by donald barthel& amir f. adil bradford & barthel, llp · pdf file1/29/2016 1 by...
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1/29/2016
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By Donald Barthel & Amir F. Adil
Bradford & Barthel, LLP
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LC 5705 Burden of proof;
affirmative defenses."The burden of proof resets upon the party...holding the affirmative of the issue. The following are affirmative defenses, and the burden of proof rests upon the employer to establish them”:
a) That an injured person claiming to be an employee was an independent contractor or otherwise excluded from the protection of this division where there is proof that the injured person was at the time of his or her injury actually performing service for the alleged employer.
b) Intoxication of an employee causing his or her injury.c) Willful misconduct of an employee causing her or her injury.d) Aggravation of disability by unreasonable conduct of the
employee.e) Prejudice to the employer by failure to give notice, as required by
Sections 5400 and 5401.
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File an Answer...WHY?
LC 5505: "Evidence upon matters not pleaded by answer shall be allowed only upon the terms and conditions imposed by the appeals board or [WCJ] holding the hearing."
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File an Answer...
Reg 10484: “Evidence upon matters and affirmative defenses not pleaded by Answer will be allowed only upon such terms and conditions as the appeals board or [WCJ] may impose in the exercise of sound discretion."
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In other words…FAIL TO PLEAD AT YOUR
OWN RISK
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The best defense ever....?
it-ain't-happened
dang Applicant made it up
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Early California Foods v WCAB
(Ellis) 56 CCC 137 (1991)� Facts: def failed to raise earning issue in
Answer/Amended Answer
� Held: precluded from raising earnings/TD overpayment at trial
aka
WAIVE GOOD BYE!
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Filing & Service of AnswerANSWER
WHEN?
DOIs 1/90 to 12/31/93 = filed & served w/in 6 days of service of App
DOIs pre-1/90 & o/a 1/1/94 = 10 days after service of DOR
Rule 10480; LC 5500
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Filing & Service of AnswerPROCEDURAL REQUIREMENTS
"The Answer used...shall conform to a form prescribed and approved by the Appeals Board...”
"A general denial is not an answer within this rule...”
"Evidence upon matters and affirmative defenses not pleaded by Answer will be allowed only upon such terms and conditions as the [WCAB] or [WCJ] may impose in the exercise of sound discretion.”
Reg. 10484
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ANSWER ADVANTAGES:1. avoids waiver
2. assures timely notice of defense issues (helps avoid continuances)
3. focuses discovery efforts
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It's not like we're overworked with
pleadings...
� LC 5500: "No pleadings other than the application and answer shall be required..."
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Filed an Answer that
Contains a Mistake?!?!?!?
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All is not lost:Bryant v. Staffmark Investment LLC, 2010 Cal. Wrk. Comp.
P.D. LEXIS 172, (4/26/10)
FACTS:
� Answer stip'd to AWW=$750
� later discovery EE was min wage earner
� At PTC, DA amended the earnings admission on the Pretrial Conference Statement...
"earnings were in dispute"
� WCJ held, Answer = "admission" (IW qualified for max TD/PD rates)
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WCAB reverses!“[D]efendant's answer...was a pleading, which can be amended in later proceedings…before submission for determination by the WCJ at trial."
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"Labor Code section 5500 makes it clear that an answer is a form of pleading, which…may provide for 'the furnishing of any additional information as the appeals board may properly determine necessary to expedite its hearing and determination of the claim.' …The parties' execution of the stipulations and issues statement was sufficient to withdraw defendant's prior admi[ssion].”
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AFFIRMATIVE DEFENSES (codified)1. Independent Contractor: LC 3353 & 2750.5
2. Intoxication: LC 3600(a)(4)
3. Prejudicial Lack of Notice: LC 5400
4. SOL: LC 5402-5412
5. The injury was caused by the IW’s commission of a felonious act for which he/she has been convicted:
LC 3600(a)(8)
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AFFIRMATIVE DEFENSES (non-codified)6. Lack of WCAB jurisdiction
7. Injury caused by IW's S&W
8. Willfully Self-Inflicted Injury
9. Willful Suicide
10. Initial Aggressor
11. “Going & Coming” Rule
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AFFIRMATIVE DEFENSES (non-codified)12. Non-Salaried Partner
13. Employment Category Excluded from W.C. law
14. Subrogation/Third Party Recovery
15. Unreasonable Refusal to Submit to Treatment
16. Unreasonable Refusal to Submit to Examination
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AFFIRMATIVE DEFENSES (non-codified)17. Horseplay
18. “Rashly Undertaken Activity”
19. Apportionment
20. By carrier: lack of ins coverage; special general; site specific
21. The claim is barred by a prior compromise and release executed by the IW. (Johnson v WCAB (1970) 35 Cal. Comp Cases 362.)
22. Post Termination
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Nearly 2 dozen defenses!!!
A lot to "wave good-bye” to:
EXCEPTION: jurisdiction*
*may be raised anytime before the decision becomes final
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AFFIRMATIVE DEFENSES (codified)1. Independent Contractor
LC 3353: "'Independent contractor' means any person
who renders service for a specified recompense
for a specified result, under the control of his
principal as to the result of his work only and
not as to the means by which such result is
accomplished.”
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Independent Contractorany person who:
a. renders service for a specified recompense for a specified result
b. under the control of his principal as to result of work only
c. not under control of principal as to the means of accomplishing the result
Simple, huh!?!?!?
NOT SO FAST
Decided on case-by-case basis
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Independent ContractorLC 2750.5:
"Proof of independent contractor status includessatisfactory proof” of these factors:
a) "That the individual has the right to control and discretion as to the manner of the performance of the contract for services in that the result of the work and not the means by which it is accomplished is the primary factor bargained for."
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Independent Contractorb) "That the individual is customarily engaged in an
independently established business."
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Independent Contractorc) "The individual's independent contractor status is
bona fide and not a subterfuge to avoid employee status."
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In addition to (a)-(c):"any person performing any function or activity for which a license is required [per the Business & Professions Code] shall hold a valid contractors' license as a condition of having independent contractor status."
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Independent Contractor
Evidence that IC Status isn't a "subterfuge” is
evidenced by cumulative factors like:
� "substantial investment...in the business”
� "holding out to be in business for oneself” (business cards? ads? signs?)
� "bargaining for a contract to complete a specific project for compensation for project rather than by time”
� "control over the time and place the work is performed”
� "supplying the tools”
� "hiring employees"
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Cumulative factors continued…Evidenced by cumulative factors, such as:� “performing work that is not ordinarily in the course of the
principal's work”� "performing work that requires a particular skill”� "holding a license pursuant to the Business and Professions
Code"� "the intent by the parties” � "the relationship is not severable or terminable at will by
the principle but gives rise to an action for breach of contract"
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2. IntoxicationEmployer liability...
LC 3600(a)(4) "Where the injury is not caused by the intoxication, by alcohol or the unlawful use of a controlled substance of the injured employee... 'controlled substance' shall have the same meaning as prescribed in Section 11007 of the Health and Safety Code."
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2. Intoxication"Controlled Substance”—long list—includes:
amphetamine
coca leaves
methadone
marijuana
Phenobarbital
morphine
opium
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2. Intoxication"unlawful use”—not necessarily improper/negligent use
2-pronged test: to determine whether controlled substance was
(a) obtained illegally, and/or(b) was obtained legally but used in an unlawful manner
EX-1: doesn't have prescription (e.g., is properly prescribed, but for a different individual.)
EX-2: IW doesn't have a valid prescription (e.g., a prior prescriptionhas expired and/or has been materially altered.)
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2. IntoxicationDefense requires proof IW:
a) used a covered intoxicant
note: statutory defense does not cover 1991 or later injuries caused by IW’s lawful use of a controlled substance or use of any uncontrolled substances other than alcohol
b) was intoxicated
c) proximate causation*
*proximate cause = bar (got it?!?)
EX: Drunk in hotel room and roof collapses.
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3. Prejudicial Lack of NoticeLC 5705 Burden of proof; affirmative defenses.
"The burden of proof rests upon the party...holding the affirmative of the issue. The following are affirmative defenses, and the burden of proof rests upon the employer to establish them”:
e) Prejudice to the employer by failure to give notice, as required by Sections 5400 and 5401.
LC 5400 "...no claim to recover compensation...shall bemaintained unless within thirty days after theoccurrence of the injury...there is served uponthe employer notice in writing, signed by theperson injured or someone in his behalf..."
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4. SOL (LC 5400-5412)
STATUTES of LIMITATION
Purpose: Encourage prompt pursuance of legal remedies so evidence will be current/available.
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STATUTE OF LIMITATIONS
IF no benes/comp/treatment furnished, APPLICATION must be filed within
ONE YEAR
FROM
DATE OF INJURY
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STATUTE OF LIMITATIONS
IF benes/comp/treatment furnished, APPLICATION must be filed within
ONE YEAR
FROM
LAST PAYMENT/BENE
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What kind of
benes/comp/treatment count?
ANY!
EX: Pain pills, wages during disability, etc.
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NOTE:Years may go by and, if some form of treatment is given, the one year within which to file is counted from that date.
PRACTICE POINTER: Employers may inadvertently breathe new life into a claim that would otherwise be barred by the SOL.
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Example: file closed due to SOL* Adjuster fails to notify treating doctor of file closure
* Unsuspecting treater provides treatment
Holding: By giving physician authorization to treat,
carrier makes doctor its agent; if agency
not terminated by specific notice, doctor's
actions may continue to extend SOL
PRACTICE POINTER: Give written notice to EE and Drwhen benes have terminated w/a specific statement that no further treatment is to be given w/out prior authorization.
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90 DAY CLOCKSpeaking of SOLs,
When does the
90 Day Clock
REALLY
Start Ticking!?!?!?
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90 DAY CLOCKHoneywell v. WCAB (Wagner)
(2005, CA Sup Ct)
Facts:
7/98: IW complains of work stress
10/98: psych hospitalization
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HoneywellFACTS:
wife notifies ER...
...asserts "work stress" is cause...
...asks for "disability" form...
Er provides unemployment forms, not DWC-1
1/15/99 (6 MONTHS after first complaints of work stress): DWC-1 received
3/31/99 (75 days later): Claim denied
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HoneywellISSUE: Is a denial that issues 75 days after DWC-1 is received—but 8 MONTHS after notice of work injury—LATE?
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HoneywellWCJ Held:
1. ER breached duty to provide claim form in a timely manner;
2. Claim wasn't denied w/in 90 days of the breach, and, thus;
3. Injury presumed compensable under LC 5402(b) (“If liability is not rejected within 90 days after the date the claim form is filed…,the injury shall be presumed compensable…”)
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HoneywellWCAB En Banc Held: LC 5402's 90-day period begins when
a. EE files the claim form, or
b. ER is "reasonably certain" an injury was suffered or is being claimed and breaches the duty to provide a DWC-1,
ON REMAND, WCJ found ER "reasonably certain" as
of 10/98 and, thus, presumed compensable
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HoneywellSupreme Court says...
"reasonably certain" ain't in the statute!!!!
HELD: 90-day period for denial begins from the date EEfiles a claim form, "not from the date the [ER] receives notice or knowledge of the injury or claimed injury."
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Honeywell
1) EE's burden: notify ER of injury [unless notice is unnecessary b/c ER already knows of the injury/claimed injury from other source(s)]
2) ER's burden: inform EE of his/her possible rights and provide DWC-1
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Honeywell
3) EE's burden: to decide when/whether to file DWC-1 w/ER
ONLY WHEN DWC-1 IS FILED DOES ER HAVE NEW BURDEN:
4) ER(Insurer) must conduct 90 day investigation
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90 Days runs from the date EE files the claim form,
NOT
"from the date the [ER] receives notice or knowledge of the injury or claimed injury."
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Honeywell
ER will be ESTOPPED from denying the period began before the filing date IF:
a. ER, knowing EE had suffered or was asserting an industrial injury, refused to provide a DWC-1, or misrepresented the availability of or need to file a DWC-1; and
b. EE was actually misled and failed to file a claim for that reason; and
c. because of this reliance, EE suffered some loss of benefits or setback as to the claim.
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NEW & FURTHER DISABILITYIW has 5 years from the DOI to institute proceedings for any "new and further disability" caused by the original injury.
"New & Further Disability" refers to cases where an Application has been filed or in which ER has recognized the injury and furnished some benefit.
Think: There is already WCAB jurisdiction.
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EXAMPLE AFacts: EE given booklet including WC program, benes and procedures at DOH
* WC posting on wall above coffee pot in EE lounge
* IW twists ankle at work
* B/c thinks it is "minor", doesn't report to anyone
* 2 years later, files Application
* Defense asserts SOL
Holding?
Barred: (filed >1 year after DOI)
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EXAMPLE BFACTS: IW injured in 11/99 MVA
* Receives treatment for 7 yrs
* 6 months after treatment stops,
files Application
* Defense asserts SOL
Holding?
Not barred (filed w/in 1 year after last treatment)
(LC 5405)
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EXAMPLE CFACTS: back strain = 11/16/79
* 12 wks TD
* 5 months treatment thru to 4/80
* Application for PD filed 10/31/84
* Defense asserts SOL
Holding?
Claim not barred b/c PD is a New & Further Disability
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EXAMPLE DFACTS: 6/16/76 - severe hand injury in milling machine
* Treatment provided through 12/10/76* 12/11/76 = RTW* 12/25/76 = files Application for PD* Hearing for PD “OTOC'd" b/c receiving TD/treatment* Fires AA* Leaves CA 1977- Spring, 1982* 4/92 = Files another Application for PD* Defense asserts SOL...2nd Application was:
a. >1 year after last bene, andb. >5 years after DOI
HOLDING?
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EXAMPLE D (con't)
HOLDING: claim not barred
REASONING: Original Application was timely, raised an issue that was never decided; 2nd App. unnecessary
POINT? WCAB has continuing jurisdiction to decide any issue which is raised in a timely fashion but not resolved.
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DEATH CASES & SOLDependent(s) must file any App. for death benefits:
(a) w/in 1 year from the date of EE's death AND(b) w/in 240 wks from the DOI
LC 5406: No proceedings for death benefits "may becommenced more than one year after date ofdeath, nor more than 240 weeks from the dateof injury.”
*Note: Under 5402, upon receiving notice of knowledge of a claim of injury (or, as under Reynolds, facts which would put an ER on notice of a possible claim of injury) resulting in death, ERmust give EE's dependents notice that they may be entitled to death benefits.
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DEATH, ASBESTOS & SOL
Death benes proceedings must be commenced w/in one year from the date of death (regardless of the date of injury)! (LC 5406.5)
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S&W Misconduct SOL
AGAINST ER: must be filed w/in "twelve months from the date of injury." (LC 5407)
note: 12 months are not extended by:
a. payment of benes/comp, and/or
b. any agreement to pay, and/or
c. filing an App. for "normal" benes
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132a (Discrim. Because of Claim)
"Proceedings...are to be instituted by filing an
appropriate petition...not...more than one year
from the discriminatory act or date of termination
of the employee."
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5. Felonious Act“Is your criminal activity causing you heart burn?
Call CAAA! … Operators are standing by.”
� Is the IW “in fact” guilty of the criminal activity.. then may be barred.
� Instead of bar to benefits—Possible reduction of IW’sbenefits (EE’s S&W).
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Felonious Act� Non-compensible IF
a. injury occurs during commission of felony,
b. for which IW is convicted
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Affirmative Defense (non-codified)6. Lack of WCAB jurisdiction
Competence de la competence
Exclusive Remedy – Work related claims adjudicated solely by the WCAB. LC §§ 5300-5301.
What work related injury is not exclusively w/in WCAB’sjurisdiction?
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Lack of WCAB jurisdiction (con’t)SOME EXAMPLES
� Federal railroad employees and the Federal Employers’ Liability Act
� Injury on federally recognized tribal land (sovereign immunity for ER that is a federally recognized Indian tribe)
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Lack of WCAB jurisdiction (con’t)� Admiralty maintenance or Jones Act and a seaman’s
separate exclusive remedies under federal and state courts.� EE is a seaman with relationship to vessel
� Maritime activities
� navigable boat or is it on dry land getting services/overhauled?
� Longshore and Harbor Workers’ Compensation Act: Local contacts� More local contacts on land = WCAB
� Less local contacts = increased chances for Longshore Act
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Lack of WCAB jurisdiction (con’t)SOME EXAMPLES
� Outer Continental Shelf Lands Act (OCSLA)
� Death on the High Seas Act (DOHSA)
� Independent Cause of Action, e.g., Pregnant EE’s fetus directly injured by ER’s actions like negligence can sue in civil court
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Lack of WCAB jurisdiction (con’t)� Vehicle Code § 17150: negligent operation or
loaning of a motor vehicle means the OWNER of the car has civil liability outside of WCAB jxn. EEswere able to sue owner of car (owner was not their ER) in Galvis v. Petito (1993) 58 Cal.Comp.Cases 75.
� ADR— LC 3201.5 — As part of a CBA, some claims are carved out of the WCAB*
*Appeals still go to Recon Unit
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7. Injury caused by IW's S&WLC 4551 Willful misconduct of injured employee.
"Where the injured is caused by the serious and willful misconduct of the injured employee, the compensation otherwise recoverable therefrom shall be reduced by one-half, except:
a) Where the injury results in death.
b) Where the injury results in [PD] of 70 percent or over.
c) Where the injury is caused by the failure of the employer to comply with any provision of law, or any safety order of the Division of Occupational. Safety and Health, with reference to the safety of places of employment.
d) Where the injured employee is under 16 years of age…”
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7. Injury caused by IW's S&WFoolish action in jumping off a roof while supervisor went to get a taller ladder was deliberate:
Grant Joint Union (BUTLER) 72 CCC 1518, quoting WCAB,
"Applicant did not leap with reckless abandon from the roof,without considering the consequences. Applicant's hesitation,
conversations with witnesses, and preparations show, notwanton and reckless disregard of the consequences, but
a process of deliberation and, unfortunately, miscalculation.Poor judgment, yes; serious and willful misconduct, no."
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8. Wilfully Self-Inflicted
Injury [LC 3600(5)]Does not cover carelessness/negligence!
ER must prove:(a) EE's actions were intentional, AND(b) EE's behavior was not merely negligent, AND(c) The injury was caused by the intentional act, AND(d) (i) an injury was the intentional result of EE's intentional act, OR
(ii) the reasonably foreseeable or predictable result of the action taken by the EE is an injury, albeit a more minor injury than the one that was sustained.
EX: Hit wall with fist in anger.Breaks fingerDefensible?
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9. Wilful SuicideONLY covers where EE "willfully & deliberately" caused
own death!
-not all suicides are covered! [LC 3600(a)(6)]
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9. Wilful Suicide
ER must prove:
1. death was self-inflicted
2. IW wanted to die and took deliberate steps to do so
3. no connection between a previous industrial injury and the later suicide
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9. Wilful SuicideIf dependents argue "irresistible impulse", ER must disprove…that is, prove:
a. EE was capable of taking willful/deliberate action,
b. did so,
c. reasons were personal and independent of a prior industrial injury
Look for suicide note
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10. Initial Aggressor
LC 3600: EE not entitled to compensation for injuries caused by "an altercation in which the injured employee is the initial aggressor".
The unplanned injury...EE intentionally assaults another person who retaliates and injures his aggressor.
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10. Initial AggressorTwo questions:
a. Who initiated the altercation or was the initial physical aggressor?
b. What was the subject matter of the dispute?
-to be compensable, injuries must be work-related
-if totally personal, injuries aren't compensable
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10. Initial AggressorTo qualify as "initial aggressor", must cause intended victim to:
a. have a subjective belief of endangerment,
b. that is objectively reasonable
Need not actually strike intended victim!
EX. assuming threatening tone and rapidly approaches another person while wielding a weapon
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10. Initial AggressorUsually swearing contest: "He did it!”
"No. He did it”
Lots of finger pointing between combatants
DEFENSE STRATEGY: Admin Rule CR 10590 allows for consolidation of proceedings in "two or more related cases" for "the purpose of receiving evidence"
Thus, only one judge to ascertain truth!
Avoids unjust results: two winners or two losers
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11. “Going & Coming” Rule� General Rule: injuries that occur going to or coming
from work during a normal commute are non-compensable.
� Logic:
a) EE isn't rendering services to ER during commute
b) theory: the employment relationship is suspended when EE leaves work until EE returns
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Leaves EE lots of options:
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More exceptions than...
...Swiss cheese has holes!
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Smith v. W.C.A.B. (1968)69 C.2d 814.73 Cal. Rptr. 253, 33 C.C.C. 771.
� FACTS: IW injured driving to work
� when hired, told some work req'd his car
� injured in MVA
� if made it to work, would have stayed on ER premises all day
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Smith� HELD: AOE/COE
� REASONING: having a personal vehicle available at work was
“express condition of employment”
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Hinojosa v. W.C.A.B. (1972)8 C.3d 150, 105 Cal. Rptr. 456, 37 C.C.C. 734
� FACTS: IW injured on way to work
� several job sites
� EE worked at 2 different job sites on same day 1 x wk
� job sites > one-half mile apart
� ER doesn’t provide transportation
� ISSUE: Going & Coming apply?
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Hinojosa
HOLDING:
REASONING: having personal vehicle at work is an “implied condition of employment”.
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12. Non-Salaried Partner of Def
Why DRB should not get benes!!!
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12. Non-Salaried PartnerLC §§ 3351 & 3360
� Partners are not employees of each other.
� Ask: Did EE receive wages or salary regardless of performance/income of Co?
� If Yes: S/he is an EE (income not dependent on Co.) and Covered EE!
� If No: S/he is a partner (income dependent on Co so NO benefits!
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13. Employment Category Excluded
from W.C. law (LC 3352)(i) Family Affairs
LC 3351/3352:(a) persons employed by his/her(b) *parent, *spouse, *child(c) who is "the owner or occupant of a residential dwelling",(d) "whose duties are incidental to the ownership,
maintenance, or use of the dwelling, including the care and supervision of children," or
(e) "whose duties are personal and not in the course of trade, business, profession, or occupation of the owner or occupant."
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13. Employment Category Excluded
from W.C. law (LC 3352)(ii) Aid & Sustenance
LC 3352(b) Exclusions from term "employee" include
"Any person performing servicesin return aid or sustenance only,
received from any religious, charitable,or relief organization."
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13. Employment Category Excluded
from W.C. law (LC 3352)(iii) Voluntary Ski Patrol
-no pay other than meals/lift ticket?
NOT an "employee"
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13. Employment Category Excluded
from W.C. law (LC 3352)(iv) Ski Lift Operators
"relieved of and not performing any prescribed duties"?"participating in recreational activities on his or her own initiative"?
NOT an "employee"
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13. Employment Category Excluded
from W.C. law (LC 3352)
“ETC., ETC., ETC.”
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14. Credit for comp paid/3rd Party
Recovery
EE & ER have an independent cause of action against a negligent 3rd party (LC 3852)
Any amount EE recovers from the 3rd party is subject to
ER's right of reimbursement for sums already paid or credit
against future comp to be paid to EE (or EE's dependents)
(LC 3852, C.J.L. Construction, Inc. v Universal Plumbing, (1993) 58 CCC 543)
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14. Credit for comp paid/3rd Party
Recovery
Feel free to call:
Amir Adil Kermit Sprang
Tahmeena Ahmed Scott Star
Peter Fitzpatrick
Louis Larres Kerry Tepper
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15. Unreasonable Refusal to
Submit to TreatmentLC 4056 Disability caused or aggravated by refusal to submit to medical treatment
"No compensation is payable in case of thedeath or disability of an employee when hisdeath is caused, or when and so far as hisdisability is caused, continued, or aggravatedby an unreasonable refusal to submit to medicaltreatment, or to any surgical treatment, if therisk of the treatment is, in the opinion of theappeals board, based upon expert medical orsurgical advice, inconsiderable in view of theseriousness of the injury."
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15. Unreasonable Refusal to
Submit to TreatmentLC 4056 Disability caused or aggravated by refusal to submit to medical treatment
Note: injury need not be "serious” rather, the unreasonableness of the employee's refusal must be proportionate to the "seriousness of the injury"
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16. Unreasonable Refusal to
Submit to ExaminationLC 4053 Failure or refusal to submit to examination
at employer's request.
"So long as the employee, after written request of the employer, fails or refuses to submit to such examination or in any way obstructs it, his right to begin or maintain any proceeding for the collection of compensation shall
be suspended."
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17. Horseplayaka
"Skylarking”
aka "Screwing Around"!
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17. Horseplay
Definition:
a) EE's personal activities are acts of convenience
b) that have an inherent potential for injury, and
c) injury occurs (though was not intended)
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17. Horseplay
Examples:
a. Recreational activities that utilize ER's materials/property
(e.g., shooting rubber bands, spitting paper wads, flying paper airplanes, handstands on ladders, sniffing glue)
b. Activities performed on a dare
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100
17. HorseplayNO DOUBLE DOG DARE EXCEPTION
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101
17. HorseplayExamples:
c. Inherently dangerous activities (e.g., diving off a roof; smoking in restricted areas)*
*Note: can also give rise to S&W (but only gives 50% reduction)
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17. HorseplayExamples:
d. activities intended to amuse oneselfex. spraying chemicals on arm to see what will happen
ex. arm wrestling
ex. play boxing
ex. sick jokes (greasing toilet sets, setting fires in trash cans, setting off fire alarms)
e. activities that do not ordinarily occur in the workplaceex. demonstrations of tattooing techniques
ex. practice cooking of flambe foods for a evening cooking class
ex. eating contests
ex. drinking contests
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103
18. “Rashly” Undertaken Activity� Aggravation of earlier industrial injury by "rashly”
undertaken activity causing additional disability.
"rashly" = very negligent????
Beatty 43 CCC 444
case law = very limited
case law = very conflicting
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18. “Rashly” Undertaken ActivityLedyard 57 CCC 60
Facts: aoe/coe back
-visiting AME (5th floor)
-arrives early; told "go look around"
-goes on roof, thru door w/sign:
"DOOR LOCKS FROM OUTSIDE”
-lets door close
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105
Guess what happens!!
"After looking around on the roof for a means of escapeand being unable to attract the attention of pedestrians below, [IW] mounted the four-and-one-half foot parapet and dropped 16 feet to a balcony below, suffering severe
injuries to his legs."
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106
Facts: IW argues "compensable
consequence"
HOLDING: Oh NO YOU DON’T!!!
REASONING:
IW's acts "constituted a complete departure from his special errand of participating in a medical examination."
IW's "jump from the roof was a rash undertaking that could not have been reasonably anticipated..."
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107
ON THE OTHER HAND…
"...it is questionable whether conduct that is merely "rash” will bar employee's recovery for injuries
consequential to an established industrial injury..."
Sanchez 59 CCC 81
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19. Apportionment
108
Keeping this simple:
PD is Applicant’s burden Apportionment is Defense’s burdenApportionment is defendant’s burden
Escobedo vs. Marshalls (2005) 70 Cal. Comp. Cases 604
In the final analysis, to save PD indemnity Defense must prove PD cause by LC 4663 “other factors”
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109
20. By Carrier: A. Lack of Ins Coverage of ER (DUH!)
B. Absence of Liability under General-Special Rule
C. Lack of coverage under Exclusionary Endorsement or Policy Provisions (DUH!)
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110
A. Lack of Coverage � Subject to Mandatory Arbitration, per LC § 5275(a)
� Caveat: Denying both Coverage AND Employment may mean both venues in both WCAB and Arbitration. Cumis fees may be awarded by the WCABfor ER’s atty fees if carrier found liable.
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111
B. General & Special Employer
'cause you just can't have enuf bosses
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112
"general": lends EE to another ER
-allows borrowing ER to directly supervise EE
"special": ER who borrows from "general"
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113
general ER: “generally” liable for w.c. injuries (get it?)
special ER: generally not liable for w.c. injuries
(unless EE was on special's payroll
on DOI)
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"The primary consideration [in determining whether a special employment exists]...is whether the special has [the] right to control and direct the activities of the alleged employee or the manner and method in which the work is performed."
Kowalski v. Shell Oil, 23 Cal.3d 168, at p. 175
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Less likely a special employment
relationship
IF
Worker...a. is skilled;b. has substantial control over operational details;c. isn't engaged in borrower's usual business;d. works only for a brief period;e. uses own tools or those of lending ER;f. isn't paid by borrowing ER;g. can't be discharged by borrowing ER.
Marsh v. Tilley Steel, 26 Cal.3d 486, 492
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EXAMPLETEMPORARY EMPLOYMENT SERVICE EMPLOYERS
Volt.com
CMStaffing
Labor Ready
Kelly Services
Accountemps
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117
general ER: generally liable for w.c. injuries
special ER: generally not liable for w.c. injuries
BUT what happens if general's carrier...
*becomes insolvent, or
*cancelled policy?
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CIGA*...
...to the rescue!?!?
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119119
120
Special Employer is jointly &
severally liable for EE's injuries...
UNLESS...unless special EEs were expressly excluded from
coverage under the special employer's insurance policy!
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121
NOTE: Even if the special and general have a contract agreeing that the general will obtain w.c. ins,
any such agreements do not eliminate their joint & several liability.
Northrup Grumman Corp. v WCAB; CIGA, 75 CCC 537 (2010); Miceli v. Jacuzzi, Inc. (2006), 71 CCC 599
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C. Site Specific� Burden on Insurer to establish Exclusion
� WCIRB info correct?? Who knows
� Pull building permit from supervising gov’t entity
� Show actual policy from underwriting or other carrier’s policy
� Get Declarations/Exclusions pages
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C. Site Specific (con’t)� If possible, show “other coverage”
designated for the site
War Story: I have even used a broker’s email to client’s underwriting dept. to get joinder against another carrier!
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21. Prior C&RJohnson v WCAB
S.Ct, 1970
Fact: IW into C&R on mandatory form-form releases all claims of IW and his dependents-C&R approved by WCJ-IW dies -WCJ dismissed widow's claim for death benes
Holding: WCAB erred in dismissing death benefit claim without first awaitingdefendant's Answer
Reasoning: the assertion of a release is an affirmative defense "If...insurer chooses not to raise the defense of release,that release might be deemed waived and petitionerthus collects death benefits."
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22. Post TermGood news!
Post 7/16/93 DOIs...
LC 3600(a)(10) = "post-term" defense
Objective: protect against retaliatory/fraudulent claims from fired ees
Don't forget: LC 3600(a)(10) doesn't apply to psych
[see LC 3208.3(e)] (more about that later)
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RULE: = not compensable if "filed after notice of termination or layoff, including voluntary layoff, and...the claim is for an injury occurring prior to the time of notice of termination or layoff.”
NEEDED: prove that…
a. claim was filed after notice term layoff; and
b. claim is for injury occurring before notice
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Burden shifts to EE...Prove one (any one):
1. ER was aware of claimed injury before EE was notified of term.
2. Evidence of claimed injury is in med records that pre-exist notice of term.
3. EE sustained a specific injury a. after notice of term
b. but before effective date of term
4. EE sustained CT w/doi after date of notice of term
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Want a laugh...
LC 3600(a)(10): "issuance of frequent notices of termination or layoff to an employee shall be considered a bad-faith personnel action" thereby undercutting potential post-term defense
frequent notices nullifies LC 3600 post-termination defense
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TERMINATION OR LAYOFF
LC 3600(a)(10) applies only to claims filed after notice of "termination or layoff, including voluntary layoff."
aka ER-initiated separations
not voluntarily resignations
What about resignations = constructive firings?
Not sure...!
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What is a “Termination”?
Termination must be final or “indefinite” employment separation – doesn’t count if EE is seasonal.
Principle: The clearer the termination, the stronger the affirmative defense
www.bradfordbarthel.com 130
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What is a “Termination”?Job Abandonment?
Tricky – esp if the EE later claims they left to go to doctor.
A way to mitigate this problem:
1. have a clear directive on absences in EE handbook, and
2. send letter to EE who isn’t showing up. (Certified mail)
www.bradfordbarthel.com 131
HYPOFacts:
� EE gives two weeks' notice
� ER "lets [EE] go" before two weeks ends
Holding: not barred by LC 3600(a)(10)
Reason: "no exception in the case law that converts a voluntary resignation into a termination whenever an employee extends the usual courtesy of offering her employer some notice before departing, and the employer declines."
"Section 3600(a)(10) was designed to protect employers and insurers from retaliatory workers' compensation claims made by employees upset about losing their jobs, not to preclude the claims of individuals who willingly quit their positions."
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NOTICE OF TERM/LAYOFF� "notice of termination” means actual notice (not
constructive)
� just b/c EE knows a termination or layoff is coming, or should know, does not mean notice has been given.
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ER'S KNOWLEDGE OF INJURY
BEFORE TERMEE must prove ER had "knowledge"
Knowledge by Supervisor or Person in Authority
EE must inform “person in authority”.
LC 5402 - notice can be "obtained from any source on the part of the employer, his or her managing agent, superintendent, foreman, or other person in authority."
not a co-worker
not a union rep
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Knowledge of Accident
NOT Enough
NEED: knowledge injury
Can you guess why?
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EX. forklift "accident"claim form:
"NA" next to "Describe injury and part of body affected."
IW terminated 2 weeks later (b/c of "accident")
H: no notice of "injury"
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Timing of Notice of InjuryNotice immediately before term?
EE knows is about to be fired?
NO PROBLEM
even notice made contemporaneously w/ term. notice
=
no LC 3600 bar
Notice of injury 1 minute after notice of term...?
CLAIM IS BARRED
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EVIDENCE OF INJURY IN PRIOR
MEDICAL RECORDSmed records need NOT est AOE/COE
ONLY need extist pretermination injury
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INJURY SUBSEQUENT TO
NOTICE OF TERMINATION(BUT BEFORE TERM EFFECTIVE DATE)
post-term defense inapplicable
Lesson?
don't give advance notice 139
How to line up for
the defense
� Terminate
� Not “wait and see what happens.”
� Not “I told him not to come in Monday.”
� Not “I told him that if he went to Europe to visit his mother he wouldn’t have a job when he get back so he should know better.”
� Terminate
(Get an employment atty involved for questions about terminating can be complex.)
www.bradfordbarthel.com 140
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How to line up for the defense2. Document everything. Witness names, performance
issues, why the person was fired.
[Applicants may try to claim that the termination was in retaliation for claiming an injury (even if you don’t know about it) so get your defenses ready before you fire them.
If they did claim an injury, then the post-term defense doesn’t apply.]
www.bradfordbarthel.com 141
How to line up for the defense
3. Separation agreement – have atty draft a letter that both parties can sign that indicates “no injuries at work” (in addition to other provisions).
www.bradfordbarthel.com 142
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How to line up for the defense3. Severance Package - offer severance package in
return for the letter they review and send back within “x” number of days.
Avoids late claims
1. “forgot” an injury
2. “everything happened so fast.”
www.bradfordbarthel.com 143
Have you heard the news re CTs?
LC 3600(a)(10)(D) applies!
Why rarely win?
“knowledge”
Need great depo!
(it’s won or lost there!)
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PSYCH
The good news:
Post-term claims = barred by LC 3600
The bad news:
Psych excluded from post-term defense under LC 3600
The good news:
Post-term psychs barred by LC 3208.3(e)
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PSYCH POST-TERM DEFENSE� Defense burden: prove claim filed post-term
� EE burden: avoid LC 3208.3(e) by...
1) demonstrating "by a preponderance of the evidence that actual events of employment were predominant as to all causes combined", and
2) one of the following:
a. ER was aware of claimed injury before EE was notified of term/layoff
b. EE's med records existing before notice of term/layoff contain evidence of psych treatment
c. finding of sexual or racial harassment by any trier of fact
d. DOI is after notice term/layoff, but before eff. date of term\layoff
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147
GOOD FAITH PERSONNEL ACTIONLC 3208.3(h) provides:
“No compensation under this division shall be paid by an employer for a psychiatric injury if the injury was substantially caused by a lawful, nondiscriminatory, good faith personnel action. The burden of proof shall rest with the party asserting the issue.”
Need to establish:
1. lawful,
2. nondiscriminatory, AND
3. good faith personnel action.
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6 Month Bar to Psych � LC 3208.3(d) provides:
� “… no compensation shall be paid pursuant to this division for a psychiatric injury related to a claim against an employer unless the employee has been employed by that employer for at least six months.”
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Note: Less than 6 months of
work may be “trumped” by1. IW having cumulative > 6 months of work (not
consecutive) like:
� Working modified duties post-claim,
� Prior periods of work for insured,
� Even “unpaid” work before hired
2. Victim of violent act at work
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Note: Less than 6 months of
work may be trumped by3. “Sudden and Extraordinary” Event like injury out of
scope from IW’s normal occupations hazards.� EX. 1: Tree trimmer falling out of tree may not have a
compensable claim b/c falling out of tree is w/in foreseeable occupational hazard; however,
� EX. 2: Your WC defense atty falling out of tree likely is compensable.
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Donald Barthel
2518 River Plaza Drive
Sacramento, CA 95833
Office: (916) 569-0790
Cell: (916) 996-1263
dbarthel@bradfordbarthel.com
Amir F. Adil
2841 Junction Avenue, Suite 114
San Jose, CA 95134
Office: (408) 392-8202
aadil@bradfordbarthel.com
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