Fundamentals of Work Comp Law - Part 4

Saturday, March 15, 2003 | 0

The following article is the fourth in a series for attorneys and other professionals just getting started in workers' compensation. The first article reviewed the history of workers compensation in CA, and provided an overview of the system framework. The second article reviewed benefits for temporary and permanent disability. Article three reviewed death benefits, penalties and provided an overview of benefit rates.

Authors Richard Owen and Harold Greene have graciously permitted the republication of their outline from the annual class on workers' compensation they give to the CA State Bar Section Education Institute. Though not in narrative format, workcompcentral editors felt the material to be of excellent educational quality in present form and are proud to publish it here.

I. Workers' Compensation Appeals Board and Local Offices of Workers' Compensation Judges/Referees:

A. Jurisdiction of Workers' Compensation Appeals Board [WCAB] (California Const. Art. XIV, section4; Labor Code sections 111-115, 5300-5317; WCAB Rules of Practice & Procedure, Rules 10300-10999):

B. Workers' Compensation Judge/Referee [WCALJ] (Labor Code sections 27; 123.5-123.6; Rules 10348-10353: C. Compare Division of Workers' Compensation [DWC] (Labor Code sections 110, 111, 124-129.5

II. Employee's Claim Form for Workers' Compensation Benefits [DWC-1] (Labor Code section 54015401; Rules 10116-10118):

A. When Given: Within 1 working day of knowledge (Labor Code section 5401(a)); See also Rule 10119 for additional duties of a claims administrator to provide a DWC 1.

B. Contents: ". . . name and address, social security number, the time and address where the injury occurred, and the nature of and part of the body affected by the injury." See Rule 10118) for the DWC-1 form.

C. Effect:

1. Did not exist before 1/1/90.

2. 1/1/90-12/31/93: Establish WCAB jurisdiction over claim.

3. 1/1/94: Formal notice to employer but not jurisdictional act for WCAB.

4. Delivery of completed Claim Form to employer starts time periods running for payment of benefits, penalties, etc.

III. Applicant's Attorney Disclosure Form (Labor Code section 4906(e); Rules 10134-10135.1): "At the initial consultation, an attorney shall furnish the employee a written disclosure form promulgated by the administrative director which shall clearly and prominently describe the procedures available to the injured employee or his or her dependents. . . ." The executed form shall be sent to the employer, the insurer, or third party administrator within 15 days of its execution. See Rule 10134 for the form required (DWC-3)

IV. Information Request/Response form (repealed): Statutory authority for these forms, Labor Code sections 5401.5 and 5401.6, was repealed effective 7/16/93. But Rule 10987.3 continues forms in effect for 1/1/90-12/31/93 date of injury cases. As a practical matter, however, these forms are no longer in use.

V. Delay in Decision:

A. 14-Day Rule (Labor Code section 4650(a)): Employer/insurer must start paying benefits within 14 days of knowledge of injury and disability; automatic penalty unless employer/insurer sends delay in decision letter or the injured worker has not filed a DWC-1 with the employer.

B. 90-Day Rule (Labor Code section 5402): Injury is presumed compensable if the claim is not denied within 90 days of receipt of the DWC-1; such presumption is only rebuttable by "newly discovered" evidence (See State Compensation Insurance Fund v. WCAB (Welcher) 37 Cal.App.4th 675, 60 CCC 717 (1995) and cases cited therein; State of California v. WCAB, 62 CCC 304 (1997)). Also see a good discussion of the 5402 presumption when applied to a death claims following the employee's admitted inter vivos claim in the unpublished case Farmer's Rice Cooperative v. WCAB (Dias) 65 CCC 11 (2000 unpublished). However, the 90-day presumption does not apply to the threshold issue of employment (Bryant v. Dee's Liquor Store, LAO 694479, 60 CCC 601 (WCAB en banc, 1995)), nor does it apply to a psychiatric claim when the injured worker does not satisfy the minimum 6 month employment requirement of Labor Code section 3208.3. See James v. WCAB, 55 Cal App 4th 1053, 62 CCC 757 (1997). The presumption is waived if not raised as an issue at the MSC and at trial. See Jobity v. WCAB, 62 CCC 978 (1997 W/D); Calif. Comp. Ins. Co. v. WCAB, 62 CCC 961 (1997 W/D).

VI. Dismissals:

A. Dismissal of inactive cases:

1. Dismissal of Claims Forms (DWC-1) filed for dates of injury 1/1/90 and 12/31/93 (Labor Code section 5404.5, Rule 10120): Inactive (defined in Rule 10120(e)) for 180 days; then personal service (CCP sections 415.10 et seq.) of the defined Notice on the injured worker with a copy being mailed to the attorney of record, if any. If the injured worker does not file an application with the WCAB within 180 days of such personal service, the claim form is dismissed by operation of law.

2. Dismissal of Applications for dates of injury before 1/1/90 and after 1/1/94 (Rule 10582): Inactivity for 1 year, then a 30 day "pre-dismissal" letter to the injured worker with a copy to his/her attorney followed by a Petition to Dismiss filed at the WCAB after the expiration of the 30 days. Any reply to the "pre-dismissal" letter must be attached to the Petition to Dismiss.

B. Dismissal for Failure to Appear (Rule 10562): If a party with notice of hearing fails to appear at such hearing, the WCAB may dismiss the application after issuing a ten (10) day notice of intention to dismiss.

C. Dismissal by Applicant's Request and Other (Rule 10780): Except as provided in Rules 10562and 10582, dismissal at the request of the employee shall issue forthwith; all other requests for dismissal shall only be considered after a fifteen (15) day notice of intention served on adverse parties to show good cause to the contrary. Self-executing orders, i.e. orders with language rendering the order null and void if objection made within a specific time limit, are abolished effective 1/1/2003. See new Rule 10439.

VII. Moving a Case forward to a Hearing:

A. The different procedures for cases with dates of injury between 1/1/90 and 12/31/93 - "window period cases" - and all other cases, i.e., with dates of injury before 1/1/90 and after 12/31/93 has been abolished under new Rule 10400, effective 1/1/2003. All cases, regardless of date of injury are commenced by the filing of an application, a duly executed compromise & release, or a stipulation with request for award. Rule 10400.

The next article in this series will review further rules of procedure from selecting venue to the beginning of trial.

Richard D. Owen is Sr. Staff Counsel with State Compensation Insurance Fund supervising a legal unit comprised of 16 litigation attorneys and 14 clerical support, and is responsible for training/educating attorneys for SCIF in Northern and Southern California. He can be reached at rdowen@scif.com.
Harold L. Greene is an Attorney at Law with the offices of Greene and Weinberger in Simi Valley, CA, and has been a certified specialist in workers' compensation law since 1974. He can be reached at haroldlgreene@hotmail.com.