Navigating the Mine Field of Workers’
Compensation & Employment Laws
January 30, 2014
Sponsored by Alliance Occupational Medicine, Callan Law
Firm, and Slater, Hersey & Lieberman, LLP
JENNIFER CALLAN
Callan Law Firm
1100 Lincoln Avenue, Suite 261
San Jose, CA 95125
T: 408.337.0200
F: 408.337.0400
E-mail: jcallan@callan-law.com
SB 863
Highlights:
Increase PD values;
Simplify PD rating method;
Provide additional payments for workers with disproportionate wage loss;
Resolve medical treatment disputes through IMR;
Resolve bill payment disputes through IBR;
Simplify SJDB/voucher;
Lien Reform – Required payment of filing or activation fee; and
Establish fee schedules for copy services, interpreters, vocational experts,
and in-home health care.
SB 863
PD Benefits:
Rates:
For all DOIs on or after 1/1/13, minimum rate is $160/wk.
For all DOIs between 1/1/13 and 12/31/13, maximum rate will
be $230/wk. [less than 55%], $270/wk. [55% to 69%], or
$290/wk. [70% to 99%].
For DOIs on or after 1/1/14, maximum rate will be $290/wk. for
all PD levels.
Types of injuries:
No PD benefits for compensable consequence sleep
disorders or sexual dysfunction. PD for psyche add-on only if
the physical injury is “catastrophic” or where claimant was the
victim of or a witness to a violent crime.
SB 863
PD Benefits:
PD Advances:
Can defer PD advances made before a formal award of PD if
claimant returns to the same employer he/she worked for at
the time of the injury and earns at least 85% of his/her preinjury wages and compensation.
Can also defer PD if claimant works for a different employer
and earns 100% of pre-injury wages and compensation.
PD Rating:
Pre-SB 863 rating formula includes a modifier of between 1.1
and 1.4, depending on the body part that is injured. For
injuries on or after 1/1/13, the rating formula will no longer
include the “future earning capacity modifier”. Instead all
injuries will be adjusted by a factor of 1.4.
SB 863
RTW Fund:
$120 million per year RTW Fund established and administered
by the DIR. The RTW Fund is to provide an additional payment
to claimants whose PD ratings are disproportionately low
compared to their wage losses after a workplace injury.
SJDB/Voucher:
For DOIs on or after 1/1/13, SJDB is fixed at $6,000 and due 60
days after the PTP, AME, or QME declares the I.W. P&S, and
issues a report outlining the I.W.’s work capacities, if the
employer does not offer the worker a job that meets certain
criteria.
SB 863
Independent Medical Review (IMR):
As of 7/1/13 for all DOIs, Independent Medical Review
(IMR) will be used to decide all disputes regarding medical
treatment.
IMR can be requested by I.W. following a denial,
modification, or delay of a treatment request through the
UR process.
IMR not available if there is a dispute regarding causation.
SB 863
Independent Bill Review (IBR):
IBR process to resolve disputes regarding the amount to be
paid to doctors.
IBR will not apply to disputes regarding treatment
authorization [which instead go through IMR], cases in
which causation is at issue, or where there is a dispute
about whether or not the provider is authorized to treat
the I.W.
SB 863
Lien Reform:
Filing fee of $150 now required for all liens filed after 1/1/13,
and $100 activation fee required for liens filed before 1/1/13,
but activated for a conference or trial after 1/1/13.*
Dismissal of liens by operation of law after 1/1/14 if filing or
activation fee has not been paid, or if 18-month statute of
limitations has been met for services after 7/1/13, or if 3-year
statute of limitations has been met for services before 7/1/13.
Fee Schedules:
Fee Schedules for copy services, home
vocational expert fees and interpreters.
health
care,
AOE/COE
Dufresne v. City of Hayward (2009) Alameda Superior
Court No. 2002-067063 (Unpub.)
Dufresne filed a workers’ compensation claim against the City of Hayward for
“stress, depression, anxiety [and] paranoia due to prolonged discrimination
[and] harassment.” The City accepted liability for the workers’ compensation
claim and provided benefits.
During the course of the Trial of Dufresne’s civil Complaint against the City for
sexual harassment, evidence was admitted regarding the WC claim, including
the City’s acceptance of liability for the claim.
Jury returned a verdict in favor of Dufresne, awarding her $472,389.00 on her
complaint for sexual harassment against the City. The City appealed, arguing
that the court erred in admitting evidence that the city accepted liability in WC
proceedings arising out of the same alleged harassment.
Holding: Evidence of what transpired in the WC proceedings was admissible in
the civil trial.
When the City admitted that Dufresne’s WC claim was
compensable, it was necessarily acknowledging that Dufresne had presented
sufficient objective evidence of harassment and that the harassment was the
predominate cause of her injury.
CUMULATIVE TRAUMAS
Kendall v. Open Wave Systems, Inc., APIC (August 2012) 2012
Cal. Wrk. Comp P.D. LEXIS 159 [Panel]
Travelers sought contribution from American Protection Ins. Co. (APIC).
Arbitrator found that there was one CT extending through June 7, 2004 and
that Travelers was entitled to contribution from APIC. APIC filed a Petition for
Reconsideration. The sole issue before the court was the determination of
the CT period.
Mr. Kendall was treated for bilateral hand/wrist pain and numbness in May
2003. At that time he was told to cut back on work hours, but he did not. He
did wear wrist braces outside of work and took medication. On July 19,
2004, Mr. Kendall filed a DWC-1 claim for BCTS. TD began on September 30,
2004.
The WCAB amended the F&A to find that the period of liability for the CT was
through September 29, 2004. The WCAB noted that liability for a CT is
determined according to the last year preceding either the DOI (Labor
Code § 5412) or the last date on which the employee was employed with
injurious exposure. (Labor Code § 5500.5)
CUMULATIVE TRAUMAS
Kendall v. Open Wave Systems, Inc., APIC (August 2012) 2012
Cal. Wrk. Comp P.D. LEXIS 159 [Panel]
Labor Code § 5412 defines CT injury as “that date upon which the
employee first suffered disability therefrom and either knew or in the
exercise of reasonable diligence should have known that such disability
was caused by his present or prior employment.” “Disability” in this
context means either TD or PD.
Mr. Kendall was not found to have suffered PD by the WCAB as he did
not reduce his work hours or work modified duty. The WCAB then
analyzed when Mr. Kendall first suffered TD, which it found to be
September 30, 2004.
Holding: Since the DOI under Labor Code § 5412 was September 30,
2004, and the last day of injurious exposure was Applicant’s LDW on
September 29, 2004, it is appropriate to use the earlier of these two
dates and find that the CT ends on September 29, 2004.
CUMULATIVE TRAUMAS
Campos v. Atascadero Unified School District, The Vons
Companies (October 2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 504
[Panel]
Applicant sustained a CT injury extending through March 1, 2004. During that
period, Applicant had concurrent employment at Atascadero Unified
School District and at Vons. Atascadero and Vons arbitrated their dispute
regarding the division of liability after the case in chief resolved.
The arbitrator found that because Applicant worked for Atascadero for 365
days and for Vons for 193 days during the CT period, the division of liability
was calculated at 65% to Atascadero and 35% to Vons. Atascadero sought
reconsideration of the arbitrator’s F&O.
The WCAB Panel noted that Applicant worked for Atascadero during the
entire CT period as a playground assistant for “about 10 to 15 hours per
week.” She also worked for Vons as a courtesy clerk and grocery stocker
from March 1, 2003 to October 10, 2003, for “about 24 hours per week.”
During the CT period, applicant had worked for 379.5 hours for Atascadero
and 853 hours for Vons.
CUMULATIVE TRAUMAS
Campos v. Atascadero Unified School District, The Vons
Companies (October 2012) 2012 Cal. Wrk. Comp. P.D. LEXIS
504 [Panel]
The Panel stated that “[w]hile the Arbitrator divided liability based on a
comparative number of days applicant was employed by each
employer, we are persuaded that, on this record, liability should be
calculated based on the number of hours that applicant worked for
each employer.” The Panel noted that “[w]hile we conceded that there
is no controlling precedent employing this calculation method, the
current version of [Labor Code] section 5500.5 does not preclude it.”
The Panel rescinded the arbitrator’s decision and substituted it with a
new F&O finding that the assignment of liability between defendants is
31% to Atascadero and 69% to Vons.
MEDICAL PROVIDER NETWORKS (MPNs)
Grossman v. Aramark Uniform Service 2013 Cal. Wrk.
Comp. PD Lexis 149 (WCAB Panel 2013)
Applicant sustained an accepted low back injury and underwent low
back surgery. AME Dr. Steven Isono examined Applicant and opined
that he was entitled to future medical care (including conservative
medical treatment and potential future surgery).
Applicant then
changed his PTP to Dr. Charles Lewis, to obtain the additional medical
treatment outlined by Dr. Isono.
Defendant notified Applicant via letter that Dr. Lewis was outside of the
employer’s MPN, and listed the name of five physicians from within the
MPN. Applicant continued to treat with Dr. Lewis, whose medical
services underlie a lien claim by San Joaquin Accident & Medical Group
(SJAMG).
Following the lien trial, the WCJ found that Applicant was aware of
defendant’s MPN when he changed his treating physician to Dr. Lewis,
that Applicant’s knowing referral to Dr. Lewis for treatment outside the
MPN was invalid, and that SJAMG is to take nothing on its lien claim.
MEDICAL PROVIDER NETWORKS (MPNs)
Grossman v. Aramark Uniform Service 2013 Cal. Wrk.
Comp. PD Lexis 149 (WCAB Panel 2013)
During the lien trial, Applicant testified that he called the doctors on the
list but did not receive a call back. Applicant’s attorney also testified
that when he called four physicians, none would accept the PTP role, as
they did not wish to take on the reporting requirement. The fifth
physician told Applicant’s attorney that he wanted to review the
medical file before making a decision. Applicant’s attorney also
attempted to access the website listed in defendant’s letter but was
unable to gain access to the MPN list.
Holding: The WCAB reversed the WCJ’s decision, finding that the lien
claimant was entitled to reimbursement for its lien for medical treatment
self-procured by applicant outside of defendant’s MPN. Defendant’s
failure to take steps to reasonably assure that Applicant had access to a
PTP within the MPN was a neglect or refusal to provide reasonable
medical treatment that rendered it liable for the cost of medical
treatment reasonably self-procured by applicant.
MEDICAL PROVIDER NETWORKS (MPNs)
Valdez v. WCAB 57 Cal. 4th 1231 (CA Supreme Court, Nov.
2013)
Applicant initially began treatment with a physician in her
employer’s MPN. She later received treatment from a physician
outside the MPN. Applicant requested temporary disability
benefits, relying on reports by the non-MPN physician.
The WCAB concluded that the reports from the non-MPN
physician were inadmissible in the proceedings regarding the
claim for temporary disability benefits. The Court of Appeal
disagreed and annulled the decision of the WCAB.
MEDICAL PROVIDER NETWORKS (MPNs)
Valdez v. WCAB 57 Cal. 4th 1231 (CA Supreme Court,
Nov. 2013)
Holding:
The admission of reports from privately retained and compensated
physicians is not precluded in disability proceedings.
Labor Code § 4616.6 restricts the admission of medical reports only in
proceedings to resolve disputes over diagnosis and treatment within
an MPN.
Privately retained doctors’ reports cannot be the sole basis of an
award of compensation, but can provide some basis for an award of
compensation.
MEDICAL TREATMENT
Adventist Health v. WCAB (Fletcher) (November 2012) 2012
Cal. App. LEXIS 1208 [Court of Appeal, 3rd]
Applicant had a future medical award and relocated to Maryland.
Defendant had difficulty obtaining required reporting from applicant’s
physician in Maryland, Dr. Malik. Defendant, therefore, filed a Petition with
the AD and requested a change of PTP as Dr. Malik failed to comply with the
reporting requirements. The AD granted the Petition.
Applicant, however, still sought some treatment with an associate of Dr.
Malik’s and requested reimbursement for such treatment.
The Court of Appeal found that “by returning to the physician who had
been administratively removed and his associate, [applicant] flaunted the
administrative order [of the AD].” Additionally, “by seeking treatment from
providers who failed to submit treatment plans or medical records,
[applicant] denied [defendant] the ability to comply with utilization review.”
Holding: The WCAB is without authority to allow applicant to flaunt not only
the AD order, but also the rules of the workers’ compensation system.
MEDICAL TREATMENT
Mendez-Correa v. Vevoda Dairy 2013 Cal. Wrk. Comp. P.D.
LEXIS 171 (WCAB Panel 2013)
Applicant sustained an accepted industrial injury and was declared P&S
by both his PTP and the Panel QME, while unrepresented. Applicant,
thereafter, moved to Southern California where he obtained an
attorney and began treating with a new PTP, over defendant’s
objection that this new PTP was outside of defendant’s MPN. Numerous
other non-MPN providers subsequently filed treatment liens.
The WCJ found that applicant self-procured medical treatment outside
of defendant’s MPN at his own expense under Labor Code § 4605 and
that self-procured medical treatment liens for treatment outside of
defendant’s MPN are not the defendant’s liability and are disallowed.
MEDICAL TREATMENT
Mendez-Correa v. Vevoda Dairy 2013 Cal. Wrk. Comp. P.D.
LEXIS 171 (WCAB Panel 2013)
Upon reconsideration, the WCAB agreed that applicant was obligated to
treat within the MPN. However, the WCAB disagreed that the record
supported the WCJ’s finding that applicant intended to self-procure
treatment from any lien claimants at his own expense, following his move to
So. CA. The WCAB rescinded the WCJ’s finding that applicant self-procured
services for medical treatment at his own expense from all lien claimants
who were not in defendant’s MPN pursuant to Labor Code § 4605.
If applicant had intentionally self-procured medical treatment pursuant to
Labor Code § 4605, he would be personally liable under that section for the
cost of the treatment, and the WCAB would have no jurisdiction to
determine its reasonable value or to hold defendant liable for it as part of
the applicant’s workers’ compensation.
PANEL QMEs
Matthies v. WCAB (Paesano’s Restaurant) 78 CCC 718
(WCAB Panel 2013)
Applicant filed a claim for injury to her back, neck and hips on 9/23/11 while
employed as a server for Paesano’s Restaurant. While unrepresented, Applicant
was examined by chiropractor QME Dr. Perry Carpenter pursuant to Labor Code
§ 4062.1. In conjunction with the evaluation by Dr. Carpenter, the claims adjuster
sent a letter to Dr. Carpenter, with a copy to Applicant, outlining her theory of the
case and setting forth questions to be addressed by the QME.
A few days later, the claims adjuster sent a letter to Applicant, enclosing medical
records that were concurrently sent to the QME. On three separate dates, the
claims adjuster sent Dr. Carpenter subpoenaed records from multiple sources.
Applicant was sent copies of all of the transmittal letters, but there was no record
as to whether Applicant was provided with copies of the subpoenaed records
referenced in the transmittal letters.
PANEL QMEs
Matthies v. WCAB (Paesano’s Restaurant) 78 CCC 718
(WCAB Panel 2013)
Applicant objected to Dr. Carpenter’s report on the basis that it was a
supplemental report prepared after review of unauthorized medical records.
The WCJ overruled Applicant’s objection and admitted the report into
evidence. Applicant filed a Motion to Disqualify Dr. Carpenter and Obtain a
New Panel QME. Applicant alleged that Defendant inappropriately sent
records to Dr. Carpenter in violation of Labor Code § 4062.3(f).
WCJ issued a F&A ordering the DWC Medical Unit to issue a new QME Panel
in the specialty of chiropractic. Defendant appealed.
WCAB upheld the WCJ’s decision as relates to the Panel QME issue,
concluding that Applicant did not receive timely or adequate notice of
medical and non-medical records sent by the claims adjuster to the QME
nor notice of her right to object to any provision of these records to the QME,
as required by Labor Code § 4062.3(b) and Regs §35(c).
PSYCHIATRIC CLAIMS
County of Sacramento v. WCAB (Brooks) 78 CCC 379 (Ct. App.
2013) (opinion modified, 2013 Cal. App. LEXIS 348)
Applicant worked as a supervising probation officer for the County of
Sacramento. Applicant felt that the team he supervised at work, resisted and
undermined his authority and supervision. His attempts to counsel those he
supervised went awry. Applicant was admonished by management and was the
subject of an internal affairs investigation. Applicant claimed he had sustained a
psychiatric injury at work.
Psychiatrist Ann Allen, M.D., served as AME. Dr. Allen found that Applicant
sustained a psychiatric injury and concluded that one-third of causation was due
to a complaint filed by another employee (which the parties agreed was not a
personnel action), one-third was due to the internal affairs investigation (which
the parties agreed was a personnel action), and one-third was due to Applicant’s
feelings that his supervisors were not supporting him (the parties disputed whether
this was a personnel action).
The County denied liability for Applicant’s claim based on the good faith
personnel action defense under Labor Code Section 3208.3. The WCJ found that
the Applicant had sustained a compensable work injury and the WCAB affirmed.
PSYCHIATRIC CLAIMS
County of Sacramento v. WCAB (Brooks) 78 CCC 379 (Ct.
App. 2013) (opinion modified, 2013 Cal. App. LEXIS 348)
The Third District Court of Appeal vacated the WCAB’s award, finding that
AME Dr. Allen’s reports and testimony “were so confusing and changing that
Dr. Allen’s opinion cannot be deemed support for the Board’s conclusion
that personnel actions were not a substantial cause of [Applicant’s] injury.”
Holding: The medical evaluator has no authority to decide what is or is not a
personnel action. The WCAB “erred by impliedly accepting Dr. Allen’s
opinion concerning what is a personnel action when it did not consider the
record for evidence concerning what caused [Applicant’s] feelings that he
was unsupported by his supervisors.” As this was prejudicial error, the
WCAB’s decision was annulled and the case was remanded for further
development of the record.
PERMANENT DISABILITY
Grant v. Los Angeles Lakers, 2013 Cal. Wrk. Comp. P.D. LEXIS 125
(WCAB Panel 2013)
Applicant played professional basketball from 1987 through 2004 and his last
year of employment as a professional athlete was with the Los Angeles
Lakers. At trial, the WCJ found that applicant sustained industrial injury to
numerous body parts, post-traumatic head syndrome, sleep disorder, etc.,
causing 90% PD without apportionment, and a need for medical treatment.
The WCJ based his findings upon the applicant’s QME report issued by Dr.
Styner, who opined that the AMA Guides, 5th Edition did not apply to
applicant, because he was a professional athlete and not a “normal
person.” Dr. Styner also opined that Almaraz/Guzman allowed for a higher
rating.
PERMANENT DISABILITY
Grant v. Los Angeles Lakers, 2013 Cal. Wrk. Comp. P.D.
LEXIS 125 (WCAB Panel 2013)
Holding: Dr. Styner’s reports failed to include a proper analysis of applicant’s
condition pursuant to the AMA Guides, and, therefore, were not substantial
medical evidence. Dr. Styner failed to support his departure from the AMA
Guides and his departure was not supported by the medical record.
Dr. Styner’s assessment of applicant’s PD using other than usual AMA Guides
charts and tables on the basis that applicant was a professional athlete was
unjustified since occupational factor is already accounted for in the rating
string.
WCJ’s decision rescinded and case returned to trial for further development
of the record.
PERMANENT DISABILITY
Gerton v. City of Pleasanton 2013 Cal. Wrk. Comp. P.D LEXIS
105 (WCAB Panel 2013)
Applicant sustained an accepted CT to 6/16/09 injury to his low back. At
trial, the WCJ found that applicant sustained 62% PD with a need for future
medical care. In the Opinion, the WCJ stated that the DFEC adjustment
factor contained in the 2005 PDRS was rebutted at trial by the testimony
from the applicant’s vocational expert. Citing Dahl v. Contra Costa County,
the WCJ agreed with the vocational expert, who had opined that the
applicant’s work preclusions resulted in a 65% DFEC.
Holding: F&A rescinded and case returned to trial level for further
development of the record. New decision required as to whether applicant
carried his burden of rebutting the DFEC component of the 2005 PDRS and
showing that he was entitled to a higher PD than as per the 2005 PDRS.
While the Dahl analysis may be applied to this case of less than permanent
total disability, the record must be developed on the issues of applicant’s
post-injury earnings, his amenability to vocational rehabilitation and the
relationship to his DFEC and percentage of permanent disability.
PERMANENT DISABILITY
Seymour-Jackson v. WCAB 78 Cal. Comp. Cases 352 (Ct.
App. 2013 writ denied)
Applicant sustained industrial injuries to various body parts in 1993, 1997, and
2003. At trial, she was found to have PD of 44.75% for the knee and 40% for
back and psyche injuries. Applicant filed a Petition for Reconsideration,
contending that the WCJ should have found the PD to be at 100%.
At trial, the WCJ found defendant’s vocational expert to be more
persuasive. The WCJ noted that applicant’s expert failed to explain why
applicant’s need to stand for eight minutes after sitting for 15 minutes could
not be accommodated by utilizing a “sit-stand station.” Defendant’s expert
emphasized that applicant had extensive experience doing various clerical
and office-type tasks, which were particularly amenable to, and within,
applicant’s work restrictions.
WCAB denied reconsideration and adopted and incorporated the WCJ’s
report. Applicant’s Petition for Writ of Review was denied.
APPORTIONMENT
Acme Steel v. WCAB 218 Cal. App. 4th 1137 (Ct. App. 2013)
Applicant sustained a CT injury to multiple body parts, including hearing loss,
on October 16, 2003. Dr. Schindler performed an AME and apportioned
hearing loss based on both nonindustrial causes and a prior injury,
concluding that applicant had 100% hearing loss that was 40% apportioned
to non-industrial factors and 60% apportioned to occupational factors,
including an industrial injury for which there was a prior award for hearing
loss.
At trial, the WCJ found that applicant effectively rebutted any DFEC, instead
showing 100% loss of earning capacity entitling him to 100% permanent and
total disability. The WCJ based the latter finding on vocational expert
testimony that there was no job in the open labor market that could
accommodate App’s limitations, need for medications and rests, etc. The
WCJ also found that Labor Code § 4664 is not pertinent because prior to the
injury in question there was no earning loss due to the prior award of PD for
hearing loss, reasoning that Applicant continued to work after the prior
award for hearing loss.
APPORTIONMENT
Acme Steel v. WCAB 218 Cal. App. 4th 1137 (Ct. App. 2013)
Defendant Acme sought reconsideration of the award, contending that the
WCJ exceeded her powers by failing to apportion the disability pursuant to
Labor Code § 4663, because there was evidence showing applicant’s
hearing loss was 40% non-industrial. In response, the WCJ stated that she
was not bound by the AME’s findings, given that there was convincing
vocational testimony regarding loss of earning capacity. The WCAB denied
defendant’s petition for reconsideration.
Holding: The WCAB ignored substantial medical evidence presented by AME
Dr. Schindler showing that applicant’s 100% loss of hearing could not be
attributed solely to the current cumulative trauma. The WCAB should have
parceled out the causative sources—nonindustrial, prior industrial, current
industrial—and decided the amount directly caused by the current industrial
source. Remanded back to the WCAB with directions to the WCJ to make
an award consistent with this opinion.
DISCOVERY
Yera v. J.C. Penney 2013 Cal. Wrk. Comp. P.D. Lexis 189
(WCAB Panel 2013)
Applicant claimed work injury to her neck, upper extremities, chest,
nervous system, and other body parts while employed as a sales
assistant by J.C. Penney. Defendant noticed Applicant’s deposition.
Applicant appeared at the noticed time and location but refused to go
forward with the deposition in the presence of the store manager, who
was designated as the employer’s representative.
Defendant petitioned to compel the deposition to proceed in the store
manager’s presence, and the WCJ denied the petition. Applicant had
not sought any kind of protective order prior to the deposition.
DISCOVERY
Yera v. J.C. Penney 2013 Cal. Wrk. Comp. P.D. Lexis 189
(WCAB Panel 2013)
No evidence from Applicant identifying any right to privacy that would
or could be affected if the store manager was present during the
deposition. The only reason given by Applicant for not proceeding at
the deposition was that Applicant would feel intimidated by the store
manager’s presence.
Holding: “[s]uch a summary assertion of subjective feelings is not
sufficient reason to exclude the store manager from the deposition,
particularly in light of the fact that Applicant is represented by counsel
and has remedies available to address any improper behavior that may
occur at the deposition.” WCJ’s decision denying defendant’s petition
to compel is rescinded.
DISCOVERY
Lappi v. Regents of U.C. Irvine 2013 Cal. Wrk. Comp. P.D.
Lexis 59 (WCAB Panel 2013)
Applicant filed a claim for injury to her back, psyche, right knee, etc.
During the course of discovery, Applicant sought to depose Defendant’s
claims adjuster and obtained an Order that the adjuster was to produce
all non-privileged portions of the claims file.
Defendant produced some claims file documents but did not produce
any documents created after the date that it retained an attorney.
Following additional hearings, Defendant eventually produced a
privilege log identifying 205 documents for which attorney-client
privilege and attorney work product doctrine were claimed.
DISCOVERY
Lappi v. Regents of U.C. Irvine 2013 Cal. Wrk. Comp. P.D.
Lexis 59 (WCAB Panel 2013)
Applicant disputed Defendant’s claims of privilege in regard to 47 of the
documents on the privilege log. A trial on this discovery issue was held
and the WCJ issued a Findings and Order finding that communications
between claims personnel were not privileged unless the
communications
specifically
documented
or
summarized
communications that had been made by counsel.
Defendant filed a Petition for Reconsideration, asserting that per
Defendant’s trial witness, claims communications including action plans
and supervisor reviews contained confidential information including
legal opinions as well as discussion and advice provided by counsel.
DISCOVERY
Lappi v. Regents of U.C. Irvine 2013 Cal. Wrk. Comp. P.D. Lexis
59 (WCAB Panel 2013)
Holding: “[i]f the notes only contain an internal action plan for
defendant’s claims employees and do not refer to an attorney’s
communication, they may not be protected by the attorney-client
privilege,” and “if a note with an action plan does not refer to an
attorney’s impressions, it is difficult to see how the action plan would fall
within the work product doctrine.”
Special Master may be appointed by the WCJ in order to assess the
actual substance of the communications at issue through an in camera
review of the disputed documents.
Defendant filed a Petition for Writ of Review in the Fourth Appellate
District Court of Appeal, Division 3, on 3/28/13. A Writ of Review was
issued on 8/1/13.
LIENS
Figueroa v. B.C. Doering Co. 78 CCC 439 (WCAB en banc 2013)
Lien claimant did not pay lien activation fee* and argued that the fee was not payable
when defendant has not served supporting documents, thus depriving lien claimant of the
opportunity to resolve the lien.
The WCAB held that where a lien claim falls within the lien activation fee* reqmts. of
§4903.06:
The fee must be paid prior to the scheduled start time of a lien conference;
If the lien claimant does not pay the fee prior to the start time of the lien conf., and/or
fails to provide proof of payment at the conf., the lien must be dismissed with prejudice;
A defendant’s breach of its duty to serve required documents or engage in settlement
negotiations does not excuse a lien claimant’s obligation to pay the lien activation fee;
&
Notice of intent to dismiss is not req’d prior to dismissing a lien with prejudice for failure to
timely pay the activation fee or failure to present proof of timely payment at a lien conf.
* Lien activation fees are no longer collected by DWC, in compliance with a ruling issued by the U.S.
Dist. Ct. for the Central Dist. of CA in the matter of Angelotti Chiropractic, Inc., et al. v. Baker, et al. In
Angelotti, the U.S. Dist. Ct. granted a temporary injunction on 11/12/13, which took effect 11/19/13,
the prohibits the DWC from collecting the $100 lien activation fee and from dismissing any lien that
has not been activated pending the outcome of an equal-protection challenge.
SETTLEMENT
Steller v. Sears, Roebuck and Co. (2010)
189 Cal.App.4th 175
Whether an Offer to Compromise under CA CCP Section 998
purporting to resolve both a civil disability discrimination claim
and a workers’ compensation claim was sufficient to resolve
both pending actions?

Settlements of workers’ compensation claims must be
approved by the WCAB to be effective.
 [Note:
Employers seeking concurrent resolutions should
ensure the settlement documents expressly provide for,
and make payment conditioned upon, WCAB approval
of the WC settlement.]
Thank You!!