Sample of Text to convert
EXCEPTIONS TO ERR FOR ECONOMIC/CONTRACT DAMAGES
At will employment presumed.
Implied-in-fact and term not to terminate without good cause overcomes at-will presumption found in 2C2922.
No breach of conduct for public EE's because employment held by statute.
EFFECT OF SETTLEMENT
Compromise and Release Agreement [C&R]
(1) If EE settles a WC claim --- > barred from filing civil suit on SAME FACTS
(2) If Civil damages go beyond --- >presents triangle issue
Depending on language of first settlement
(3) C&R typically has general release language (Jefferson vs CA Department Youth Authority)
Claxton vs Waters distinguished --- > standard pryoritned release language did NOT release EEs civil action under FEHA but only those within the scope of WC.
Release C &R form only realses WC claims.
EE & EK can settle EC during civil settlement ONLY if WCAB approves (LC5001) --- > conditional settlement
(1) So WC settlement invalid until approved by WCAB
WCAB can’t compel EE to execute a C&R even if EE has agreed to it in her Global Settlement (in civil court)
Can only determine issues and issue awards.
CIVIL REMEDIES AGAINST CO-EMPLOYEES
EE’s treated like ER except:
EE not liable directly or indirectly. Co-EE have narrower immunity from lawsuits form ERS.
SCOPE OF EMPLOYMENT
Whether Co-EE was acting within scope of employment involves many factors:
(1) Conduct authorized by ER (Explicitly/Implicitly)
(2) Nature of employment
(3) EE acting in discharge of job duties?
(4) Conduct occurred during performance of services for the benefit of ER (directly or indirectly?)
(5) Conduct, though not authorized E or I was an incidental event connected to assigned work?
(6) Other factors in addition to time and place of Act.
Scope of employment (360’) ≠ “Arising out of and in the course of employment (3600)
ER not liable for EE’s injury caused by Co-EE UNLESS Act has Nexus to his work (within scope of employment)
(a) However, ER may be responsible for intentional acts of managerial EEs where NEE willfully, physically assaulted an EE (LC 3602(b) (i))
PARENT COROPORATION
If smaller corporate acts as corporates as a separate and distinct business, entity, Parent Corp may have T or T liability for injury sustained by EE worker, for in smaller corporations
(a) (3rd party for t & casor)
Not so with subsidiary corporations.
Private doctrine expanded except where hirer affirmatively contributed to contractors EEs injury.
(a) Or if hirer doesn’t fully delegate the task of providing safe work environment but actively participates in how job is done (A & contractor)
Non-delegable duties doctrine.
(a) E.g. Inherently Dangerous Activity --- > 3rd parties
Uninsured Employers Benefits Trust Fund
Self-Insurer’s Security Fund
SUBROGATION
ER/Insurance/SISF/UEBTF have subsequent rights
ER can recover from 3rd party fort teaser whether or not EE files claim.
(a) EE can’t recover twice (WCAB & 3rd Party)
(b) Only ER can recover from 3rd Party
ER can sue 3rd Party separately, join EE’s suit or put a lien on EE’s awards.
EE as ER board by 2-year PI SOL that runs from Date of Injury
SOL for Med Malpractice is 3 years after injury or 1 year after P discovered injury or should have discovered by reasonable diligence.
Burden of proof: ER must show:
(a) D was negligent
(b) Negligence was Proximate Cause of EE’s injury
(c) Amount of D’s fort liability for injury
ER recovery limited to her WC payment to any salary/wages/pension/other emolument passed to EE or dependants.
EE may recover more – e.g. para a suffering
ER recovery limited to damages proximately caused by injury
SETTLEMENTS/LIENS/CREDITS
ER settlement of its annual claims for past benefits, ER waiver, or failure to assert DOES NOT affect ER right to credit unless explicitly waving future credits.
CHAPTER 4: EMPLOYMENT
No employment relationship --- > no WC benefit
Employer defined (LC 300)
Includes legal representation of deceased ER
If corporate not insured for WC --- > (1.) Parent Corporation (2.) A substantial shareholder of corporation or Parent Corporation will be Jointly and Severally liable to UEBTF for benefits paid to EE.
Sub-shareholder owns ≥15% of total value of all classes of stock (if not stock ≥15% of beneficial interests in the corporation) LC 3717 (b)
Sponsor NOT an ER – 310 (a)
Private and non-profit sponsoring a person doing community service --- > not ER (31001 (b)
Not so with public ER’s.
Employee Defined (LC 3351)
Not every person in service of an ER under any appointment or K or hire or apprenticeship, Ex or Im, oral or written, whether lawfully or unlawfully employed.
Person providing purely gratuitous service doesn’t have consideration --- > NO EMPLOYMENT relation for purposes of WCA (e.g. volunteers)
Employee under K of hire elements:
(a) Consent of parties (objective, external behavior)
(b) Consideration
(c) ER Control over EE’s activities/manner/methods of work
(d) Oral or written
(e) Express or Implied
Burden on ER to shower otherwise by Preponderance of Evidence
General presumption that any person “in service of another” is an EE
Welfare recipient who worked on condition to received welfare --- > EE of County for WCA purposes.
When worker misrepresents being licensed --- > stopped from claiming EE
Post termination injury
EE injured while she’s leaving premises after being fired – still an EE for WCA purposes.
Terminated EE comes back to pick up her last check and gets injured --- > EE.
EE “engaged in activity that’s contemplated by the Employment”
Conclusive presumption: Unlicensed person performing working requiring a license is an EE (not including contractor)
Rebuttable Presumption: Worker performs services requiring a contractor’s license is an EE.
BPC7031 (a) --- > Substantial Compliance with license requirement.
STATUTORY INCLUDED EE’s
Aliens (resident or non-resident) --- > LC 3351 (a)
Minors (3351 (a)) --- > regardless legally/illegally employed
50% increase in WC awards, unless EE lied about being over 15 (take ID) – LC 4551.
Paid public officers (3351 (b)) --- > pay not necessarily in cash
Private corporation Officers (3351 ©)
(a) Must under services to corporation at time of injury
(b) Must be paid for services
Paid requirement met even if only EE’s expenses related to services are covered --- > don’t need salary.
Residential EE’s --- > duties must be personal and NOT in the course of the trading business, professional or occupation of ER.
EE must work 52hours or more and earn $100 or more during 90 days prior to injury.
Residential dwelling is a completed dwelling/building sufficiently completed to be occupied as residence.
E.g. domestic servants, baby sitters, part time gardeners
If personal --- > covered by Homeowner’s Policy. If business covered by ER’s WC policy
Does not apply to full-time, permanent domestic EE’s
If 52 hours and $100 requirement not met- injured can still file a Civil Suit, which can be much more
Coverage for domestic EEs who met both 3351 (d) and 3352 (h) is secused by getting insurance policy containing Comprehensive Personal Liability coverage such as Homeowner’s or Renter’s Policy.
If Homeowners is covered --- > injured files WC claim
If not covered, injured EE can file Civil and WC
Uninsured ER (compare 3352 (a) and 3715 (b))
To punish uninsured ER’s EE can claim Civil and WC
If EE meets 3715 (b) requirements --- > presumption of negligence in civil action against ER & recourse to UEBTF if Homeowner can’t pay (3708)
LC 27505 does not preempt LC 3352 (a)
PARTNERSHIPS AND LLC’s
Members generally not considered EE’s so excluded form WC system
However, Partner can be P/EE if:
(a) Performs services for partnership or LLC and
(b) Receives “wages irrespective of profits” from business
General partners and managers can be covered by WC by Election (4151 (a))
When workers associate to work on a particular project for another person --- >considered EE’s regardless of whether they are out as EE’s, IC’s, etc.
(a) 3360 doesn’t apply to ongoing projects
STATE PRISON INMATES
LC3351 (e): “All persons incarcerated in State Penal or Correction Institutions” are EE’s for WC purposes while engaged in assigned work or employment --- > or employer in work performed under K (e.g. Abruti’s PI)
LC3370: State prisoners entitled to WC benefits if injury AOE/COE and death benefits if injury cause death.
Buying a comprehensive liability insurance policy may/will be viewed as the ER elevating to come under WC law (LC 4151 (a))
Remuneration: Money paid for work or service.
But compare with earlier volunteers example where reimbursement for travel/meals WAS pay --- > was EE
Stricter standard for church related volunteers for public policy reasons.
Volunteers
If V has “exercise of will and freedom from any compulsion that constrains V’s choice then V is NOT EE (charitable)
E.g. NOT charitable if V serves to receive another job training necessary to get diploma.
“Necessities of life” or “Aid and Substance” are not based on hours worked --- > no pay --- > not EE.
Person found to be EE be she received mileage and $13 per diem
Per diem found to be remuneration
Meals, transportation, lodging, reimbursement for incidental expenses --- > not remuneration
INCIDENTAL CONTRACTORS
It is not EE but self-employed individual
Hirer not ER but principal
Affirmative Defense by Principal to WC claims (ER has burden to prove EE is usually IC)
Test: P controls result only, NOT the means.
Emphasis: Right or potential power to control the means rather than actual control
Other factors: Principal’s right to discharge at will without cause
Rest Second Agency Factors:
(a) Whether EE/IC is engaged in a distinct occupation/business
(b) Whether to the kind of occupation (in the locality), work is done under discretion of Principal or without supervision.
(c) Skills required by particular occupation
(d) Whether Principal or worker supplies the instrumentalities, tools, and place of work.
(e) Length of the services performed.
(f) Method of payment, whether by time or by job
(g) If work is part of regular business of Principal
(h) Whether parties believe they are creating a EE/ER relationship
Compare with LC2750 5 factors (similar)
Effect of contract is “significant” BUT NOT dispositive
Courts look at totality of circumstances.
CONTRACTOR SECTION (cont.)
If A hires unlicensed contractor --- > injured contractor can claim EE (matter of Law)
If A hires a licensed general contractor, who hires an unlicensed sub-
contractor, who hires workers
Sub’s workers can claim EE of General Contractor
Even if sub mis-represents being licensed, his workers can claim EE statues against general contractor because worker has not privy with lying sub-contract
Conflict between 2750 5 with 3352 (h)
Person may be conclusively presumed to be EE under 2750 5 BUT be excluded under 3352 (h)
3352 (h) >- (a) + 3706: EE of unlicensed contractor
3352 (h) excludes applicant from being homeowners EE only for purposes of WC
This means A may still be its EE in Civil Suit (compliance with Cal/OSHA)
Violation of Cal/OSHA will not give rise to presumption of negligence --- > app must prove negligence
ELECTION OF COVERAGE
LC4150 – LC 4157
ER may elect WC by (i) Insuring against liability for company or by (2) filing with the Admin Director a statement to the effect that ER accepts the company provisions of their division (lasts 1 year, continues in successive terms unless ER gives notice to withdraw minutes 60 days prior to expiration)
EE may refuse the WC (4154) must give notice at time of hire or within 5 days after ER files her election.
Under 4155, the State, each county, city, district, and public agency thereof and all state institutions are conclusively presumed to have elected to come under the WCA.
CONCURRENT EMPLOYMENT
When EE works 2 or more jobs --- > the WC rate is taken from the aggregate at earnings from employment.
Unlike Joint employment in concurrent there is NO connection between EE’S various, ER’s
Elements of concurrent employment:
1. (1) ER’s act independently of each other
2. (2) Separate by individual employment of EE by each,
3. (3) EE’s duties to serve one not dependent on her corresponding duty that serve other.
Liable ER can’t sue concurrent ER seeking joint employment.
1. (1) Unless EE claims cumulative trauma (CT)
JOINT EMPLOYMENT
Joint employment factors:
1. (1) Joint hiring of EE
2. (2) 2 ER’s engaged in joint enterprise for mutual benefit
3. (3) EE engaging in common work both ERs at time of injury
Where joint employment found --- > ER’s are J&s liable
If one ER uninsured – EE may recover WC benefits jointly and severally against both and civil suit against uninsured.
GENERAL AND SPECIAL EMPLOYMENT
Where ER1 tends to be another ER2 and both have the right to exercise certain powers of control over EE --- > ER1 is general, ER2 is special
Jointly by severally liable
Under 3302, a temporary employment agency, employment referral service, labour contractor or other similar entity supplying workers to licensed contractors is SOLELY responsible for workers WC.
IC 11663: General ER insurer solely liable for entire cost of WC if EE on general ER’s payroll.
If EE on SER’s payroll --- > SER’s insurer is solely liable.
But GER & SEK still J&s liable.
CHAPTER 5: INJURY
Specific injury occurs as a result of one incident or exposure that causes disability or need for medical treatment.
Cumulative injury occurs as repetitive mentally and physically traumatic activities extending over a period of time, the combined effort of which chooses any disability on the need for medical treatment.
4 types of injury:
1. (1) S1 “Effects of which are immediately realised or relatable”
2. (2) S1 with latent effects
3. (3) C1 “continuous cumulative traumatic injuries suffered as a results of a number of minor strains over a period of time”
4. (4) C1 resulting from continuous exposure to harmful substances, e.g. silicosis.
Purpose is to compensate for the disabled workers diminished ability to compete in the open labour market NOT to compensate for every work related injury.
Incident must be the cause of injury or need for medical treatment
Injury requires (1.) disability or (2.) need for medical treatment
AOE/COE --- > arising out of employment in the course of employment
Connection between injury and employment need not be the sole cause, it’s enough if it’s a contributing cause.
Injury to attributed member:
1. (1) Substitute for portion of body (fake leg)
2. (2) Mere aid to portion of body
a. Unless damage to aid incidental to injury causing disability (e.g. dropping glasses vs. punching glasses into someone’s eyes that causes blindness)
Aggregation: If industrial injury aggregates pre-existing condition ER must compensate be eggstall plaintiff role (TD, Med)
Appointment (only PD) – ER responsible only for the Patron of PD that results from the industrial injury
Role changed after 2004 – SB899
New Appointment Rule (4663)
Requires appointment to any and all conditions that can be shown by substantial medical evidence that the non-industrial pathology has caused the PD.
Even if pre-existing pathology was asymptomatic and not labor-disability.
So if industrial injury aggregate pre-existing – ER liable for full temp disability, medical care, death benefit, and voucher --- > even if includes injuring small part.
However, be of apportionment --- > same not true for permanent disability (post 2004)
AME – Agreed Medical Examiner (Joint Signature)
Date of cumulative trauma
Date EE (1.) first suffered disability and (2.) either K or CK that employment cause injury – assemble difference.
COMPENSABLE DISABILITY
(1) PD compensates both Actual Incapacity to work and for Physical Impairment of body which may or may not incapacitating.
(2) TD is replacement of lost wages be applicant too hurt to continue working.
No TD fearing the first 3 days EE misses work.
Modified work duties, insufficient to trigger TD because actual wage loss required.
CT knowledge burden on ER to show EE (unclear word)
Date of injury vs Fact of injury
App. Exposed and needs medical care, but not disability yet
EE may receive medical care at any point it’s necessary even though there is no disability ( therefore no date of injury)
So EE can get medical pay for CT before the onset of any Compensable Disability.
LC 3208.1 – a CT occurs as a result of “repetitive mentally or physically traumatic (unclear word) extending over a period of time, the combined effort of which causes any disability OR need for medical treatment”
No merging or multiple SI’s or CI’s.
Sometimes EE’s make CT claims (coinciding with their plan to retire)
Defence may try to reduce liability by claiming they are SI’s (because (1.) SOL will bear some of the older SI claims or (2.) PD should be split between SI & CT or (3.) the rate of benefits should be lower for (unclear word) injuries)
Disability (for purposes of 58) means lost time from work that would result in TD or PD.
Resulting need for medical care without disability NOT enough
“Medical Injury” Injuries that don’t result in compensable disability –can later be merged into CT when they eventually cause a corporate disability.
Multiple CI’s or Just one?
(1) Whether EE received continued medical care
(2) Whether there distinct periods of TD
(3) Whether injuries exposure was similar throughout COE
(4) Whether periods of disability were caused by separate specific events
Multiple injuries from 1 exposure
Settlement of CT does NOT bar a claim of related but distinct injury that arose from same period of employment.
Determining ER/Insurance liability
LS 5500.5 which relies on S5412 for injury date
5412 helps EE with SOL problems
5500.5 helps EE by ensuring someone pays when it injury date is years after EE’s last employment under 5412 (goes back to last employment where injuries exposure happened) OR within 1 year of injury date, whichever is earlier.
Division of Liability Among ER’s (JG’s)
As long as causation is established, liability of ER’s generally based on period of exposure rather than degree of causation.
But WCJ can still apportion L based on the degree of arduousness or herein fullness of cash period of employment.
When EE works concurrently for multiple ERs – L is calculate based on number of hours worked for each ER during the liability period.
NOTE: ER during last year of injurious exposure are NOT automatically liable because there must be causation between employment as injury (AOE)
If no insurance – go back to time when there 3 conditions co-existed:
(1) Employment
(2) Injurious Exposure
(3) Insurance coverage
Fed government has no obligation to have WC in CA even if works in CA – so in case of one long CT – liability for ER and goes to previous one.
ER can require credit for whatever the appointment jets from her federal claim.
It one or more liable carriers per bankrupt – CA Insurance Guarantee Association (CIGA) steps in
It is in the 1st year period there is no other solvent. CIGA pays all, and we don’t go back in time to find the last solvent ER (3rd condition)
Appointment
Carrier won’t assert that it’s only responsible for a part of the PD be other carriers outside of the 1st year period would have responsibility.
Liability for CT or Occupational Disease (OD) can’t be apportioned to previous or subsequent years BUT appointment to non-industrial causes, other SI’s, previous awards, etc. allowed (5500.5 (a))
5500.5 ONLY applies to cause with single CT – NOT to ones with successive injuries.
Courts have actual contrary to this in practice (using 5300 to support their decision)
CONTRIBUTION AMONG DEFENDANTS
5500.5 (b) requires application claiming CT or OD that they may have resulted from more than one employment to state (1.) Names (2) approximate periods of employment when EE was exposed to hazardous or disease or injury.
Ds added after the first hearing will NOT be allowed to participate in Discovery or the proceedings or for F&A
Can only “ascertain from EE or EE’ dependants such into as will enable EK to determine the time, place, and duration of the alleged employment.
EE may elect to collect from 1 specific ER/insurance carrier BUT can’t request that a specific D be dismissed with prejudice.
It only one D pays – can collect from co-D’s during the compensation proceedings afterwards.
App right to development D is not absolute because both WCJ and WCAB can decline the elation on his dissertation
Appellate court wont disturb WCJ or WCAB decision unless clear Abuse of Discretion (e.g. when rationale is clearly erroneous)
App can’t elect a D and joined before first having be D is a spectator liabilities won’t be determined until supplemental proceedings are instated.
ER has 1year following an award or order approving settlement to file petition for contributions (or else it’s lost forever)
Petition for reconsideration does NOT toll or extend the 1st year deadline.
Joinder of co-d is NOT a condition precedent to filing a petition for consideration.
D’s C&R settlement did not BAR him joining co-D’s for contribution apportionment (J&S)
In cases where there has been a C&R in the past, the insurance carrier for a later injury is held liable for all future medical care – without recourse against app or
WCJ’s solution was to figure out what part of the C&R was there to settle medical care – credit against the app – once credit run out then the D for CT was reasonable for all future medical care.
C6409: “any abnormal condition of disorder caused by exposure to environmental factors associated and employment including chronic or acute illness/diseases which may be caused by inhalation, absorption, ingestion or direct contact”
OD is a type of CI – but CT involves consistent physical impact on body where OD involving exposure
CA Supreme Court: OD “occurs as a result of continuous, ten tent exposure to harmful substances”
Examples of OD: Asbestosis, mesothelioma, lung cancer due to asbestos, silicosis due to dust exposure, brain cancer due to petroleum retirement, lung injury from smoke/chemical exposure and hearing loss caused by exposure to loud noise.
Intertrous OD: HIV, hepatitis, TB, leuto-conjectivitis.
Need medical evidence of causation connection between employment and disease.
STD: “Reasonable medical probability” not absolute (unclear word)
Evidence that EE exposed to hazardous substance and medical evidence that hazard caused EE’s injuries/illness MAYBE sufficient if no other possible none employment related sources.
Mere “possibility” that employment caused injury NOT enough
Permanent and stationary status (P&S)
The point where EE has reached medicinal medical improvement, i.e. EE’s condition is well stabilized and ultimately to change substantially in the next year without medical treatment.
NON OCCUPATONAL DISEASES
CA SC said “liability for ND is narrower than physical injuries in work place”
The fact that EE contracts a disease while employed or becoming disabled from national progression of non-industrial disease during employment – not enough to establish causation.
Ailment (e.g. flu, cold) does not become an OD simply because it’s contracted on EE’s premises.
2 main exceptions:
(1.) ND compensable if employment subjects be to an increased risk compared to that of general public.
(2.) ND compensable when the immediate cause of injury is an intervening human agency or instrumentality of employment.
CONDITION OF COMPESABILITY
3600 (a) – Liability against ER exists regardless of negligence when:
(1.) At the time of injury Both ER & EE are subject to WC
(2) At EE performing services growing out of an incidental to her employment and acting within course of her employment.
(3) Injury is proximately caused by employment within or without negotiation.
If injury is AOE/COE – Compensable Injury
AOE is the casual requirement – casual compensation between employments an injury need not be sole cause – contributing cause is sufficient
To determine if a particular act is reasonably contemplated by the employment, courts consider:
Nature of act (2) nature of employment (3) customs as usage of employment (4) terms of K of employment and other factors.
(2) Unless ex/in prohibited – EE’s activities during the entire period of employment are deemed to be AOE.
COE refers to time, place and circumstances under which the injury occurs.
Neither being or ER’s premises nor working during regular hours by dispositive
As long as EE does things that his K EE/IM permits – COE
Resonate: EE working “in furtherance of EE (unclear word)
Generally, it AOE, then also COE
WCAS held that AOE/COE doesn’t require die at the job site or during the actual performance of work
Sufficient that the heavy work done at work caused EE’s heart attack hours later.
Any activity (outside of normal duties) that ER assists EE to do is AOE/COE (as matter of law)
Employee IS performing a service is basically restates the AOE/COE requirement
Parties S/T Labour Cock Provisions
If not, civil suit allowed be an ERR
Proximate cause “unbroken (unclear word) connection between injury in employment or the condition under which EE is required to carry out her work.
PC not identical to PC in common law fort
Test for WC liability broaker that (unclear words)
RESPONDED SUPERIOR
It AOE – The resident pro caused
Burden of protection: preponderance of evidence by EE
WCAB by authority to resolve all conflicts in evidence – its duration can’t be overturned simply because appellate court work have reached a different (unclear word) based on the evidence.
But it facts undisputed, resolution of a Q beams matter of law – not binding them appellate it.
PRESUMPTION OF INJURY
EE mostly ER or injury that required EE to miss work time or get medical care beyond first aid
ER must provide EE of claim form within 1 day of learning about injury
When EE submit clearing, ER can send out an notice delaying WC within in days,
ER by 90 days to investigate claim during which time this benefits are paid, except medical care (limited up to $13,000)
If ER doesn’t contest claim within 90 days, EE injury is presumed to be compensable.
Typically once a pass is Augusted, it won’t be denied later
But sometimes in incase of fraud, it (unclear word) be turned into
Late denial ≈ no denial
ER has been paying EE since be accepted case
Presumption of work related injury (compensable)
Defence CANNOT use ANY evidence on the issue of industrial injury that D could have reasonably obtained within the 90days.
Generally, this is all the D (unclear word)
90 day registration starts when EE fills claim NOT when ER finds out about injury
90 day registration start date exception (Estoppel)
90 day can start from date of ER knowledge, only if
(1) ER knowing that injury is industrial, returns to provide EE a claim form, misrepresented the availability or need for EE to file the claim
(2) EE misled into thinking no form was available or necessary and for that removed fort to claim
(3) Because of reliance on ER, EE suffered some loss of benefits or set bounds as to claim
EE need not show ER deliberately intended to prevent or delay EE’s filing of claim – ER’S negligence is enough.
Filing claim is when EE personally delivers (unclear word) to EK or mails it 1st class or certified.
If 90th day is Sunday, EK has till 91st day on Monday to deny claim
If EE files a civil claim only – the 90th day period is not triggered and ER doesn’t have a duty to provide a claim form to EE.
So D should still timely investigate claims a timely day claim since 90 days of EE filing an app for adjustor
Denial must be in writing
Must notify EE of denial, reasons of denial and EE’s remedies
Notice of denial must be sent after 14 days of decision being made
Letter of denial must be served on all registry line or and all potential (unclear word) can reasonably be identified.
It’s the rejection not receipt to notice by EE that must be upon 90-day period
However, for ER’s safety, he should try to send the Denial letter within 90days (had to prove decision made within 90 in court otherwise)
Even a bad forth denial done within the 90 days will defeat the presumption of compensability.
Will subject ER to fines by state of CA audition
EE files a claim, dies, dependants file death claim
If ER accepted EE’s intervisor, claim, to deny dependent claim, ER must send denial letter
If ER denied intervisor’s claim, death claim is also automatically denied. ER need not send Letter of Denial to dependants.
Overcoming the 90-DAY Presumption (LC 5402)
(1) E’s own testimony may rebut if WCAB finds it incredible
(2) App’s medical reports obtained post 90-day show that the injury is not industrial
(3) AME exam done after 90-day (even if ER accepted claim and paid benefits within the 90-days)
(4) Evidence obtained other 90days if App’s mental and physical impairments are so severe that discovery couldn’t have been completed within the statutory period.
*These 4 examples are not an exhaustive list.
Other scenarios where EE doesn’t cooperate during discovery (page cut off)
INJURY TO MULTIPLE BODY PARTS AND AMMENDED CLAIMS
Where ER finds industrial injury to some parts and not others, ER has no duty to send Letter of Denial
Whether there is industrial injury is NOT a question as to whether a specific body part was injured
Same applies where EE later amends her claim to add more body parts.
§5402 applies to claims of INJURY, not to part of body claimed to be injured.
Denial of entry claim within 90days of Amendment claim does not count as denial of entire claim – the claim itself must be denied within 90days of filing (employers insurance of WAC vs. WCAB (Knoy) 1905)
Reducing Late Denial Collateral Damage
Since ER can’t do much about consequences of late denial – ER can at least accept liability to 1 body part and deny the rest to minimize exposure to benefits owed.
Employment relationship is a condition precedent to using provisions of WC, including 90-day presumption
Even if ER has an Affirmative Defense (e.g. Post Term) ER must deny claim within 90 days
Otherwise can’t use Aft. Defense
LC 3600 (a) (10) doesn’t supersede LC 5402
LC 3208.3 (d) > §5402/§3208.3 (h) §5402
§3208.3 (d) – a claim to psych injury is not compensable if EE has been employed for 5402
(words hidden)
TIME TO RAISE PRESUMPTION IN LITIGATION
WCAB held that APP waived the §5402 presumption if it failed to raise it during trial and he tries to raise it first time during reconsideration
WCAB also told that App’s failure to raise it during HSC waives the presumption
Company A held when the presumption’s underlying conditions are established by the pleadings, stipulations, judicial notice or evidence, the WCAB must adopt the initial assumption provided by presumption
Context: Former Treating Doctor presumption (unclear )
Summary: Can’t raise §5402 during reconsideration to first time, but can raise it at trial for first time (therefor failure to raise at MSC not waiver)
Statutory Defenses to Injury
(1) Intoxication
(2) Self-inflicted injury
(3) Suicide
(4) Initial physical aggressor
(5) Off-duty recreational activity
(6) Conviction of felony or misdemeanor
(7) Post-term non-psychiatric injury
Statutory Defenses to Psych Injury
(1) Requirement of diagnosable disorder
(2) Requirement of Actual events of employment
(3) Registration of Predominant cause
(4) Six-month rule
(5) Post-term psych injury
(6) Food-faith personnel defense
INTOXICATION
ER must prove that: (1.) EE imbibe/ingested drug, (2) EE was intoxicated at time of injury and (3) the intoxication caused the injury
ER must show that EE’s use of specific substance was illegal, not just negligent or improper
Subsequent testing of positive results NOT enough, must show into during injury (e.g. blood test, witness testimony)
Intoxication includes impaired judgment, impaired perception and slowed reaction time
Intoxication, must be a proximate cause or substantial factor in causing injury
When EE drinks alcohol, within scope of employment.
ERR applies, EE can’t bring civil suit as EK
ER can be held liable for injuries proximately caused to members of public by EE’s alcohol consumption in the scope of employment (e.g. office party dranks)
Industrially aggravated or auderated alcoholism is compensable
High strain job causes EE to turn to drinking – becomes an alcoholic –brain liver damage.
SELF INFLICTED DAMAGE
Must be intentional, not merely careless or negligent
WC is a no-fault system, so stupidity is not a bar
Motive is irrelevant (fraud or not)
Suicide attempts compensable if due to “irresistible impulse” but not if voluntary and premeditated.
Standard as with others is preponderance of Evidence and BOP is on ER.
SUICIDE
§3600 (a) (b) – Claim un-compensable if suicide “willful and deliberate”
Irresistible Impulse Exception was broadened
May apply even if EE planned/consulted about it for a long time be the final act may still result from irresistible impulse
Burden of Proof:
(1) Trier of fact decides it industrial injury/exposure was the proximate cause of suicide or merely contemporaneous or coincidental (App must prove but for injury, then would be no suicide)
(2) Once App proves causation – ER must prove that suicide was not “willful or deliberate” and not as a result of an irresistible impulse
e.g. ER can show that EE had an entirely personal motivation/rationale for killing herself
When a legitimate doubt arrives whether EE’s death was accidental/suicide and evidence not definitively WCAB typically fine if residential – compensable
Care should be exercised in avoiding undue reliance on statements obtained from prejudiced witnesses (e.g. friends and family)
INITIAL PHYSICAL AGGRESSOR
Recovery barred only when: (1) Injury arises out of an altercation and (2) EE is initial physical agg.
Distinguished from horseplay
Initial physical aggressor –actual physical contact not required – only physical conduct that first play the other in reasonable fear of bodily harm (real, present and apparent)
e.g. aiming a gun at co-worker
Excessive defensive force doesn’t change initial aggressor
IPA in cases of emergency
EE acting in an emergency situation to protect the interest of ER – IPA typically doesn’t apply
Burden of Proof:
BOP on ER to ID which EE was IPA
If ER can’t prove that injured EE was IPA, EE is entitled to WC
Note: ER’s should interview witnesses not just about who started it, but also the circumstances and reasons for it (e.g. if reason wholly personal, that means not AOE, so not industrial – both EE’s barred)
Altercation must AOE:
If altercation and injury not AOE/COE – not compensable for either EE (not just IPA)
If employer increases or contributes to risk of assault – altercation is work related.
But if EE’s fight over some minor work related issue where the real underlying issue is personal then altercation not work-related.
Assault by ER
§3602 (b) (1) allows EE to bring civil action against ER.
When altercation involves multiple EE’s – ER can request a consolidated hearing with all cases set for trial at once, ER can be assured that he’ll only pay once and EE’s can be assured that at least one of them will be paid.
Judge can review all cases in one hearing and render separate decisions in each case
So possible for no EE to get paid?
Injury resulting from criminal activity
§3600 (a) (8) Bars App recovery who’s injured from activity that results in certain crime convictions – even if activity is AOE/COE
If no conviction, no bar – even if job done is stupid, reckless or criminal way
Injuries resulting in conviction
ER not liable if EE injury “caused by the commission of felony for which EE was convicted”
ER must prove EE convicted of F or M + commission and crime was a contributory factor of injury.
Crime but not conviction
Crime conduct without conviction will only bar company if it constitutes a complete duration from the scope of employment
EE’s serious and willful misconduct may reduce his WC awards but be of “no fault system” not a complete bar.
Crime fully outside scope of employment
Any injuries sustained during the furtherance of crime act that doesn’t directly or indirectly serve ER – not company
Be not AOE/COE
Difference between “Unauthorized departure from COE” and “Performance of duty in an unauthorized manner”
BOP on ER to prove every element of criminal activity
Reasonable doubts resolved in favour of EE
EE may be denied WC benefits even if he avoids criminal prosecution because “beyond a reasonable doubt” is a sticker standard than “by procedurance of (unclear word)
OFF DUTY RECREATIONAL ACTIVITIES
Injuries that result from “voluntary participation in off-duty recreational, social, or athletic activities that do not constitute part of EE” work related duties are NOT compensable.
Compensable when activity is “a reasonable expectancy of, or ex/im required by ER.”
CCR 988 says ER must post notice to EE’s that ER won’t be responsible for an injury due to EE’s voluntary participation in off-duty R/S/A activity.
Failure to notify waives defense.
The “Reasonable Expectancy Test” is viewed as a subject of AOE/COE
(1) Whether EE subjectively believed that his participation in an activity was expected by ER
(2) Whether belief was objectively reasonable
Courts require substantial nekus between ER’s expectations or requirements and the specific off-duty act.
NOTE: ER successful defense can backfire if ER was negligent or reckless in regard to safety to her EE’s because if EE is burial from WC benefits he can bring civil suit for negligence/rublers.
POST TERM DEFENSE
§3600 (a) (10) eliminates ER liability for company for certain claims that are filed after EE termination, lay-off or receipt of notice thereof.
Post-term does NOT apply to psych injuries
Injury non-compensable if claim “is (1) filed after notice of term or layoff including voluntary layoff and (2) claim is for injury that happened prior to term or notice thereof.
Once ER shows 1 & 2, BOP on EE to show post-term defense doesn’t apply by showing up POE that at least one of these conditions apply to alleged injury.
(1) ER was aware of injury prior to Notice of Term
(2) Evidence of injury contained in medical reports before Notice of Term or lay-off
(3) EE sustained specific injury (SI) after notice but before effective date of term
(4) EE sustained OD & CT with date of injury subsequent to date of Notice of Term or layoff.
Termination or Layoff Defined
Company A held that only ER initiated separations, not voluntary EE resignations bar claims under §3600 (a) (10)
Company A silent on resignations that are constructive firings
When separation is NOT a bar (examples):
EE resigns be doesn’t want to drive to new locations, he’s being transferred to § pain from injuries.
EE quit because of embarrassment of failing a written exam
EE quit despite warnings about performance
EE lost job because of policy that 5 consecutive unauthorized absences = resignation.
EE simply abandons his position BUT an EE terminated because of job abandonment may be barred.
Notice of Terms means Actual Notice NOTA constructive
If letter doesn’t explicitly fire or lay off the EE, a “major hint” will suffice (e.g. no more work for you to do here) – actual K
An unpublished decision held that “no pay status” not enough for Actual K of term be person can still be an EE on no pay status.
ER knowledge of injury before termination
Not enough for EE to notify anyone in the company
ER’s knowledge of accident/incident not enough – must know of EE injury
Oral notice to ER enough (ER or person of authority)
CA SC held that EE must notify ER of injury in writing per §5400 to trigger ER duty to provide a claims form per §5401.
OR ER must have K on injury or claim from another source pursuant to LC5402
Level of K giving rise to ER duty to provide a claim form (§5401) is same as level of K under §3600 (a) (10) (A) - both rely on §5400, §5402
In some cases, e.g. where the ER witnesses EE’s accident (and resulting injury) that may be sufficient notice – even if EE doesn’t understand the severity of his injury and e.g. declines to get medical care
If EE files claim but ER fails to provide a notice of benefits and/or send the form to its insurance and authorize medical treatment – SOL will be followed.
Timing of notice is immaterial as long as EE notifies ER prior to Notice of Term/layoff.
EE gives notice to ER immediately prior to being fired even though he knew he was going to be fired – OK.
Even contemporaneous notice is ok.
Evidence of Injury is prior medical records
Medical records need not establish an industrial causation of the injury – only witness of pre-term injury
Post-term medical reports can be used to prove industrial causation.
No clear decision on when medical report show injury to one or several body parts mentioned in post-term claim, but not all.
(a) Factor: Did EE get any treatment prior to Notice of Term?
(b) Injury Subsequent to Notice of Term - §3600 (a) (10) (c) (d)
(c ) says SI compensable if sustained post-term notice but before effective date of term
(d) applies to OD & CT
Compensable if date of injury (per §5412) is after date of term/layoff.
Date is when EE first suffered disability and either knew or in the exercise of reasonable diligence should have known that disability caused by her present/previous injuries.
Once ER establishes post-term defense, BOP shifts to EE to prove the exception §3600 (a) (10) (d) applies by showing that the date of injury specified in LC 5412 is subsequent to date of notice of term/lay
Special Employer Situation
e.g. GER lent EE & SER, SER terminated EE when no more work was available (after EE job injuries) – GER called EE to see if he was available to work elsewhere
Post-term didn’t bar because GER was an employment agency with ability to hire and fire (unlike a payroll company)
PSYCHIATRIC INJURY IN GENERAL
CA allows psych claim without explicit organic components
All psych claims must satisfy the basic conditions for compensability defined in §3600 for industrial injury and additional requirements per §3208.3
§3208.3 requires:
(1) Psych injury limited to Actual Disorder diagnosed in accordance with accepted medical standards.
(2) Psych injuries must be caused by “actual events of employment” to be compensable
(3) The actual events must be in the predominant cause of psych injury, (not just a contributing factor)
Affirmative defenses to psych claims (§3208.3)
(1) Post-term defense
(2) Claims by EE are who have worked for less than 6 months with ER.
(3) Good-faith personnel action defense
3 types of psych injuries (P-M, M-M, M-P)
(1) Physical –Mental is when physical injury causes a psychic trauma or symptoms (aka compensable consequence” psychiatric injuries)
(2) M- M is when psychic trauma causes psychological injury (usually result of work related stress)
(3) M-P is when psychic trauma produces physical injury (e.g. stress – HBP)
While psych claims are subject to a higher standard, the associated injured body parts are not.
Courts have to be very careful against wise-ass applicants that try to take advantage of this by skipping psych and claiming only physical for its lower standards.
Legislative Statute of Amendment §3208.3 was to limit fraudulent psych claims
Review PP 197-199 (McCoy, G-F, Personnel, M-P, Compensability)
Predominant cause
If EE has separately diagnosable psychiatric components not enough to show that only one of the components predominantly industrial
EE psych injury ONLY compensable if he proves that events of employment are predominant cause as to all causes of psych disability takes as a whole
Establishing causation of psych injury RUTS competent medical evidence
Lay territory may support the occurrence of injuries resident that are employment related.
EE can combine industrial factors to meet the predominant cause requirement of 51%
JUDICIAL RULES, DOCTRINES GUIDELINES
(1) Injury can occur within scope of employment, sometimes, before hiring or after termination
(2) Going and coming generally not compensable, except:
(a) Wages or travel expenses paid during travel
(b) Transportation controlled by ER
(c) Injuries of regular place of employment
(d) Wearing a uniform during travel
(e) Special mission or special errand doctrine
(f) Transporting work tools or supplies
(g) Home as second job site
(h) Commercial trader rule
(i) Deviation from duties
(j) Mixed business and personal purposes – dual purpose rule
(3) Premises line rule – generally any injury on ER’s premium, including party lot – compensable
(4) On-premises injury to off-duty EE comp under limited (unclear word)
(5) Special risk or zone of danger – if EE by virtue of employment placed in danger and normal (unclear word) would not otherwise time – Compensable even if not or ER premises
(6) Assaults by non-EE if motivation purely personal
Non-comp; if work-related – comp
(7) Mysterious death – death on work site and can’t be (unclear word) - Comp
(8) Personal Comfort Doctrine – Ordinary acts at work place, was if they are for personal comfort of convenience of EE – comp.
(9) Performance of work in unauthorized manner – comp as long as EE not engaged in purely personal endeavor
(10) Break time injuries – unpaid break and nut on ER’s premises – noncomp – paid or on site or work related – comp.
(12) Horseplay/skylarking Doctrine – if injury result of horseplay – non-compensable
Bunkhouse Rule – If EE resides on ER’s premises, EE entitled to WC for injuries sustained during the reasonable and anticipated use of the premises.
(13) Acts of God – usually non-comp
(14) Compensable Consequence Injury Doctrine – Injuries subsequent to industrial injury and that are caused by it
Comp as part and parcel of original injury
Injury from term of EE
Physical injury maybe comp
Psych barred by §3208.2 if good facts personal action
M-P – also barred by §3208.3 (h) if 100% G-F P. action-reliable
Injury After Term
Is generally barred be no employment relationship
If psych injury incidental to employment or may reasonably be contemplated by employment – compensable
Going and coming – Travel Expense Exception:
(1) Expenses paid are substantial, not nominal
(2) Work is an extensive distance from EE home
(3) Expenses are part to induce EE to accept employment
Multiple cases have held that if ER requires EE to turning his own car for use benefiting the EK – injury during commute to and from work in compensable
Special mission (exception to Gora & Comm)
(1) Special/extraordinary in relation to EE’s routine duties - odd hours/location
(2) Within course of employment
(3) Undertaken at request of invitation of ER
Personal errand for supervisor NOT special errand be not within COE
Substantial deviation from special mission – not compensable
Work as 2nd job site
Absent discretion of ER to do work at home, EE who consistently works at home, when up knowledge of ER does not establish Home as (unclear word) work site Commercial Trader Rule
Under CTR, on EE travelling on an ER’s business is regarded as only within scope of COE during the ENTIRE period of travel
Travel and other aspects of trip reasonably necessary for the sustenance, comfort and safety of EE
Identifying an EE as commercial trader allows for a finding that injury occurred during COA but it doesn’t establish that injury AOE
Since both AOE/COE required – EE must prove AOE
60’ “leisure activities ER could export”
Bar and spa ok, playing bball and hookers not Ok.
Deviation from Duties
To bar, must be proximate cause of injury
Must be substantial or material i.e. “complete departure from ER’s business”
Special Risk/Zone at Danger
(1) Bur for employment EE would not have been there.
(2) EE faced (unclear word) then what the public in general might face
“Distinctive in nature or quantitatively greaper than risks common to the public”
Left-hand turn exception
Assaults by Non-EE’s
Industrial – Compensable
Personal – Not Compensable
Neutral – Comp
Employment must be contributing factor not merely provided the stage for the assault
Notice to EE
§553 requires everything to fire victim EE within notice of availability of WC via first class mail or personally using 1 working day (supplemental to §5901)