Work Comp IQ

What is your Work Comp IQ? 90 - 100 - Work Comp Genius 70 - 80 - Work Comp Expert 60 - 70 - Work COmp Rookie 50 - 60 - You need help! Take the test! Coming Soon.....

SB893 Is Alive and Kicking

As we all know, 1/1/2013 has brought some dramatic changes to the Workers' Compensation World. I will be posting a series of reviews of the new laws in the coming weeks. Also, please go to http://www.workcomptv.com/legal for a synopsis.

Work Comp IQ

What is your Work Comp IQ? Are you up to date on the latest rules of practice and procedure for:

1. Managing clams?

2. Settling claims?

3. Managed Care?

Take the Work Comp IQ test and use the results to target your training needs.

Check the http://www.workcomptv.com website in early 2013 to take the test. Instant results.

JLG

New WCAB Rules of Practice & Procedure

New Workers’ Compensation Appeals Board rules of practice and procedure became effective Nov. 17, 2008

Changes to the rules of practice and procedure of the Workers’ Compensation Appeals Board (WCAB) went into effect Nov. 17, 2008 and are now posted on the WCAB’s Web site at http://www.dir.ca.gov/WCAB/WCABRulemaking.html.

There are numerous changes to the rules, some highlights of which include:

Adopting new rule 10397 relating to restrictions on the rejection for filing of documents that are subject to a statute of limitations or a jurisdictional time limitation
Adopting new rule 10403 relating to the need to file an application or other case opening document before the jurisdiction of the WCAB can be invoked and before compelled (i.e., non-voluntary) discovery can be commenced
Amending rule 10500 so as to place all of the provisions relating to service by the WCAB into a single rule (i.e., former Rule 10520 is repealed)
Amending rule 10505 so as to put all of the service provisions relating to parties and lien claimants into a single rule (i.e., former Rule 10514 is repealed). Rule 10505 addresses personal, mail, e-mail and fax service by the parties and lien claimants (the latter two types of service being new under EAMS), including service on another party or lien claimant using its designated preferred method of service (see court administrator rule 10218). Rule 10505 also addresses the duty to re-serve a document, when the serving party or lien claimant receives notice that its service on another party or lien claimant has failed
Amending rule 10507 addressing the time requirements for a party or lien claimant to act or respond when served with a document. Among other things, the former “five-day rule” – which had extended the time within which to act or respond when service was madeby mail on an address in California – now also applies to service by fax or e-mail, if the “physical address” of the party or lien claimant being served is within California
Adopting new rule 10550 relating to the obligation of parties and lien claimants to properly identify themselves in pleadings and when appearing at hearings
Amending rule 10561 relating to sanctions. The amendments are extensive and detailed
Amending rule 10629, which now sets forth specific requirements regarding the filing and listing of exhibits
Amending rule 10770 relating to required procedures for the filing and service of lien claims
Adding rule 10770.5, which sets forth various verification and other requirements for lien claims and applications filed by medical and/or medical-legal lien claimants
Adding rule 10770.6, which sets forth various verification and other requirements for declarations of readiness filed by medical and/or medical-legal lien claimants
Adding rule 10782 regarding vexatious litigants
Amending rule 10840 to provide that petitions for reconsideration, removal, and disqualification (and answers thereto) may be filed with any WCAB district office or with the office of the appeals board in San Francisco. [NOTE: Under amended Rule 10840, petitions for reconsideration, removal, and disqualification relating to WCJ decisions no longer need to be filed at the district office from which the decision issued, and petitions for reconsiderationfrom appeals board decisions no longer need to be filed with the office of the appeals board in San Francisco. Instead, such petitions may be filed at any office. However, amended rule 10840 relates only to petitions for reconsideration, removal, and disqualification (and answers thereto). Therefore, all other documents – including but not limited to other types of petitions (e.g., penalty petitions, 132a petitions, etc.) are to be filed at the appropriate district office, absent a specific exception under the rules of the WCAB or court administrator.] However, where a petition is filed in one district office, duplicate copies of the petition are not to be filed in any other district office or with theappeals board.
Amending rule 10842, which now imposes various requirements relating to the contents of petitions for reconsideration, removal and disqualification (and answers thereto), including but not limited to a requirement that evidentiary statements shall be supported by references that state with specificity the place in the record where the evidence supporting the statement appears. Rule 10842 still provides that documents which are already in evidence or are otherwise already part of the adjudication file shall not be attached to petitions for reconsideration, removal and disqualification (and answers thereto)
Amending rule 10843 and adding rule 10844, so as to require that petitions for removal and for disqualification (and answers thereto) must be verified under penalty of perjury
Adding rule 10845, which in essence requires that, except as otherwise provided by sections 10840 or 10865, all documents filed in connection with any petition for reconsideration, removal, disqualification or any other matter pending before the appeals board shall comply with various court administrator regulations relating to the time, place, and form for filing documents. Rule 10845 specifically requires that such petitions and other documents comply with 25-page limitation of court administrator rule 10232(a)(6), but rule 10845 further requires that any supplemental petition or answer submitted under rule 10848 shall not exceed 10 pages, unless otherwise directed by the appeals board.
Amending rule 10865, relating to petitions for reconsideration from arbitration decisions in “carve-out” cases. [NOTE: Although new rule 10840 generally allows petitions for reconsideration to be filed at any WCAB office, petitions for reconsideration in carve-out cases are an exception to rule 10840. Because most carve-out cases will never have been in the WCAB system, petitions for reconsideration in carve-out cases must be filed directly with the appeals board in San Francisco.]
Amending rule 10866, relating to petitions for reconsideration from arbitrator decisions made under the mandatory or voluntary arbitration provisions of Labor Code sections 5270 through 5275.
Repealing numerous other rules, whose subject matter will now be covered by the new regulations of the court administrator, which also became effective on Nov.17, 2008. [NOTE: Thecourt administrator’s new regulations are posted on the Division of Workers’ Compensation’s Web site at: http://www.dir.ca.gov/dwc/DWCPropRegs/EAMS_regulations/EAMS_regulations.htm.]

Lien Negotiation Seminar

NEW CLASS ANNOUNCEMENT
Announcing, the first class in our - Industry Education Series - A series of Educational Forums provided to the Workers' Compensation Industry

NEGOTIATING AND SETTLING LIENS

DATE: 3/19/2009

LOCATION: Scott's Jack London square

TIME: 8:30 am to 1:00 pm

Register now at http://www.workcomptv.com/registration.html

Spend $150 and save thousands!

Class includes: Legal perspective from Dave Schmit, Esq.; EDD Rep participation, Retired WCAB Judge and Hearing Rep perspective!

The Second Class of The Series will be announced shortly for May 2009.

"Preparing For A Utilization Review Audit"

1. Avoid penalties and fines
2. Improve your company Best Practices for UR
3. Receive a passing score on your audit
4. Save your company money

Negotiating and Settling Liens

NEW CLASS ANNOUNCEMENT
Announcing, the first class in our - Industry Education Series - A series of Educational Forums provided to the Workers' Compensation Industry

NEGOTIATING AND SETTLING LIENS

DATE: 3/19/2009

LOCATION: Scott's Jack London square

TIME: 8:30 am to 1:00 pm

Register now at http://www.workcomptv.com/registration.html

Spend $150 and save thousands!

Class includes: Legal perspective from Dave Schmit, Esq.; EDD Rep participation, Retired WCAB Judge and Hearing Rep perspective!

The Second Class of The Series will be announced shortly for May 2009.

"Preparing For A Utilization Review Audit"

1. Avoid penalties and fines
2. Improve your company Best Practices for UR
3. Receive a passing score on your audit
4. Save your company money

Court Rejects "Honest Misperception" Standard

Court Rejects "Honest Misperception" Standard - Objective Evidence of Harassment Required for Injury



One of the unanswered questions that we have had since the revisions to Labor Code § 3208.3 in July of 1993 is exactly what impact the statutory changes had on the concepts outlined in the Alberson's v W.C.A.B. (Bradley) case that established a "subjective perception" standard for an injured worker's development of a psychiatric disorder related to employment. The Appeals Court in Albertsons' held that the test for whether an employers conduction resulted in as stress full work environment depended on the employee's perception of the events of work and that as long as the employee "honestly perceived" the employment situation as being stressful, the burden for proving injury had been met.



As part of the 1993 reforms, the legislature imposed a higher standard for proof in psychiatric cases, requiring "actual events" of employment to be predominate as to all causes. Subsequent cases have helped to define what is and is not a work related event (PG & C v W.C.A.B. (Barnes) held that dips in the employee's retirement plan due to stock fluctuations was not an event of employment). However viability of the "honest perception" standard has not been addressed in appellate law, until now.



In Verga v W.C.A.B. & United Airlines, the 3rd Appellate district has taken the issue head on and clearly indicated that the "honest perception" standard was intentionally abrogated by the legislature with the changes to Labor Code § 3208.3:



"Section 3208.3, subdivision (b)(1) "was intended to overrule [Albertson's]" (1 Hanna, Cal. Law of Employee Injuries and Workers' Compensation, supra, § 4.02[3][b], p. 4-22) by imposing "more stringent requirements for [psychological injuries] than the subjective standard set forth in Albertson's." (Save Mart Stores v. Workers' Comp. Appeals Bd. (1992) 3 Cal.App.4th 720, 724, fn. 3.)

Thus, for claims like those tendered in Albertson's and in this case, we agree with a leading treatise on workers' compensation law that the "actual events of employment" language added by section 3208.3, subdivision (b)(1) "can be interpreted" as requiring the employee to establish "objective evidence of harassment, persecution, or other basis for the alleged psychiatric injury." (1 Hanna, Cal. Law of Employee Injuries and Workers' Compensation, supra, § 4.02[3][b], p. 4-22.) That interpretation, which we adopt, is the one most consistent with the purpose of the statute, and is the interpretation applied by the WCAB in this case (citation omitted)"



In the Verga case, the W.C.A.B. determined that the employee's own actions in being hostile and inappropriate with co-employees was the actual cause of the applicants job stress, not the actions of the employees in the situation. The employer presented evidence from multiple employees all attesting that the applicant



"...was rude, inflexible and easily upset, and caused stress to co-workers, who at the staff meeting on January 14, 2000, advised Verga of their dissatisfaction with her behavior...

In sum, the evidence established that Verga had a very low frustration level and abused her co-workers when they did not meet her expectations. Although her co-workers reacted with disdain in their efforts to change Verga's behavior, their disdain was relatively benign. Verga was the aggressor, and she created the negative work atmosphere that she asserts caused her psychological injuries. Allen and Pena attempted to counsel Verga that her rudeness and inflexibility was counterproductive; but she chose to ignore their advice and continued to belittle her co-workers. She willfully demeaned her fellow employees.

"



The W.C.A.B. determined that the applicant's perception of the co-employee's reactions to her was not the predominate cause of the job stress but that it was her conduct, which resulted in the co employee's responses to her that provoked the stressful reaction in applicant.



The court noted that Workers' Compensation is intended to be a no-fault system, but also concluded that a no fault system did not require that stress which was caused by the IW own conduct be considered as arising out of the job setting. The court also rejected Verga's argument that regardless of the accuracy of applicant's perception of the events of employment:



"...they were actual events of employment that caused her stress and resulting psychological injury. In her view, the WCAB improperly introduced an element of fault into the no-fault workers' compensation system by finding that Verga cannot recover compensation because the workplace events that caused her psychological trauma were in response to her own bad behavior. "



As noted by the court, such an interpretation would again inject the honest perception standard into the definition of psychiatric injuries;

"Conceding that the law no longer allows workers' compensation for a claim of psychiatric injury based on the claimant's "honest misperception of the events of the workplace," Verga nonetheless argues the WCAB's finding that she was subject to the disdain of her co-workers is objective evidence of her psychiatric injury when considered together with medical evidence that the disdain caused her to suffer such injury. In her view, because workers' compensation is a no-fault system, it does not matter that it was her own conduct that instigated her coworkers' disdain.

However, the evidence does not support Verga's claim that her co-workers' "disdain" caused her psychiatric disability, let alone that it was the predominant cause of such injury. Dr. Segal's view of the cause of Verga's injury was based on her version of the abuse and persecution to which she allegedly was subjected by co-workers. But the WCAB found that such abuse and persecution did not occur. In Dr. Duncan's view, the predominant cause of Verga's psychiatric injury was her own behavior, as well as legitimate personnel actions. Neither doctor opined that the predominant cause of Verga's injury was the mere disdain of her co-workers.

Verga's position that she should get workers' compensation for work-related stress because she perceived her fellow employees' disdain as unusually stressful and persecutory events, although they objectively were not, resurrects the subjective standard of Albertson's, supra, 131 Cal.App.3d 308. This is contrary to the Legislature's intent in enacting section 3208.3, subdivision (b)(1). "

This case provides another tool for employer's to defend psychiatric claims where the actual disorder arises out of the employee's perception of valid employment related conditions especially where the employee is the one cause the hostility within the workplace. Obviously presenting such cases will require very fact intensive records to be developed with arguments bordering on allegations of fault on both sides. However the court's description of the legal standards to be applied is relatively clear as its rejection of the Albertson's "honest misperception" standard as a basis for injury.



This case is an important step in understanding the nature of psychiatric injuries in California Workers' compensation law. A copy of the case is attached to this message and a link to the appellate case in available by clicking on the case name above.