction to Determine Jurisdiction

XIV. Personal Jurisdiction

Chapter 3        THE EMPLOYMENT RELATIONSHIP

I. General Definitions

II. Elements of the Relationship

III. Pre-Employment Occurrences

IV. Day-to-Day Employment

V. Identity of Employer

VI. Multiple Employments

A. General and Special Employment – Kowalski, Brassinga

B. Other Types of Multiple Employments

VII. Independent Contractor Relationship

VIII. Statutorily Excluded Employees

IX. Rights of Excluded Workers

X. Household Workers

XI. Rights of Non-Covered Household Workers

XII. Election to Come Within the Act

XIII. Statutorily-Included Employees

XIV. Judicially Included Employees

Chapter 4        INJURY

I. Definitions

II. “Date” and/or “Time” of Injury

III. Harm-Producing Incident or Exposure

IV. Burden of Proof

V. Industrially-Caused Aggravations

A. General Points

B. Specific Injuries

VI. Police and Fire Fighter Presumptions

VII. Cumulative Injury

VIII. Occupational Disease

IX. Procedures: Cumulative Injury and Occupational Disease

A. General Points

B. Employment Periods Covered by LC §5500.5

X. Cumulative Injury: Employee’s Right of Election

XI. Application of LC §5500.5 to Multiple Injury Claims

XII. Contribution – Cumulative Injury/Multiple Injuries

XIII. Asbestosis

Chapter 5        COURSE OF EMPLOYMENT (TIME AND PLACE)

I. General Discussion – AOE/COE

II. Personal Comfort Doctrine

A. At Work, On Premises

B. Coffee Break / Lunch Break

III. Permitted Activity

IV. Prohibited Activity

V. Extension of Premises

VI. Return to Premises

VII. Off-Premises Injuries: The Going-and-Coming Rule

VIII. The Special Mission/Errand Exception

IX. Commercial Traveler Rule

X. Recreational, Social and Athletic Activities

Chapter 6        ARISING OUT OF EMPLOYMENT (CAUSAL RELATIONSHIP)

I. General Discussion

II. Burden of Proof

III. Sufficiency of Medical Evidence

IV. Conditions: Stress-Related Ailments

A. Psychiatric Injury: Background

B. Legislative Restrictions on Compensability of Psyche Claims

C. Sufficiency of Evidence in Stress Cases

V. Stress From Alleged Wrongdoing on the Job

VI. Other Ailments, Conditions

VII. Mysterious Injury or Death

VIII. Assaults (Tortious Acts)

IX. Altercations

X. Horseplay and Skylarking

XI. Self-Inflicted Injuries

XII. Suicide

XIII. Intoxication

XIV. Compensable Consequence Injuries

Chapter 7        TEMPORARY DISABILITY

I. General Points

II. Continued Wage Payments

A. Wage Loss Is a Pre-Requisite for TD

B. Employer’s Right to Lien or Credit

III. Period of Disability

IV. New and Further Temporary Disability

V. Computation of Indemnity: Compensation Rates

VI. Earning Capacity: “Average Weekly Earnings”

VII. Temporary Disability Indemnity

VIII. Temporary Partial Disability

IX. Apportionment of Temporary Disability

X. Termination of Temporary Disability Benefits

Chapter 8        PERMANENT DISABILITY

I. Introduction

A. PD Under the New Rating System

B. PD Under the Old Rating System

II. Total and Nominal Disability

III. Permanent Partial Disabilities: The Permanent Disability Rating Schedule

IV. Disability Evaluation Unit – The Rating Experts

V. Disability Evaluation Specialists in Litigation – Formal Rating Reports

VI. The Rating Schedule: Adjustments for Functional Earning Capacity, Age, and Occupation

VII. The Rating Schedule: Disability Factors for the Old Rating System

VIII. Selection of Factors: The Formal Rating Process

IX. Application of Schedule to Factors – Example of the Formal Rating Process – Old Rating System

X. Multiple Disabilities Table

XI(New). Apportionment Post SB-899 (2004)

XI(Old). Apportionment: Generally

XII(Old). Apportionment Between Industrially-Caused Aggravation and the Pre-Existing Condition

XIII(Old). Apportionment Between Pre-Existing Disability and the Direct Effects of the Industrial Injury

XIV(Old). Apportionment to Subsequent Events

XV. Subsequent Injuries Fund Benefits

XVI. Permanent Disability Indemnity

Chapter 9        MEDICAL BENEFITS

I. Primary Duty to Provide Medical Treatment

II. Types of Treatments

A. Statutory Types

B. Treatment Through Special Group Plans

III. Medical Transportation and Lost-Wage Expense

IV. Medical Provider Networks

V. Utilization Review and ACOEM Guidelines

VI. Employee’s “Free Choice” of Physician Outside of the MPN

VII. Employer Petition for Change of Physician: Regaining Employer Control

VIII. Recovery of Expense for Self-Procured Medical Treatment

IX. Medical Findings and Award

X. Medical Fees for Industrial Treatment

XI. Lien Claims for Self-Procured Medical Treatment

XII. Unreasonable Refusal to Submit to Medical Treatment or Examination

Chapter 10      VOCATIONAL REHABILITATION BENEFITS

I. Introduction

A. History and Status of Vocational Rehabilitation

B. Injuries On or After January 1, 2004

C. Injuries Before January 1, 2004

II. Qualified Injured Worker

A. General Points

B. Suitable Gainful Employment

C. Alternative Skills and Pursuits

D. Unwillingness To Undergo Rehabilitation

III. Rehabilitation Duties: Monitoring and Notice Requirements

A. Definitions

B. Employer Monitoring and Reporting Duties

1. 1990-1993 Injuries: 90-day TTD Claims Administrator Duties

2. Post 1/1/94 Injuries

C. Notice and Service Requirements

D. Initiation of Rehabilitation Services

IV. Monetary Caps: Cost and Time Limitations

V. Vocational Rehabilitation Plans

A. Alternate or Modified Work

B. The Plan Generally

C. Contents of Plan – DWC Form RU-102

D. Illegal Plans

E. Effect of Unsuccessful Program: Successive Plans

F. Additional Provisions

VI. Vocational Rehabilitation Maintenance Allowance

A. General Points

B. Interruption of VRTD/VRMA

C. Termination of VRTD/Maintenance Allowance

VII. Other Rehabilitation Benefits

VIII. Rehabilitation Unit Procedures

A. Initiation of Services

B. Time Limitations: One-Year Statute

C. Time Limitations: The Five-Year Statute

D. Compare “Interruption, Suspension or Reservation of Jurisdiction” To “Closure, Conclusion or Termination”

E. Dispute Resolution

F. Reinstatement and/or Reopening of VR Services; Requests for Additional VR Services

G. Termination/Conclusion/Closure of Rehabilitation Services/Liability

H. Rehabilitation Bureau/Unit Order

I. Attorney Fees

IX. Appeal of Rehabilitation Unit Order

X. Settlement of Rehabilitation Benefits

XI. Effect on Permanent Disability

Chapter 11      DEATH BENEFITS

I. Injury AOE/COE – Evidence

II. Time Limitations

III. Dependents Entitled to Death Benefits

IV. Death Benefits

V. The Death Benefit Award

VI. Priorities Among Dependents

VII. Effect of Disposition of Employee’s Inter Vivos Case

VIII. Industrial Death Without Dependents

IX. Effect of Death on Accrued Compensation Benefits

Chapter 12      PENALTIES: INCREASED AND REDUCED COMPENSATION ON ACCOUNT OF FAULT

I. Introduction

II. Employer Serious and Willful Misconduct

III. Employee Serious and Willful Misconduct

A. LC §4551

B. Procedures

IV. Aggravation of Disability by “Unreasonable Conduct” of the Employee

V. Unreasonable Delay or Refusal in Providing Compensation

A. General Points

B. Justifiable Delays

C. Unjustified Delays

D. Multiple Penalties: Separate, Successive Delays

E. Computation of the Penalty

VI. Illegal Employment of Minors

VII. Unlawful Discrimination Against Employee for Involvement in Compensation Claim

A. General Points

B. Sanctions Available to Employee

C. Employer Discriminatory Acts

D. Insurer Discriminatory Acts

E. Other Discriminatory Acts

F. Burden of Proof

G. “Realities of Doing Business”/”Business Necessities”

H. Employment Discrimination Claim Procedures

VIII. Willful Failure to Insure

Chapter 13      INSURANCE: SECURING LIABILITY FOR COMPENSATION

I. General Discussion

II. State Compensation Insurance Fund

III. Self-Insurance

IV. Insurance “Rights and Privileges”

V. Sanctions for Noncompliance

VI. Other Sanctions for Noncompliance: Crimes, Penalties & Civil Suits

VII. Uninsured Employers Benefits Trust Fund (Formerly Uninsured Employers Fund)

A. General Points

B. Screening UEF Cases

C. Service of Process on Employers

1. General Points

2. Board “Summons”

3. Manner & Proof of Service

D. Proceedings After Service

E. Payment By Fund

F. Certificates of Lien Against Uninsured Employers – Property Liens

G. Liens, Suits Against Substantial Shareholders or Corporate “Parents”

H. DIR Civil Actions Against Uninsured Employer

I. Subrogation Rights of UEF

VIII. Insurance Coverage

IX. Terms of Coverage

X. Insurance Premiums

XI. The Workers’ Compensation Insurance Rating Bureau

XII. Employer Bill of Rights

Chapter 14      THE DELIVERY SYSTEM: ADMINISTRATIVE SUPERVISION; NOTICE REQUIREMENTS; AUDIT PROCEDURES; ANTI-FRAUD LEGISLATION; INJURY PREVENTION PROGRAMS; AND THE INFORMATION AND ASSISTANCE PROGRAM

I. Background

II. Division of Workers’ Compensation

III. Notice Requirements: “Pre-Injury Notices” to all Employees

IV. Benefit Notice Requirements

A. General Points

B. When Notices Must Be Sent

C. Corrections; Supervision; First Payment

D. Sanctions for Noncompliance With Benefit Notice Rules

V. Other Post-Injury Notices: Labor Statistics Reports; Death Notices

A. Notice to Employee

B. Employer, Labor Statistics and Research, OSHA and Doctor Reporting Requirements

C. Notices Required Upon Death of Employee

VI. Injury Prevention Programs

VII. DWC Audit and Penalty Authority

A. AD Audit Responsibilities

B. Claim File and Claim Log Maintenance

C. Claim Log Maintenance

D. The Audit Process

E. Compensation Due

F. Administrative Penalties: $100 to $5,000

G. Schedule for Administrative Penalties

H. Penalty Assessment, Appeal, and Limit

I. Civil Penalty Procedures

VIII. Anti-Fraud Legislation

IX. Information and Assistance Program

Chapter 15      SETTLEMENTS:COMPROMISE AND RELEASE, AND STIPULATED FINDINGS & AWARD

I. Introduction

II. Compromise and Release Agreements

A. Execution & Approval

B. Judicial Review for Adequacy

C. Legal Effect of C&R

D. Determining Adequacy of C&R

E. Disposition of Lien Claims

F. Setting Aside C&R

G. Death of Worker After Signing But Before Approval

III. Trusts

IV. Stipulated Findings and Award

Chapter 16      CLAIM FILING PROCEDURE, PLEADINGS, VENUE AND DISMISSAL

I. The Employee Claim Form

A. General Points

B. Claim Procedures

C. Time Constraints Upon Employer

D. Presumption of Compensability

II. The Application

III. Service of Process; Default

IV. Venue

V. The Answer

VI. Papers and Other Pleadings