person is injured at work, or suffers an injury or illness which is deemed to be
work-related, in most cases the employees sole remedy will be recovery of workers
compensation benefits. Because workers compensation has been established by the
California Constitution and Labor Code to be the exclusive remedy, the
employee will have no action at law for damages, with very narrow exceptions. Article XIV,
§4 of the California Constitution gives the legislature plenary power . . . to
enforce a complete system of workers compensation . . . and enforce a liability on .
. . all persons to compensate . . . their workers for injury or disability . . . in the
course of their employment, irrespective of the fault of any party.
Division 4 of
the Labor Code, consisting of §§3200-6000, contains the majority of the provisions
related to workers compensation. Every employer, except the state itself, is
required to either be insured for their workers compensation liability or secure a
certificate of consent to self-insure from the Department of Industrial Relations
(§3700); this includes counties, cities and other political subdivisions (§3700(c)).
For a persons
injury or illness to come under the provisions of workers compensation law, the
injury must aris[e] out of and occur in the course of employment
(AAOE/COE), and the conditions of compensation [must] concur (§3600).
seeking compensation must be an employee (§3351), and the person or entity
from which compensation is sought must be an employer (§3300). Although there
are various classes of persons who, by statute (§§3350-3371), are either included or
excluded from the definition of employee, it is presumed that any person
rendering service for another (§3357) is an employee. If the injury
causes death, benefits (§4700) may be recoverable by the deceased employees
At the time the
injury or illness occurs, the employee must be performing service growing out of an
incidental to his or her employment and is acting within the course of his or her
employment (§3600(2)) and the injury must be proximately caused by the
employment. (§3600(3)). Finally, the injury must not be the result of intoxication,
self-infliction, suicide, initial physical aggression, a felony, voluntary off-duty
recreational activity, certain psychiatric injuries or following layoff. (§3600(4-10)).
& medical benefits
payable due to an injury or illness include both compensation and medical benefits.
Compensation benefits include temporary disability indemnity (§4650(a)), permanent
disability indemnity (§4650(a)) and vocational rehabilitation benefits (§4538). Medical
benefits consist of medical, surgical, chiropractic, acupuncture and hospital
disability indemnity is paid when an employee is unable to work due to the work-related
injury or illness. The amount paid is two-thirds of the average weekly earnings
during the period of such disability. (§4653) The payments are subject to a
statutory maximum, currently $490 per week, which varies according to the date of injury
(§4453). These payments continue, without a time limitation (§4656) until the employee
is released to return to work, actually returns to work or his condition becomes permanent
and stationary. Industrial Indemnity Exch. v. IAC (Riccardi), 90 Cal. App. 2d 585,
586-587, 14 Cal. Comp. Cases 2 (1949).
disability indemnity is paid when the injury impairs a workers earning
capacity, or a workers bodily function, or . . . creates a handicap in the open
labor market. (Hanna, Calif. Law of Emp. Inj. §8.01, Rev. Ed. 1999). Permanent
disability may either be total or partial. (§4658).
disability is assessed according to a schedule which takes into account the nature of the
injury, the employees occupation and the employees age. (§4660) A percentage
number is determined between one and 100. If the percentage is less than 100, the
disability is partial: if it is 100, then it is total. Certain disabilities, such as
blindness, are presumed total (§4662). The
weekly amount paid is also two-thirds of the average weekly earnings, but is
paid only for a period of time determined by a schedule wherein each percentage point of
disability allows a specified number of weeks. This also is subject to a statutory
maximum, which varies according to the date of injury and the percentage of disability and
is currently as high as $230 per week. (§4659)
rehabilitation benefits are provided when the employee is determined to be a qualified
injured worker,(§4638(a)), a status where the employee meets the requirements of
both medical eligibility and vocational feasibility. (§4635).
Medical eligibility is when the employee, as a result of the injury, is
incapable of engaging in his or her usual and customary occupation or the position
he or she was engaged in at the time of injury. (§4638(a)(1)). Vocational
feasibility is when the employee can be reasonably expected to return to
suitable gainful employment through the provision of vocational rehabilitation services.
(§4638(a)(2)). Benefits include a weekly maintenance allowance, necessary additional
living expenses, and costs of the program itself including counseling fees, training
costs, tuition, etc., up to a maximum of $16,000 total (§139.5(c)).
benefits are defined as medical, surgical, chiropractic, acupuncture and hospital
treatment and include, but are not limited to: nursing, medicines, medical and
surgical supplies, crutches, and apparatus, including orthotic and prosthetic devices and
services. Any of these which are reasonably required to cure or relieve from the
effects of the injury shall be provided by the employer. (§4600). The employee may
designate a treating physician in advance; if not, the employer retains control of medical
treatment for 30 days following the date of injury. (§4600). Following the 30-day period,
the employee has the right to change treating physicians. The employer may petition the
Administrative Director of the Division of Workers Compensation (DWC)
for a change of physicians, on the showing of good cause. (§4603). There are no
deductibles or maximum values imposed on the type, duration or cost of the treatment; the
employer must pay medical charges within 60 days of receipt; if the employer contests a
bill it has only 30 days to object. (§4603.2). The
medical provider may file a lien for any unpaid charges (§4903), but is not permitted to
bill the employee. (§3751(b)).
employer receives notice that an employee has or may have sustained an injury,
a claim form and notice of potential eligibility must be provided to the
employee within one working day if the injury results in lost time beyond the date
of injury or requires medical treatment beyond first aid. (§5401(a)). The claim form is required to be completed by the
employee and returned to the employer. (§5401(b)). The employer, usually through their
insurance carrier, has 90 days within which to accept or reject liability. If liability is
not rejected within the 90-day period, the injury is presumed compensable. (§5402).
If liability is
rejected, or if, at a later time, either the employee or the employer dispute whether the
employee is eligible for benefits, the aggrieved party may file an Application for
Adjudication of Claim with the Workers Compensation Appeals Board (WCAB). (§5500).
The application generally must be filed within one year of the date of injury, although
various limitation periods apply depending upon the particular benefit sought. (§5405).
The specific procedures applicable to proceedings before the Workers Compensation
Appeals Board are contained in Title 8 of the California Code of Regulations, in §§10300
through 10999 and are collectively designated Workers Compensation Appeals Board
Rules of Practice and Procedure (Rules). Disputes regarding medical
eligibility for benefits are resolved by the use of medical examiners. The medical-legal
procedures, which are set out in §§4060 through 4068, involve the use of qualified
medical examiners (QMEs).
A physician may
be certified as a QME if the physician has met certain eligibility requirements to perform
evaluations of workers compensation injuries. If the employee is not represented by
legal counsel, the employee must select a QME from a randomly generated list of three
physicians provided by the DWC. If both the
employee and the employer are represented by legal counsel the parties may concur on a
single agreed medical examiner (AME) or each select a QME.
evaluations have taken place or, in the case of disputes regarding non-medical issues
(e.g. AOE/COE), when the issue is ready for hearing, the party desiring a hearing before
the WCAB must file a Declaration of Readiness to Proceed (DOR) wherein the party certifies
that it is ready to proceed to hearing and has made an effort to informally resolve the
disputed issue(s). (Rule 10414).
A party, for
good cause, may object to the DOR. (Rule 10416). The WCAB will then assign the case to a
Workers Compensation Administrative Law Judge (WCALJ) and set a date for a Mandatory
Settlement Conference (MSC). Discovery closes at the MSC and evidence not obtained or
disclosed shall be inadmissible and witnesses not disclosed may testify except upon a
showing of good cause. (§5502(d)(3)).
If the case is
not settled at the MSC, a hearing is set. At the hearing, witnesses and evidence may be
presented. The burden of proof is on the party seeking to prove affirmatively an issue or
assert an affirmative defense. (§5705). The WCAB is not bound by the common law or
statutory rules of evidence and procedure in conducting the hearing (§5708) and
no informality in proceeding shall affect the validity of a WCAB decision.
(§5709). Follow-ing the hearing, the judge
will issue a Findings and Award if benefits are awarded. If benefits are not
awarded, a Take Nothing order will be issued.
A party has 20
days from the date of service of the award or order to file a Petition for
Reconsideration. (§5903). There are five bases for reconsideration: 1) that by the
appeals board or the workers compensation judge, the appeals board acted without or
in excess of its powers; 2) fraud; 3)
that the evidence does not justify the findings of fact, 4) discovery of new
material evidence or; 5) that the findings of fact do not support the order, decision, or
reconsideration, an aggrieved party may file a petition for a Writ of Review with the
Court of Appeal within 45 days after the filing of the order, decision, or award following
reconsideration or after a petition for reconsideration is denied and subsequently with
the Supreme Court (§5950). However, no other courts, except the Supreme Court and the
Court of Appeal have jurisdiction with regard to decisions of the WCAB. (§5955.)
Californias workers compensation system is a complex, multi-layered statutory
scheme for the provision of benefits to California employees, an enormous amount of
statutory, regulatory and case law has arisen around it. Fortunately, the practitioner has
many resources available to assist in navigating the maze of workers compensation
The State Bars
Workers Com-pensation Section, through standing committees, seeks to promote better
legal practice, education and legislation affecting workers compensation. It reviews
proposed state legislation and regulatory rules, and make recommendations to the authors.
Section membership is currently 2,200 members. The purpose of the section is to serve our
members, workers compensation practitioners, and the people of California by
promoting an efficient and just compensation delivery system.
publishes the Workers Compensation Quarterly newsletter and offers classes at its
own Spring and Summer Education-al Conference as well as the State Bars Annual
Meeting and Spring and Fall Section Education Insti-tutes. The section also has a web page
resources include the California Applicants Attor-neys Association (CAAA) and
the California Workers Compensation Defense Attorneys Association. They can be
accessed at caaa.org and cwcdaa.org.
publication side, Hanna, Calif. Law of Emp. Inj. §8.01, Rev. Ed. 1999; Herlick,
California Workers Compensation Law; Herlick,
California Workers Compensation Handbook are very informative resources. Soon to be
published is a brand new book covering workers compensation practice from the
Continuing Education of the Bar (CEB.)
Patricia A. Higa is an attorney with
Pacific Gas & Electric and a member of the Executive Committee of the Workers
Compensation Sec-tion of the State Bar. William E. Malecki is an attorney with State
Compensation Insurance Fund, a certified specialist in workers compensation law and
a member of the Executive Committee of the Workers Compensation Section of the State