Workers’ Comp Case Law Review

California Workers’ Compensation Case Law Review

As part of my efforts to help injured workers and their representatives, I am starting a case law review which shall contain weekly or bi-weekly discussions of up to the minute decisions from the WCAB.

Whether you are an injured worker seeking guidance on a particular issue or an attorney trying to hone up on the law, these case reviews will provide you with valuable information about the inner workings of the workers’ compensation system.

If you have questions about the material or want to discuss the concepts further, please feel free to contact me at jack@sdworkcompattorney.com or 619.338.9012.  If you are an injured worker, I provide free consultations on any topic or issue that may come up in your case.

Also, if you want to read the full case being outlined, you can subscribe to the Work Comp Central Panel decision service and get close to 100 Panel decisions every month.  You can type in the ADJ number (case number) into the search engine to get the full decision on your computer.

Preliminary Discussion

As a preliminary discussion, the Department of Industrial Relations is the State entity responsible for administering the workers’ compensation system in the State of California.  You can obtain a great deal of information from their web page at: http://www.dir.ca.gov/dwc/eams/eams.htm.

There are approximately 26 local offices of the Workers’ Compensation Appeals Board throughout the State of California.  Each of these offices employs workers’ compensation judges (WCJ’s) to decide disputes which may arise between the injured worker and the insurance company.  If either of the parties disagree with the decision of the WCJ, he/she can appeal to the Appeals Board in San Francisco.

There are two main vehicles to reach the WCAB in San Francisco.  If the party is appealing a final order, the party must file a Petition for Reconsideration within 20 days of the WCJ’s decision (extended by 5 days for service by mail).  If the WCJ’s decision involves an interlocutory order (i.e. a procedural order which does not determine the substantive rights of the parties) the order must be challenged by a Petition for Removal.

An example of a substantive order which merits a Petition for Reconsideration is a decision that the worker did not injure herself at work.  In contrast, an example of an interlocutory order would be an decision that the worker is entitled to see a different doctor than the one requested by the insurance company.

All the decisions presented here have been appealed from the local WCAB courthouse to the San Francisco Appeals Board.  Once it gets to San Francisco, the case is assigned to a three member panel of commissioners who will decide the issue.

Ramos v. Troy Lighting (ADJ2231165)

The first case being discussed today is Ramos v. Troy Lighting.  In that case, the insurance company wanted to dismiss the workers case due to lack of prosecution.  The WCAB cited to WCAB Rule 10582.  You can find all these rules online or go to the law library.

8 California Code of Regulations [CCR] 10582 states that “Unless a case is activated for hearing within one year after the filing of the application for adjudication… the case may be dismissed after notice and opportunity to be heard.  Such dismissal may be entered at the request of an interested party or upon the Appeal Board’s own motion….  A case may be dismissed after issuance of a ten (10) day notice of intention to dismiss and an opportunity to be heard.”

When dismissal of a case is sought by a defendant, WCAB Rule 10582 also requires that defendant first send a letter mailed to the applicant and, if represented, to the applicant’s representative more than 30 days before the filing of the petition for dismissal and then attach a copy of that letter to the actual petition when filed at the courthouse.

In Ramos, the WCAB vacated a dismissal order because the insurance had not properly notified the worker.

The takeaways from this case are:

(1) open your mail to make sure you are not being served with notice of an intention to dismiss your case,

(2) communicate with the insurance once a month – or – if represented, with your attorney once a month to make sure they don’t think you have abandoned your case, and

(3) always let everyone know if there is a change of address.

I am presently helping a worker whose case was dismissed because all the notices were sent to an old address.  If the insurance can show that the worker never told his old attorney about the address change, the Judge may find that it is the worker’s fault that his case got dismissed!

Mitchell v. City of Los Angeles ADJ10591383

The next case we are discussing today is Mitchell v. City of Los Angeles.  Here, the defense attorney signed a settlement stating that the worker would get benefits based on the rates in place at applicant’s date of death 2015 instead of applicant’s date of injury 2002.  In 2015 the death benefit was $250,000.00; in comparison in 2002, the death benefit at $125,000.00.  The Judge approved the settlement at the $250,000.00 amount which had been signed by all parties.  Once the insurance found their mistake, they tried to have the settlement “undone”.  The WCAB held that there was no good cause to “undo” the settlement.

This case teaches us that is critically important to read the settlement you are signing and make sure you understand what it says.  Once the WCJ approves the settlement, it is very difficult to get it overturned.

Many times I have workers call me who are unhappy with the settlement they had signed.  Sometimes they say that it was not explained to them properly or that their prior attorney scammed them into signing something that they did not intend to sign.  I usually tell these people that it’s too late.  All the questions about the settlement should have been discussed prior to signing the documents; once the ink dries it’s too late to come back to court with “buyer’s remorse”.  If the attorney actually scammed the worker, he/she should be reported to the State Bar of California at:

http://www.calbar.ca.gov/Portals/0/documents/Regulation/2015_ComplaintFormENG0915-r.pdf

 

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