Monday, October 22, 2007

Summary of Evidence

Appellate Court Orders W.C.A.B. to Provide Summary of Evidence

The Court of Appeals has considered the consequence of the W.C.A.B.’s issuing a decision after Reconsideration without a Summary of Evidence from the Trial Judge and ruled that the Summary of Evidence is a required document and must be completed before the decision on Reconsideration can be properly reviewed. A Summary of Evidence is required pursuant to Labor Code § 5313 and ADR 10566. In this case an arbitrator was used and the same rules apply according to Labor Code § 5272.

This case involves an undercover witness who provided assistance to several law enforcement agencies in Contra Costa County. It was unrebutted that on several occasions the applicant had made drug buys for some officers pursuant to an investigation. Labor Code § 3366 provides that one who assists a police officer at the officer’s request is deemed an employee of the law enforcement agency and entitled to worker’s compensation benefits. There was a factually dispute, resolved against the applicant, regarding the circumstances leading to his being shot in the throat. The applicant claimed he was shot for assisting another officer in a drug related matter. The potential employer deemed the applicant to be a volunteer witness who simply came forward with information on the basis that the applicant had approached an officer and offered to assist rather than being contacted by the police officer.

The parties proceeded to hearing using an independent arbitrator. However that arbitrator failed to provide a Summary of Evidence (the record does not reflect who the hearing officer was or why there was no Summary provided). The W.C.A.B. on reconsideration upheld the denial of compensability for the arbitrator and deemed the Summary of Evidence unnecessary to decide the case.

The Court of Appeals disagreed with the W.C.A.B.’s determination that the Summary was not necessary, holding that the Summary is required to complete the record and that without the information, the decision must be reversed and remanded back to the W.C.A.B. for creation of a Summary of Evidence (which includes the Summary of Testimony) by the arbitrator and the W.C.A.B. is to then review the record again and issue its decision. In doing so the Court rejected the proposal by applicant that the failure to provide the summary of evidence should be deemed fatal to the defendant’s case and the Appellate Court be required to assume the facts as set out in the Petitioner’s brief to be true. The Court held that this standard applies in consideration of pleadings, but not evidence. The Appellate court also rejected several suggestions by defendants that the record was adequately addressed by other information provided by the arbitrator and the W.C.A.B.’s review on Reconsideration.

While not making a determination that the W.C.A.B. should reverse the arbitrator’s decision the Appellate Court did make some comments on the W.C.A.B.’s reasoning in its decision and criticized some of the analysis. Specifically the Appellate Court noted the arbitrator and the W.C.A.B. seemed to be fixated on the applicant’s motivation in offering to assist the police officer in the even that got him injured. The court noted that there is no requirement in the statute for the applicant’s motivation to be considered in the factual pattern. The issue was whether the applicant actually assisted the officer, not why he might have done so. The Appeals Court also rejected the idea that the Police officer must initiate the contact for compensability to attach. The Court deemed that the acceptance of an offer of assistance compelled compensability also.

This case has very limited application other than the principle that the Statement of Evidence is a required document. In the vast majority of hearings, the WCJ provides such a Summary and there is no issue. However where a summary is not prepared, for it is fairly common for the W.C.A.B. on reconsideration to grant the appeal and order a summary to be prepared by the Trial judge. The Board may not have felt that it had similar authority over an arbitrator. Clearly in the mind of the Court of Appeals the W.C.A.B. not only has the authority to require the Summary of Evidence, but the obligation as well.

The case can be located by the following link: Sharareh v. WCAB

Thursday, October 18, 2007

Governer Signs New Work Comp Legislation

California -- Gov. Signs Bills on TD and 24-Visit Cap; Vetoes Others: Top [10/15/07]

Gov. Arnold Schwarzenegger over the weekend signed bills that extend the two-year cap on temporary disability benefits, lift the hard 24-visit cap on chiropractic treatment and physical therapy and make other mid-course corrections to a workers' compensation system that was sharply redirected by reforms in 2003 and 2004.

Schwarzenegger vetoed measures that would have required hospitals to use power devices to lift patients, increased penalties for misclassifying employees and allowed audiologists to become qualified medical evaluators (QMEs).

The governor's signature on AB 338 by Assemblyman Joe Coto, D-San Jose, puts into law a hard-fought compromise between business and labor. The bill, while still limiting collection of temporary disability benefits to 104 weeks in total, allows injured workers within five years after injury to return to work and cease benefits but take time off later and resume benefits.

Employers and labor also compromised on AB 1073 by Pedro Nava, D-Santa Barbara. As originally introduced, the bill would have lifted the 24-visit cap on chiropractic and physical therapy treatment for patients recovering from surgery.

Schwarzenegger signed an amended version that lifts the cap for post-surgical patients, but gives the Division of Workers' Compensation authority to impose limits through its medical treatment guidelines.

The governor also signed:

* SB 869 by Senator Mark Ridley-Thomas, D-Los Angeles. The bill requires the labor commissioner to establish a data-matching program to identify uninsured employers and target those employers for enforcement.

* AB 812 by Ed Hernandez, D-West Covina. The measure, sought by the insurance industry, allows carriers to increase rates of employers who refuse to turn over records necessary for thorough payroll audits.

* AB 1269 by Ed Hernandez, D-West Covina. The bill directs the Division of Workers' Compensation to increase in-patient fee schedule amounts for Diagnosis Related Groups (DRGs) 504 to 511, regarding hospital treatment of burn victims, after consulting with the Commission on Health and Safety and Workers' Compensation.

Schwarzenegger vetoed:

* SB 557 by Senator Pat Wiggins, D-Santa Rosa, which would have allowed audiologists to become QMEs.

In his veto message, Schwarzenegger said although Wiggins' bill would allow audiologists to issue AME reports, a final diagnosis would still have to be made by a physician.

"This could result in unnecessary delays for injured workers and increased costs to the system by delaying prompt resolution of claims. In addition, the proponents of this measure have not demonstrated an unmet need for evaluating hearing loss in the workers' comp system," the governor said.

* SB 171 by Senate President Don Perata, D-Oakland. The measure would have required hospitals to impose "musculoskeletal injury prevention plans" that must include a "zero lift/safe patient handling policy" that substitutes manual lifting and transferring of patients with powered patient transfer devices, lifting devices, or lift teams.

Schwarzenegger said he had vetoed similar measures in the past that do not give hospitals the flexibility they need to protect worker safety.

* SB 622 by Senator Alex Padilla, D-Pacoima. The bill would have imposed penalties of up to $25,000 on businesses that misclassify employees as independent contractors and exposed employers to civil suits by misclassified employees.

Schwarzenegger adopted language by the California Chamber of Commerce, saying the bill was a "job killer" in his veto message.

"In creating new and redundant exposure to litigation and sanctions, this bill may cause businesses to avoid use of the independent contractor model even where it may be appropriately utilized," the governor said. "This will ultimately contribute to a negative perception of California as an inhospitable business climate."

* SB 906 by George Runner, R-Lancaster. The bill clarifies processing and submission of pharmacy claims and other medical service claims in the workers' compensation system.

"I am concerned that some provisions of this bill may inadvertently undermine existing law," Schwarzengger said in his veto message. "For instance, this bill appears to force health plans that cover medical services later determined to be workers' compensation injuries to accept a loss on their outstanding health plan liens against workers' compensation insurers. In addition, by providing that the changes it makes are declaratory of existing law, this bill would unfairly impact existing liens in the system."

Sunday, October 14, 2007

TTD Rate Changes Effective 1/1/2008

California's maximum temporary total disability (TTD) rate will increase to $916.33 on Jan. 1, the Division of Workers' Compensation announced this week.

The minimum rate of $132.25 will increase to $137.45.

The DWC said the increases mark the second consecutive year that the TTD rate will be affected by a change in the state average weekly wage.

Beginning in 2006, Labor Code section 4453(a)(10) requires the rate for TTD be increased by an amount equal to the percentage increase in the average weekly wage as compared to the prior year. The average weekly wage is defined as the average weekly wage paid to employees covered by unemployment insurance as reported by the U.S. Department of Labor for California for the 12 months ending Mar. 31 in the year preceding the injury.

The California average weekly wage for the 12 months ending March 31, 2007 was $914.60. For the period ending March 31, 2006, the figure was $880.00, amounting to a percentage increase of 3.932%.

Applying this increase to the prior year's maximum benefit of $881.66 brings the 2008 maximum benefit to $916.33, the DWC said.

Source: Calif. DWC