Psychiatric Injured Must Work At Least 6 Months

The amount of filings of psychiatric claims had declined for a number of years. They have recently made a resurgence. One reason is that applicants are claiming the psychiatric injury is the result of a physical injury.

In this case the applicant had an admitted specific injury. The applicant had not worked for the employer for six months at the time of the injury. The applicant had back surgery for the admitted injury. Four years after the injury the applicant amended the original application to claim a psychiatric injury resulting from the original orthopedic injury.

The case went to trial and the Workers’ Compensation Judge (WCJ) ruled the applicant did not suffer a psychiatric injury because the applicant had not worked for the employer 6 months at the time of the original injury. The Workers’ Compensation Appeals Board (WCAB) reversed the WCJ saying there was an injury.

On appeal, the appellate court looked at Labor Code section 3208.3 subdivision (d). The court looked at existing case law and determined that the six month rule did apply to physical injuries that occurred within the first six months of employment.

The applicant argued that there was no termination after the original injury so the applicant was employed longer than six months. The court differentiated between employed and “actually worked for” the employer. You must actually work for the employer for the six months. You can not use time while you are off because you are injured to account for the six months.

The applicant also tried to allege this statute was unconstitutional. The appellate court found this argument without merit.

Uninsured Motorist Credit In A Workers Compensation Case


The applicant in this case filed a workers’ compensation case for a claim arising out of a car accident while at work.

The applicant settled with his automobile insurance carrier for the policy limit of $15,000. The applicant further received $85,000 from his automobile insurance carrier for the applicant’s under insured motorist coverage.

The applicant was found to have a compensable injury. The carrier was solvent at the time of the injury. The carrier became insolvent and California Insurance Guarantee Association (CIGA) was joined in the workers’ compensation proceedings. CIGA asked for a credit from the Workers’ Compensation Appeals Board (WCAB). The Workers’ Compensation Judge (WCJ) denied the credit. CIGA filed a Petition for Reconsideration. The WCAB did not allow the credit.

A Writ was filed and the appellate court disagreed with the WCJ and the WCAB. The appellate court indicated that if the applicant had full coverage that the workers compensation carrier would be entitled to a full credit. Therefore, someone who is under insured should not receive more than someone who is adequately insured. This would not be fair to the person who is properly insured. Moreover, the applicant would get a double recovery.

Even though this case dealt with CIGA and issues related to ‘covered claims’ the same argument should be made when representing a solvent carrier. The court stated “the employer’s or insurer’s right to reimbursement from the third party tortfeasor takes first and full priority”.

An Applicant Is Not Entitled To Temporary Disability Once P & S For Treatment

This case was decided in the Supreme Court of California. Various parries submitted amicus curiae briefs and oral arguments to the court.

The applicant filed a claim for workers’ compensation benefits. The applicant settled the case by way of Stipulation with Request for Award. The applicant stipulated to a period of temporary disability which had ended. The applicant stipulated to a permanent disability of 23 per cent. The applicant also stipulated to the need for future medical treatment.

The applicant returned to work. After returning to work the applicant sought medical treatment that was awarded in the stipulation. The applicant sought this treatment during normal business hours because that was the only time the doctor was available. The employer made the applicant use either sick or vacation time as opposed to paying temporary disability for the time the applicant missed from work while attending these appointments.

The applicant wanted either industrial disability leave or temporary disability instead of using sick or vacation time. The employer refused and the issue came before a Workers’ Compensation Judge( WCJ). The applicant also alleged this was discrimination under Labor Code section 132 (a).

The WCJ found that the applicant was entitled to temporary disability and that there was a violation of Labor Code section 132 (a). The Workers’ Compensation Appeals Board affirmed. The Court of Appeal reversed.

The Supreme Court stated that once and industrial injury becomes permanent and stationary, the applicant is no longer entitled to receive temporary disability. The obligation to pay temporary disability ends when the applicant returns to work, is deemed able to return to work, or is permanent and stationary. Therefore, the applicant is not entitled to temporary disability to compensate for wage loss while attending medical appointments.

In regards to the 132 (a) the applicant was not singled out for disadvantageous treatment due to the industrial injury. Therefore, there was no violation of Labor Code section 132 (a).

Defendants Are Also Entitled To An Expedited Hearing Regarding Medical

This case involves an Order Vacating Order Granting Reconsideration, and Opinion and Order Granting Removal and Decision After Reconsideration.

The applicant filed a claim for workers’ compensation benefits. In this case the employer had contracted with a Health Care Organization (HCO) for medical services for care for injured employees. Employees may elect to participate in he HCO plan or they may opt out of he program by selecting a predesignated personal physician.
Li this case the employer had the HCO plan and the employee had not predesignated a physician. After the initial 30 days from the date of injury the applicant’s attorney instructed the applicant not to attend any defense medical appointment.

The employer claimed that since the applicant was involved in an HCO plan the 30 day rule of medical control was not binding and the employer still had medical control. The employer filed a Request for Expedited Hearing and Decision to determine who had medical control.

The Workers’ Compensation Appeals Board (WCAB) set the case for pretrial conference. The defendant filed a petition for removal which the WCAB denied on the basis that the defendant was not entitled to an expedited hearing. The defendant men filed another petition for removal indicating mat different WCAB offices were granting defendants expedited hearings.

The defendant had filed a Petition for Order to Restore Medical Control. The applicant had refused to accept medical treatment from the HCO designated physician. The WCAB determined that if the applicant refuses me employer may not have a speedy remedy to resolve this issue if the employer has to await a conference, and then a trial, and then the judge’s decision.

The WCAB held that a defendant may obtain an expedited hearing to resolve disputes over and applicant’s entitlement to medical treatment and a defendant’s right to control that medical treatment for injured workers in and HCO plan. The WCAB recognized that this had the potential to effect the determination of temporary disability as well.

Penalty On Living Expenses Is A Separate Class Of Benefits Under Section 5814

This is an unpublished appellate court decision that proves insightful in determining a penalty and in commutations.

The applicant filed a claim for workers’ compensation benefits. The parties stipulated that the applicant had a 100 per cent permanent disability. The permanent disability compensation rate was $406.00 per week. The applicant’s attorney requested an attorney’s fee. The present value of the attorney’s fee was calculated and given to the applicant’s attorney from the far end of the award. This reduced the weekly amount paid to the applicant to $354.54.

Thereafter, the applicant petitioned for a commutation of $331,200., which represented the present value of nearly the entire remaining award. The applicant wished to pay off the home mortgage, credit card debt and a $90,900 loan from the applicant’s in-laws. The in-laws obtained the money to loan the applicant from a business line of credit,

The applicant’s income was revealed in testimony. The in-laws needed to have the loan repaid by the applicant to keep there business a float.

The Workers’ Compensation Judge (WCJ) ordered the payment of a lump sum of $115,000. The County petitioned for reconsideration. The WCJ reconsidered and ordered $90,000 commuted for the loan to the in-laws, $25,000 commuted for repaying credit card debt and $1000 attorney fees.

The County again petitioned for reconsideration. The Workers’ Compensation Appeals Board (WCAB) reduced the commutation to $90,900 for the in-laws and $1000 attorney fees.

The payment was late and a penalty was pursued. After trial and another petition for reconsideration the WCAB awarded a penalty on the entire permanent disability indemnity.

This court determined that the delayed payment was a particular class of compensation apart from the entire permanent disability award and therefore, only awarded a penalty on the delayed portion. They indicated it should have been viewed as a lien instead of a permanent disability award delay by the County.

En Banc Decision Of Appeals Board Defines Ciga Role In Two Consolidated Cases

This decision involves two cases that were consolidated for the Workers’ Compensation Appeals Board (WCAB) to make an en banc decision

In the first case that was consolidated for this decision there was a Stipulation With Request For Award. At the time of the stipulation there were two solvent carriers. The stipulations apportioned liability between the two carriers with the carrier mat would become insolvent to administer the award. When the carrier administering went insolvent the California Insurance Guarantee Association (CIGA) petitioned for dismissal.

In the second consolidated case the applicant alleged two separate cumulative trauma periods. The first cumulative trauma was one carriers sole responsibility. The second cumulative trauma was the responsibility of a carrier who became insolvent and CIGA began administering.

The WCAB consolidated for reconsideration of both awards and indicated that CIGA is limited to the payment of “covered claims”. They indicated that “covered claims” does not include claims where there is other insurance pursuant to Insurance Code section 1063.1 (c) (9).

In a single cumulative trauma where there are multiple carriers CIGA is relieved of liability. There is an exception where there is a previous Stipulation and Award or Compromise and Release and then CIGA is not relieved of liability.

Where there are successive injuries there must be an apportionment of liability including CIGA’s liability for any insolvent carrier.

Where there is more than one award and there is a solvent carrier and CIGA involved in the award CIGA will be relieved of administering the award.

Labor Code section 5412 was not raised as an issue in these cases and may make a significant difference depending on the facts of each individual case. This will need to be analyzed based upon each cases set of facts..

Applicant May Switch Primary Treating Doctor And Receive Presumption

This decision is a published decision from the Court of Appeal. The opinion deals with the presumption of the primary treating doctor after the applicant has been declared permanent and stationary by the original primary treating doctor.

This case involves an applicant who injured his left foot. The applicant was treated and released to regular work. Thereafter, the same physician found the applicant permanent and stationary. Future treatment was recommended in the final report. The applicant then became represented and objected to this report under Labor Code sections 4061 and 4062.

The physician the applicant selected first wrote a report as a Qualified Medical Examiner (QME)and was also selected as the primary treating doctor. This physician eventually made the applicant permanent and stationary and the matter came to hearing contesting who was the primary treating physician that carried the presumption under Labor Code section 4062.9.

The Workers’ Compensation Judge (WCJ) determined the original treating doctor continued as the primary treating doctor and the applicant was precluded from changing doctors under the doctrine enunciated in Tenel/Centinela Hosp. Med. Cntr. v. WCAB (2000) 80 Cal. App. 4th 1041 {Tenet). The Workers’ Compensation Appeals Board affirmed the WCJ’s decision and distinguished the case of Gee v. WCAB (2002) 96 Cal App. 4th 1418 (Gee).

The Court of Appeal agreed that Tenet applies. However, the applicant argues that it does apply and me applicant followed the decision by then objecting under 4061 and 4062. Here it was found that the new physicians first report was a QME report and not a pretext for changing primary treating doctors.The Court found the Gee case was applicable even though that opinion did not address Tenet.

The court indicated that before you could apply the presumption of the primary treating doctor the WCJ must first decide who is the primary treating physician. Therefore, the WCJ must first hold a hearing as to who has the better opinion the initial primary treating physician or the QME. Jf after the trial on that issue the judge chooses the QME, then there may be a new primary treating physician that would carry the presumption. A QME can be selected as the primary doctor. The applicant may be entitled to treatment before that decision is made.

Where Medical Record Is Inadequate You May Develop The Record Further

This decision is an Unpublished Opinion from the Court of Appeal but cites a wealth of citeable cases involving developing the record.

This case involves a managing partner of a workers’ compensation defense firm who filed a workers’ compensation claim for psychiatric injury against his law firm. The claim was denied by the firm.

The applicant was hired as an attorney in 1985. In 1991 the applicant became a managing partner. In 1995 the applicant was asked to step down because of deteriorating performance. The applicant was diagnosed with bipolar disorder Type II. At trial the applicant testified to the stress of having to bill many hours and having to fire two profitable attorneys. One attorney brought a wrongful termination suit in which the applicant had to testify and was unable to do so, causing the applicant to cry. The applicant obtained a medical opinion that found the injury industrial. The defendant obtained a medical opinion that found the injury non industrial. The Workers’ Compensation Judge (WCJ) found the injury non industrial. The applicant filed a petition for reconsideration with the Workers’ Compensation Appeals Board (WCAB) which was denied. The present decision followed.

On review the appellate court is bound by the decision of the WCAB if there is substantial evidence. The court is not bound to accept the unreasonable, arbitrary findings considering the entire record.
A medical opinion for the WCJ to rely must be based on relevant facts and not an incorrect legal theory. A medical opinion not based on adequate history, surmise, speculation, or conjecture will not be substantial evidence. Here the appellate court indicated neither report was substantial evidence.
When the record is not adequate the WCJ or the WCAB must develop the record pursuant to Tyler v. WCAB (1997) 56 Cal. App. 4th 389. In this case the appellate court remanded for the WCJ and WCAB to further develop the record. The opinion makes for interesting reading.

CIGA Does Not Have Liability For Temporary Employees

This newsletter deals with an Opinion and Decision After Reconsideration (EN BANC). It is important in that it deals with 540 consolidated cases.

Jacuzzi had a contract with Remedy Temp, an employee staffing agency, to supply workers to Jacuzzi. The applicant was on the payroll of Remedy Temp, but working at a Jacuzzi job site when he got injured. Remedy Temp was considered the general employer and Jacuzzi the special employer.

Jacuzzi was covered for workers’ compensation insurance by American
Home Assurance (AHA). Remedy Temp had a policy covering the temporary employees with Reliance National Indemnity Company (Reliance). Reliance is now insolvent. Reliance’s “covered claims” are adjusted by California Insurance Guaranty Association.

The applicant was on Remedy Temp’s payroll at the time of injury. There was a policy between Remedy Temp and Reliance. Jacuzzi was listed as an “alternate employer” under that policy. Therefore, prior to liquidation Reliance would have had liability.

The case came up for trial and the Workers’ Compensation Judge (WCJ) dismissed CIGA as a parry defendant. The WCJ made five finding. The most significant of which was that where there is “other coverage” CIGA will be dismissed under Labor Code section 1063.1(c)(9). The WCJ rationalized this was not a covered claim that would be covered.

Three petitions for reconsideration were filed which resulted in this decision.

The Workers’ Compensation Appeals Board (Board) indicated that when the
“general” employer gives up control to the employer borrowing the employee a “special employment relationship exists. Where you have general and special employment the applicant can collect from either or both employers. Liability is joint and several.

Under Labor Code section 11663 the insurer of the general employer is liable unless the applicant is on the special employer’s payroll.

However, here Remedy Temp was insured by Reliance, in liquidation. CIGA is not an insurance company. Therefore, CIGA was dismissed after the Board looked at Labor Code sections 3602 (d), and Insurance Code 1063.1(c)(9) and 11663.

There is currently a stay of proceedings pending appeal, however, applicant’s can petition for relief from the stay.

An Offer Of Modified Or Alternative Work Must Be Precise In Description

This is a non published decision that deals with the issue of modified or alternative work offered to and injured worker in a rehabilitation plan.

The applicant was injured while working as a clerk at Jack In The Box. The applicant received a Findings and Award for medical care and temporary disability. The applicant had back surgery. The treating doctor indicated that the applicant could return to work with certain restrictions.

The applicant requested Vocational Rehabilitation services. The employer responded with a Notice of Offer of Modified or Alternative Work ( DWC Form RU-94). The offer contained the title of the job offered. The applicant responded to the Department of Rehabilitation indicating that the job offer was not satisfactory. The applicant complained that the job title did not explain the position offered sufficiently, the physical demands of the job offered, or the amount of wages.

The Rehabilitation Unit determined the applicant was entitled to full rehabilitation services. The employer appealed this decision to the Workers’ Compensation Appeals Board (WCAB). The matter was tried before a Workers’ Compensation Judge (WCJ). The WCJ determined that the employer had not made a valid offer of modified or alternative work to meet the statutes requirements. The WCAB affirmed the decision on reconsideration and a writ was filed by the employer.

The Court Of Appeal looked at Labor Code Section 4644. This section limits an employer’s obligations for rehabilitation costs if certain criteria are met. This appellate court indicated that Labor Code section 4644 must be read in light of a liberal construction in favor of the employee.

The appellate court examined this specific offer and found that it was not adequate. The offer met two minimum statutory requirements. The DWC Form RU-91 provided information indicating the physical requirements of the job offered, where the job was to be performed, and that the job offer was within a reasonable commute.

However, it did not indicate that it was a regular position or that it would last at least 12 months. The court also found the job description to vague to apprise the applicant of the job’s duties.

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