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CALIFORNIA FIREFIGHTERS NEWSLETTERŽ

Firefighters

GOV. DAVIS SIGNS NEW LEGISLATION CHANGING WORKERS' COMPENSATION LAW
Many significant changes in the California Labor Code for injuries occurring on or after 1-1-04 have resulted from legislation signed by Gov. Gray Davis on 9-30-03.
One such change will affect workers who sustain spinal injuries on or after 1-1-04 and require sur-gery as a new step has been added to the process.
According to the new legislation, the employer will have 10 days from receipt of the relevant medical report to object and force the parties to use an Agreed Medical Evaluator (AME). In the event the parties will not agree to an AME, the court will appoint an Inde-pen-dent Medical Evaluator (IME).
The evaluator will then have 45 days from the date of the evaluation to render an opinion as to the need for the spinal surgery. If the AME or IME finds need for the surgery, the employer will allow it; if the AME or IME finds no need for surgery, the employer's repre-sentative will file a Declaration of Readiness to Proceed to trial on the matter.

TREATING DOCTOR PRESUMPTION MORE NARROWLY DEFINED BY NEW LEGISLATION

In 2003, the treating doctor presumption was restricted to doctors who had been pre-designated by the injured worker and provided treatment prior to the industrial injury. The new legislation will nar----row the presumption even further:
For injuries occurring on or after 1-1-04, the presumption of correctness will apply solely to the level of permanent disability, and no other issues.

VOCATIONAL REHABILITATION SYSTEM EVISCERATED BY NEW LEGISLATION

The legislative body, in an attempt to appease employers' cry for cost containment, has effectively eviscerated the vocational rehabili-ta-tion system.
At present, an injured worker is allowed up to $16,000.00 for retraining. However, for injuries occur-ring on or after 1-1-04, voca-tional rehabilitation benefits will essentially be replaced by supple-mental job displacement benefits, which are awarded according to the injured worker's level of per-manent disability.
The payment schedule for these new benefits is as follows:
1. Up to $4,000.00 if the permanent disability awarded is 15% or less.
2. Up to $6,000.00 if the permanent disability awarded is between 16% and 25%.
3. Up to $8,000.00 if the permanent disability awarded is between 26% and 49%.
4. Up to $10,000.00 if the permanent disability awarded is between 50% and 99%.
These monies - the supple-men-tal job displacement benefits - are to be used for payment of tuition fees, and for books and other expenses required for school retrain-ing or skill enhancement. Again, these benefits apply to injuries oc-cur-ring on or after 1-1-04.

ALTERNATE DISPUTE RESOLUTION FORUM A COST-SAVING TOOL FOR EMPLOYERS
Employers have had great suc-cess in minimizing benefits offered to injured workers through a pro-gram called the "alternate dispute resolution forum".
Employers who can masterfully cause employee unions or associ-ations to enter into the alternate dispute resolution forum are better able to keep their costs down - at the expense of injured workers.
The new legislation expands the alternate dispute resolution forum to include any employer who has a union with whom they can nego-tiate. This forum is a wonderful tool for employers, but very costly for injured workers in that it denies these workers the options available to other employees who do not fall within the program.
The alternate dispute resolution forum requires bargaining units to agree to give up workers' rights with the employer. Employees should anticipate that their unions and associations will be approached by employers regarding this pro-gram, because it is cost-saving for the employers.

OTHER CHANGES RESULTING FROM THE NEW LAW: OUTPATIENT SURGERY
The new law will change pay-ments for outpatient surgery, and restrict which physicians may receive said payments.

CHIROPRACTIC TREATMENT
Chiropractic treatment has proved to be very beneficial to numerous injured workers. This treatment has allowed many employees to maintain their careers and continue with do-mestic activities through preventive, maintenance or recovery care.
The new law unfortunately limits chiropractic treatment to 24 visits.


RECENT CASES

STATUTE OF LIMITATIONS
In California, statutes of limitations preclude workers from receiving benefits beyond certain time periods. For example, there is a one-year statute of limitations from a worker's date of injury or date of knowledge and a one-year statute of limitations from the date medical care was last received for a particular injury at the expense of the Workers' Com-pen-sation system.
A recent case involved a teach-er's aide who was bitten by a child in 1975 and died in February 1996. The cause of death was found to be Hepatitis C.
The surviving spouse filed a claim for Workers' Compensation benefits in December 1996 - well within the one-year statute of limitations following the employee's death.
The employer argued that the claim was barred by the statute of limitations because the harmful bite occurred in 1975 - well outside one year from the date of injury.
The court analysis spoke to the Hepatitis C exposure occurring in 1975, the decedent not having a diagnosis until March 1995 when a liver biopsy revealed Hepatitis C, the decedent passing on 2-4-96; and the surviving spouse filing for benefits on 12-26--96.
The court analysis then spoke to the definition of occupational disease, citing other cases in which an employee suffered an insidious disease. The court repeated that the date of injury is the date when the worker suffers from the injury - through complaints from the injury or actual disability - and knows through the exercise of reasonable diligence such injury has been suffered in the course of employment; and the statute of limitations will run from the date there is concurrence of both dis-ability and the knowledge of its job connection.
This case re-establishes excep-tions to the statute of limitations when diseases by their very nature do not manifest or become known to the worker until many years after the exposure. In such situations, the statute of limitations may not bar compensation.

PSYCHIATRIC INJURIES
A psychiatric injury claimed by a worker may be barred by a good-faith personnel action.
In this particular case, the worker was promoted, and, because of the promotion, found himself in a position where the demands of the job resulted in psychiatric injury. The employer sought to apply Labor Code §3208.3(h), indicating the promotion which caused damage to the worker was a good-faith personnel action.
The court ultimately opined that the promotion did not fall within the definition of "personnel action" as set forth in other cases. A personnel action was seen by the court as act of the employer which is not positive but seeks to review, criticize or discipline the employee.
Personnel actions also may encompass transfers, demotions, lay-offs and performance evaluations. However, as currently described in the Labor Code, they do not contem-plate something that is not adverse to the worker.

"HORSES AT PLAY" IN THE WORK ENVIRONMENT
Recently, this office litigated a case in which the injured worker had been lifted in the air and dropped by a co-worker. The employer's defense was "horseplay" - the engagement of two people in a playful manner, not as aggressors - with one individual sustaining injury at work as a result.
The employer in the PetSmart case alleged they did not have actual or constructive knowledge of the ongoing and habitual horseplay which was initiated by the injured worker and engaged in on an intermittent basis.
However, the facts of the case indicate there were numerous inci-dents of horseplay which the super-visor observed, or even initiated, and did not take corrective action.
The Court of Appeal upheld the Workers' Compensation Appeals Board's decision that the employer did indeed have actual or constructive knowledge, and the worker's injury was caused by customary and habitual horseplay. Therefore, the injured worker was eligible to receive Workers' Compen-sation benefits.
Had the employer been able to demonstrate the horseplay was an isolated event - initiated or par-ticipated in by the injured worker - the worker would have been in a position to have his Work-ers' Compensation benefits denied.


ALTERNATE DISPUTE RESOLUTION SYSTEM CHALLENGED
A California worker whose union had agreed that its members would be subject to the alternate dispute resolution system for Workers' Com-pensation was unhappy with the bene-fits he can receive under this limited sys-tem. The worker there-fore challenged whether the alter-nate dispute reso-lution system agreed to by his union and his employer could control his rights and his avenues to benefits.
The Workers' Compensation Appeals Board, after review of the various steps taken by the employer and the union, determined the worker was not entitled to the regular Workers' Compensation benefits to which other California workers are entitled, because his union had accepted this negotiated item.
A petition for writ of review to the Court of Appeal was denied on 4-27-03, affirming the contract and eliminating the worker's ability to receive normal Workers' Compensation benefits.


CALIFORNIA FIREFIGHTERS NEWSLETTERŽ
is written by Scott A. O'Mara and published periodically by:


THE LAW OFFICES OF
SCOTT A. O'MARA
1-800-LAW-1199 (1-800-529-1199)

O'MARA & HAMPTON
2370 5th Ave., San Diego, CA 92101
Tel.: 619-239-9885 Fax: 619-239-3523

4049 Brockton Ave., Riverside, CA 92501
Tel.: 909-276-1199 Fax: 909-276-1485


O'MARA & PADILLA
12770 High Bluff Dr. o Ste. 200
San Diego, CA 92130
Tel.: 858-481-5454 Fax: 858-720-9797

NOTICE:
Making a false or fraudulent workers' compensation claim is a felony subject to up to five years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprison-ment and fine.



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