FAQ – Workers’ Compensation
- AOE-COE: Arising out of and in the course of the employment
- FUTURE MEDICAL TREATMENT
- MEDICAL TREATMENT
- REOPENING A CASE
- OCCUPATIONAL DISEASE
- PERMANENT DISABILITY (PD)
- TEMPORARY DISABILITY (TD)
- UTILIZATION REVIEW
- WORK RESTRICTIONS
- DEATH BENEFITS
- COMPENSABLE CONSEQUENCES
- PERMANENT DISABILITY RATING
The fifth edition of the AMA Guides states:
To be compensable, an injury has to arise out of and be in the course of the employment. Labor Code §3600
1. AOE-COE: Arising out of and in the course of the employment
To be compensable, an injury has to arise out of and be in the course of the employment. Labor Code §3600
“Arising out of” means the injury was proximately caused by the employment: “That is, the employment and the injury must be linked in some causal fashion….However, “[i]f we look for a causal connection between the employment and the injury, such connection need not be the sole cause; it is sufficient if it is a contributory cause.” (See Maher below).
“In the course of” refers to the time, place, and circumstances under which the injury occurs, and generally requires the employee to be doing those reasonable things which the employment expressly or impliedly requires or permits.
“AOE-COE” is liberally construed pursuant to Labor Code §3202. There are rules that limit employer liability (see Defenses). For example, the “going and coming” rule is based on the notion that the employee is not ordinarily rendering services to the employer while commuting. Buy there are many exceptions to the rule that create employer liability, such as special missiion, errand, company parking lot. In Hinojosa v. WCAB (1972) 8 Cal.3d 150, the Supreme Court noted:
“The interest of the employer lies in his desire to be immune from liability for the employee’s injury or death that occurs in the everyday transit from home to office or plant; the contrary interest of the employee lies in his desire to be protected from loss by injury or death that occurs in the non-routine transit, or results from the means of transit or the use of a car undertaken for the employer for his benefit at his direct or implied request.”
In Hinson v. WCAB (1974) 42 Cal.App.3d 246, the Court of Appeals revisited Hinojosa and its analysis of the rule and concluded:
“While the question of whether Hinson was injured in the course of his employment is one of law, the subsidiary questions of whether he was required to use his own car as a condition of his employment, and whether the use of his car in going from the shop to his tractor was such a “special” circumstance as to extend the employment relationship to the daily transit from and to his home, under the record before us, are questions of fact.”
Labor Code Liability … shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment….
LC §3600 This threshold issue is highly litigated and fact-dependent with various exceptions to the general rule.
Liberal construction “with the purpose of extending….benefits for the protection of persons injured in the course of their employment.” LC §3202
Cases Maher v. Workers’ Comp. Appeals Bd. (1983) 33 Cal.3d 729 , 190 Cal.Rptr. 904; 661 P.2d 1058 Maher
Only one benefit can be apportioned: permanent disability; medical treatment, temporary disability, and death benefits cannot be apportioned.
SB 899 (see Reforms) made major changes to apportionment of permanent disability: Labor Code §4663 was revised to provide
“Apportionment of permanent disability shall be based on causation.” The leading Escobedo en banc case defined “other factors” to include “pathology, asymptomatic prior conditions, and retroactive prophylactic work preclusions, provided there is substantial medical evidence establishing that these other factors have caused permanent disability.”
SB 899 added Labor Code §4664 to announce the policy that “The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.” If there was a prior permanent disability award, “it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial
injury.” This was intended to prevent claims of rehabilitation as a way to avoid apportionment. The Kopping decision held that defendant has the burden of proving overlap if claiming a deduction for a prior award.
Body regions were listed, so that awards over a lifetime could not exceed 100 percent, unless the case fell under Labor Code §4662. Regions E., F., and G. ((E)The upper extremities, including the shoulders. (F) The lower extremities, including the hip joints. G) The head, face, cardiovascular system, respiratory system, and all other systems or regions of the body not listed in subparagraphs (A) to (F), inclusive) appear Draconian. If a worker injured shoulders in the past, developed ulnar neuritis from a later injury, then lost a hand in the third injury, this all gets lumped together. Even worse is G., which lumps together many unspecified regions or conditions in addition to the head and face. Nonetheless, under Kopping, defendant has the dual burden of proving the exisitence of the prior award and the overlap of factors of disability between the prior award and the current award.
The fifth edition of the AMA Guides states:
“Apportionment analysis in workers’ compensation represents a distribution or allocation of causation among multiple factors that caused or significantly contributed to the injury or disease and resulting impairment. The factor could be a preexisting injury, illness, or impairment. In some instances, the physician may be asked to apportion or distribute a permanent impairment rating between the impact of the current injury and the prior impairment rating. Before determining apportionment, the physician needs to verify that all the following information is true for an individual:
- There is documentation of a prior factor.
- The current permanent impairment is greater as a result of the prior factor (ie, prior impairment, prior injury, or illness).
- There is evidence indicating the prior factor caused or contributed to the impairment, based on a reasonable probability (> 50% likelihood).
The apportionment analysis must consider the nature of the impairment and its possible relationship to each alleged factor, and it must provide an explanation of the medical basis for all conclusions and opinions.” (pp. 11-12)
The permanent disability reduced by the apportionment stands alone when calculating the dollar value. As the Supreme Court held in the Brodie decision, “The tables in section 4658 are for compensating the current injury only.”
Permanent disability ratings also require that a workers’ compensation judge “determine whether the apportionment is inconsistent with the law” (8 CCR 10163).
See, too: Attacking Causation, Causation, Evidence, Permanent Disability, PD Rating
(b) Any physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury shall in that report address the issue of causation of the permanent disability.
(c) In order for a physician’s report to be considered complete on the issue of permanent disability, the report must include an apportionment determination. A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors
both before and subsequent to the industrial injury, including prior industrial injuries…. LC §4663
A previous award of permanent disability is conclusively presumed to exist at the time of a later injury, etc. (see above).
Regulations/Rules Various regs mention apportionment: see 8 CCR 10162, 8 CCR §10163 (Apportionment Referral)
Cases Granado v. WCAB: cannot apportion other than PD
Escobedo: Leading case on apportionment.
Kopping v. WCAB: “The burden of proving overlap is part of the employer’s overall burden of proving apportionment, which was not altered by section 4664(b), except to create the conclusive presumption that flows from proving the existence of a prior permanent disability award.”
Brodie v. WCAB addressed this issue: “When a worker suffers an industrial injury that results in permanent disability, how should the compensation owed based on the current level of permanent disability be discounted for either previous industrial injury or nonindustrial disabilities?” The Supreme Court concluded that “The tables in section 4658 are for compensating the current injury only.”
3. FUTURE MEDICAL TREATMENT
Defined by 8 CCR §9785, “Future medical treatment” is treatment which is anticipated at some time in the future and is reasonably required to cure or relieve the employee from the effects of the injury.
SB 863 has restricted Agreed and Qualified Medical Evaluators’ opinions on treatment to future medical care, rather than continuing medical care (see revised Labor Code §4061)
Award of future medical treatment: Future medical treatment is generally awarded in cases where there is a medical opinion that it may be needed. Board Rule §10606. (Physicians’ Reports as Evidence) requires a report to “include where applicable” various items: “(j) treatment indicated.”
An award of future medical treatment, or an award terminating medical treatment, must be supported by substantial evidence.
“Open medical” is often referred to, erroneously, as “lifetime medical.” In fact, the benefit is limited and, as the law changes, becomes more so. Recent reforms have limited choice of treating physician (see Medical Provider Network), types of treatments (see Medical Treatment), objections to utilization review (see Independent Medical Review), etc. Any treatment must be necessary to cure or relieve from the effects of the industrial injury or its compensable consequences.
The defendant can petition to terminate the medical award under Labor Code §4607, but risks having to pay the injured worker’s attorney’s fees if the petition is unsuccessful. Given the potential cost of medical-legal evaluations and attorney fees for the defense and potentially for the applicant, the process is little used. The petition is not required if only one type of treatment is terminated rather than all treatment.
Buying out future medical treatment: While workers often wish to have a lump sum to spend as they like, and want to settle by way of Compromise and Release, there are inherent risks.
Practice Tips If settling future medical treatment, always get a signed Informed Consent along these lines : “I acknowledge that I have closed out my rights to any further benefits, including compensation and medical treatment (including surgery) and, upon approval of this settlement, my case shall be closed in its entirety for all purposes. My case will be closed even if the doctors have indicated a probability of my need for further medical treatment or surgery. My attorney has advised me that she cannot estimate the actual cost of future medical treatment and that she cannot warrant coverage under any medical plan. She is therefore not recommending that I close out future medical treatment. I have elected to do this anyway after full consideration of this issue, with knowledge of the impossibility of accurately predicting future medical costs, because I desire to control my own medical treatment.”
How Your Structured Settlement Broker Can Help Determine the Value of Future Medical Costs by Steven F. Chapman and Gregg Chapman, Esq. Calculating FMT
Under the California Constitution, there must be “full provision for such medical, surgical, hospital and other remedial treatment as is requisite to cure and relieve from the effects of such injury.” Decades of litigation and legislation have defined and limited this clause. Note that “cure and relieve” in the Constitution became “cure or relieve” in Labor Code §4600. Thus, palliative care is allowed.
Also allowed is treatment required by industrial aggravation of a non-industrial condition or when a non-industrial condition must be treated before treatment to “cure or relieve” the industrial condition can be undertaken (e.g., weight loss treatment needed before a knee replacement). See Braewood Convalescent Hosp. v. WCAB.
Expenses incidental to receiving treatment (e.g., travel) are covered. See Hutchinson v. WCAB.
Medical treatment payable by the employer for a work injury is controlled by Treatment Guidelines, and statutes limiting certain types of treatment (chiropractic, physical and occupational therapy: see Labor Code §4604.5: an employee is entitled to no more than 24 chiropractic, 24 occupational therapy and 24 physical therapy visits per industrial injury. If there is surgery, the statutory limitations do not apply and the treatment guidelines in 8 CCR 9792.24.3 are used instead). Treatment is also controlled by having the employer select the treater in most cases: see below.
Other forms of treatment are allowed, with limitations: see Labor Code §§3209.7, 3209.8, 3209.
In the great majority of cases, the choice of physician is controlled by Medical Provider Networks. See, too, Primary Treating Physician and Change of Primary Treating Physician. In a serious case, the employee is entitled to a second opinion.
Fees for medical treatment are controlled by the Official Medical Fee Schedule (OMFS). See Labor Code §5307.1. SB 863 made major changes to the OMFS. It also made major changes to disputes over payment for medical treatment: see Independent Bill Review
Requests for treatment are controlled by regulations. Disputes over treatment are controlled by utilization review and independent medical review. Note that SB 863 revised Labor Code §4062(a) to delete the special provisions for spinal surgery recommendations.
While an injured worker under Labor Code §4605 can self-procure treatment outside the medical provider network, a WCAB panel held that the worker is not personally liable to the lien claimant unless the worker intended to self-procure. In other words, if the worker’s attorney sent the client to treat “on a lien” outside the MPN, and the worker did not intend to be personally liable, the doctor is out of luck.
Medical treatment cannot be apportioned (Granado v. WCAB)
See Treatment Guidelines, Medical Treatment Disputes, Nurse Case Manager, Home Health Care
Labor Code Labor Code §4600: treatment “reasonably required to cure or relieve the injured worker from the effects of his or her injury shall be provided by the employer”
Labor Code §3209.7
Regulations/Rules A multitude of DWC regulations govern medical treatment: see Links
Application of the Official Medical Fee Schedule (Treatment)
REOPENING A CASE
Right to Reopen for New and Further Disability: Labor Code §5410 provides: “Nothing in this chapter shall bar the right of any injured worker to institute proceedings for the collection of compensation, including vocational rehabilitation services, within five years after the date of the injury upon the ground that the original injury has caused new and further disability….The jurisdiction of the appeals board in these cases shall be a continuing jurisdiction within this period.”
Right to Reopen for Good Cause: Labor Code §5803 provides: “The appeals board has continuing jurisdiction over all its
orders, decisions, and awards made and entered under the provisions of this division, and the decisions and orders of the rehabilitation unit established under Section 139.5. At any time, upon notice and after an opportunity to be heard is given to the parties in interest, the appeals board may rescind, alter, or amend any order, decision, or award, good cause appearing therefor. This power includes the right to review, grant or regrant, diminish, increase, or terminate, within the limits prescribed by this division, any compensation awarded, upon the grounds that the disability of the person in whose favor the award was made has either recurred, increased, diminished, or terminated.
The Court of Appeal in Royal Indem. Co. v. IAC (1966) 239 Cal. App. 2d 917 analyzed Labor Code §§5404, 5405, 5410, and 5803-5805:
Sections 5404, 5405 and 5410 read together clearly contemplate (1) that an applicant must institute proceedings before the commission within one year after the date of the injury unless there has been voluntary payment of benefits, (2) that such voluntary payments will toll the statute of limitations during the continuation thereof but the period commences to run again upon the stoppage of such payments, (3) provided, however, that if there occurs a “new and further disability” arising from the original injury within five years from the date thereof, the employee may institute proceedings therefor and the commission has jurisdiction to hear, determine and make awards based upon, and limited to, such “new and further disability.”
The Court of Appeal in Beaida v. WCAB (1968) 263 Cal.App.2d 204 discussed the availabilty of relief for “good cause” as an alternative theory: “5803 is available as an alternate source of supplementary relief. Liberally construed, the letter did not request reconsideration of the original award; rather, its theme was that the award fell short of the eventual disability, hence was inadequate and should be augmented. Thus it expressed “good cause” for an increased award for increased disability under section 5803.”
The practitioner when reopening may need to argue facts that bring the case under both section 5410 and 5803, citing facts that support either or both. It is essential to allege that the original injury has caused new and further disability (see Labor Code §5410). Alternatively, argue newly discovered evidence or that the disability did not manifest itself until after the award issued. In an unpublished but well reasoned opinion, the Court of Appeal in CHP v. WCAB (Griffin) (2010) (3d Appellate District, C062712) 2010 Cal. App. Unpub. LEXIS 9201 held: “By its express terms, section 5410 requires a causal connection between the alleged new and further disability and the original injury. However, a petition to reopen for good cause, other than new and further disability, under section 5803 does not require a causal connection to the original injury…the WCAB relied upon section 5803, to find under the facts in this case, where newly discovered evidence reveals a period of cumulative trauma during which industrially caused injuries developed, but the injuries did not manifest until after the issuance of the award, the original award is inequitable. Where the original award is inequitable because of facts unknown and unknowable at the time of the original award, the WCAB can assert its continuing jurisdiction under section 5803.”
Regulations/Rules §10458. Petition for New and Further Disability: The jurisdiction of the WCAB under Labor Code Section 5410 shall be invoked by a petition setting forth specifically and in detail the facts relied upon to establish new and further disability.
If no prior Application for Adjudication has been filed, jurisdiction shall be invoked by the filing of an original Application for Adjudication. 8 CCR §10458
Cases Court of Appeal in Royal Indem. Co. v. IAC (1966) 239 Cal. App. 2d 917 analyzed Labor Code §§5404, 5405, 5410, and 5803-5805: see above
There must be a causal connection between the orginal injury and the new disability: Liberty Mutual Ins. Co. v. IAC (1964) 231 Cal.App.2d 501
Beaida v. WCAB (1968) 263 Cal.App.2d 204: “5803 is available as an alternate source of supplementary relief. Liberally construed, the letter did not request reconsideration of the original award; rather, its theme was that the award fell short of the eventual disability, hence was inadequate and should be augmented. Thus it expressed “good cause” for an increased award for increased disability under section 5803.”
Informality of pleading to reopen: “the common law long ago discarded the primitive rules of rigid pleading; to impart that formalism into the proceedings of workmen’s compensation would constitute nothing less than an ironic anachronism.”
Practice Tips When settling a case by Stipulations with Request for Award, advise client in the Informed Consent: “I understand that a “Petition to Reopen” my case (to obtain further medical treatment or additional disability compensation when there is a substantial worsening of my condition) MUST BE FILED WITHIN FIVE (5) YEARS OF THE DATE OF THE ORIGINAL INJURY, which date is set forth in the settlement agreement. I acknowledge that it is my obligation to keep my attorney informed about any changes in my condition that might warrant the filing of a petition to reopen, and to advise my attorney of my whereabouts during the 5-year period.”
“Occupational disease” is “any chronic ailment that occurs as a result of work or occupational activity.” Wikipedia
Labor Code §6409 requires that a physician who attends any injured worker “file a complete report of every occupational injury or occupational illness to the employee with the employer, or if insured, with the employer’s insurer, on forms prescribed for that purpose by the Division of Labor Statistics and Research.” Subsection (b) defines “occupational illness” to mean “any abnormal condition or disorder caused by exposure to environmental factors associated with employment, including acute and chronic illnesses or diseases which may be caused by inhalation, absorption, ingestion, or direct contact.”
In Fruehauf Corp. v. W.C.A.B. (Stansbury) (1968) 68 Cal.2d 569, the Supreme Court held that occupational disease has the same statute of limitations as cumulative traumas: “We are convinced that it was the Legislature’s intention to classify injuries resulting from continuous cumulative traumas which are minor in themselves but eventually result in disability as occupational diseases. We perceive no supportable rationale to distinguish the legal effect of such injuries from injuries that occur as a result of continuous, latent exposure to harmful substances. That in the latter situation the insidious agency is a harmful gas or dust whereas in the former it consists of the “splintering of symptoms into small pieces, the atomization of pain into minor twinges” [citations omitted] provides no justification to apply differing rules relative to the statute of limitations.”
Labor Code §5500.5 limited liability for occupational disease or cumulative injury claims to the insured employer during the last year “immediately preceding either the date of injury, as determined pursuant to Section 5412, or the last date on which the employee was employed in an occupation exposing him or her to the hazards of the occupational disease or cumulative injury, whichever occurs first.” Employers may seek to apportion liability by petitioning for contribution.
Labor Code Labor Code §5412: “The date of injury in cases of occupational diseases or cumulative injuries is 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.”
Pain is “an unpleasant feeling often caused by intense or damaging stimuli….Most pain resolves promptly once the painful stimulus is removed and the body has healed, but sometimes pain persists despite removal of the stimulus and apparent healing of the body; and sometimes pain arises in the absence of any detectable stimulus, damage or disease.” Wikipedia
“Chronic pain” means any pain that persists beyond the anticipated time of healing: MTUS
Ironically, while “pain is the most common reason for physician consultation in the United States (Wikipedia)” and a major cost in the workers’ compensation system, California doctors cannot assign more than a 3% add-on for pain, no matter how severe (see Permanent Disability Rating). But pain may still be relevant when assessing ability to return to work or when vocational experts are assessing loss of earning capacity. The description of pain in the California system relies on technical terms defined in 8 CCR §9727.
“While the person who claims to have been injured is ordinarily the first person who should testify as to whether he is suffering pain (citations omitted) it should be borne in mind that the law does not award compensation for mere pain unless it is of such a character as to raise a presumption of incapacity to earn.” West v. IAC (1947) 79 Cal. App. 2d 711
Labor Code The Labor Code refers to “serious pain” in two statutes (§4610.6(d)) and §4616.4) in relation to independent medical review but the term is not defined in the statute or regulations for IMR.
Health & Safety Code Pain Patient’s Bill of Rights Health & Safety §124960 et seq.
Business & Professions Code “Intractable Pain Law” B&P §2241.5
Regulations/Rules Not defined for IMR but “chronic pain” is defined in the Medical Treatment Utilization Schedule—Definitions
Pain is also defined in §9727. Subjective Disability. MTUS
(b) For all conditions or injuries not addressed in the MTUS, the authorized treatment and diagnostic services in the initial management and subsequent treatment for presenting complaints shall be in accordance with other scientifically and evidence-based medical treatment guidelines that are nationally recognized by the medical community pursuant to section 9792.25(b).
(1) In providing treatment using other guidelines pursuant to subdivision (b) above and in the absence of any cure for the patient who continues to have pain that persists beyond the anticipated time of healing, the chronic pain medical treatment guidelines in section 9792.24.2 shall apply and supersede any applicable chronic pain guideline in accordance with section 9792.23(b). 8 CCR §9792.23
Publications ACPA Resource Guide to Chronic Pain Medication & Treatment: 2013 Edition ACPA Guide 2013 Indispensable free guide to pain treatment
PERMANENT DISABILITY (PD)
“While there is no statutory definition of permanent disability, it has been judicially recognized that a permanent disability is one which causes impairment of earning capacity, impairment of the normal use of a member, or a competitive handicap in the open labor market.” Luchini v. WCAB (1970) 7 Cal.App.3d 141. “Permanent disability indemnity has a dual function: to compensate both for actual incapacity to work and for physical impairment of the worker’s body, which may or may not be incapacitating.” (J. T. Thorp, Inc. v. WCAB (1984) 153 Cal. App. 3d 327, 333
“Thus, permanent disability payments are intended to compensate workers for both physical loss and the loss of some or all of their future earning capacity.” Brodie v. WCAB
In Baker v. WCAB (2011) 52 Cal. 4th 434, the Supreme Court noted that “Permanent disability and life pension benefits are intended to compensate the injured worker for the long-term, residual effects of an industrial injury once the worker has attained maximum medical recovery.”
Inability to compete in open labor market or diminished future earning capacity (DFEC):
Labor Code §§4660 and 4660.1: For many decades Labor Code §4660(a) provided:
“(a) In determining the percentages of permanent disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his age at the time of such injury, consideration being given to the diminished ability of such injured employee to compete in an open labor market.”
SB 899 changed subsection (a) to:
“(a) In determining the percentages of permanent disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his or her age at the time of the injury, consideration being given to an employee’s diminished future earning capacity.”
Presumably the change from “diminished ability of such injured employee to compete in an open labor market” to “diminished future earning capacity” was a sea change. But in Ogilvie v. WCAB (2011) 197 Cal. App. 4th 1262, the Court of Appeal opined:
“Indeed, the terms “diminished future earning capacity” and “ability to compete in an open labor market” suggest to us no meaningful difference, and nothing in Senate Bill No. 899 suggests that the Legislature intended to alter the purpose of an award of permanent disability through this change of phrase.”
SB 863 addressed the issue by adding Labor Code §4660.1 for injuries on or after 1/1/13, which eliminated from consideration diminished future earning capacity or ability to compete in the labor market. Subsection (g) provides “Nothing in this section shall preclude a finding of permanent total disability in accordance with Section 4662,” so the concept of total loss of earning capacity or ability to compete in an open labor market lives on in relation to total disability.
Is it now, for injuries on or after 1/1/2013, all under Labor Code §4662 or nothing more than an AMA Guides or Guzman rating? Or will the appellate courts find that other factors need to be considered? The schedule is still rebuttable, and there is a long tradtion of viewing permanent disability as loss of earning capacity.
Also new in Labor Code §4660.1 is limiting permanent disability for certain compensable consequences of physical injuries. A worker can get treatment for sleep dysfunction, sexual dysfunction, or psychiatric disorder; but psychiatric permanent disability caused by a physical injury is compensable only if it results from either of the following:
(A) Being a victim of a violent act or direct exposure to a significant violent act within the meaning of Section 3208.3.
(B) A catastrophic injury, including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury.
SB 863 made some other significant changes to long-standing concepts: Revised Labor Code §4650 no longer requires permanent disability advances “if the employer has offered the employee a position that pays at least 85 percent of the wages and compensation paid to the employee at the time of injury or if the employee is employed in a position that pays at least 100 percent of the wages and compensation paid to the employee at the time of injury, provided that when an award of permanent disability indemnity is made, the amount then due shall be calculated from the last date for which temporary disability indemnity was paid, or the date the employee’s disability became permanent and stationary, whichever is earlier.”
SB 863 also added subsection (i) to Labor Code §4061: “No issue relating to the existence or extent of permanent impairment and limitations resulting from the injury may be the subject of a declaration of readiness to proceed unless there has first been a medical evaluation by a treating physician and by either an agreed or qualified medical evaluator.”
In keeping with the policy that “The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment,” (Labor Code §4664(a)) permanent disability is subject to apportionment.
For how to compute, see Labor Code §4658 and PD Rating
Labor Code Labor Code §4660 for injuries before 1/1/13 (for DOI from 1/1/05 but may include some earlier DOIs)
Permanent disability advances not required “if the employer has offered the employee a position that pays at least 85 percent of the wages and compensation paid to the employee at the time of injury or if the employee is employed in a position that pays at least 100 percent of the wages and compensation paid to the employee at the time of injury….” LC §4658
Regulations/Rules “Permanent and stationary status” is the point when the employee has reached maximal medical improvement, meaning his or her condition is well stabilized, and unlikely to change substantially in the next year with or without medical treatment. 8 CCR 9785
TEMPORARY DISABILITY (TD)
“Temporary disability is incapacity to work that is reasonably expected to be cured or materially improved with proper medical treatment.” Chavira v. WCAB (1991) 235 Cal. App. 3d 463.
“Temporary disability indemnity is intended to replace lost wages, and permanent disability indemnity provides compensation for loss of earning capacity or physical impairment.” Rivera v. WCAB (2003) 112 Cal.App.4th 1124.
“An employer is under a statutorily imposed duty to pay temporary disability compensation for the period during which an injured employee, while unable to work, is undergoing medical diagnostic procedure and treatment for an industrial injury.” Braewood Convalescent Hospital v. WCAB (1983) 34 Cal.3d 159, 168.
When payable: Temporary disability is payable if a worker cannot work due to a work injury or can do modified work but none is available, and the worker is not yet “permanent and stationary.” Labor Code §4650 provides: (a) If an injury causes temporary disability, the first payment of temporary disability indemnity shall be made not later than 14 days after knowledge of the injury and disability, on which date all indemnity then due shall be paid, unless liability for the injury is earlier denied.” There is a waiting period in Labor Code §4652:
“no temporary disability indemnity is recoverable for the disability suffered during the first three days after the employee leaves work as a result of the injury unless temporary disability continues for more than 14 days or the employee is hospitalized as an inpatient for treatment required by the injury, in either of which cases temporary disability indemnity shall be payable from the date of disability. For purposes of calculating the waiting period, the day of the injury shall be included unless the employee was paid full wages for that day.”
How calculated: See Average Earnings and Labor Code §4453. There are two ways that the benefit may be increased: 1) under Labor Code §4661.5 if the worker was maximum for temporary disability, two years have passed since the date of injury, and the rates have increased under Labor Code §4453 or 2) there was a wage increase that was scheduled or reasonably anticipated at the time of injury (see Grossmont Hosp. v. WCAB under Cases below).
When TD ends: Temporary disability ends when the worker returns to work or is declared permanent and stationary. “Permanent and stationary status” is the point when the employee has reached maximal medical improvement, meaning his or her condition is well stabilized, and unlikely to change substantially in the next year with or without medical treatment. It also ends by operation of law after a certain number of payments with some exceptions (see LC §4656). There are 9 exceptions to the weeks limitations for injuries on or after April 19, 2004, allowing 240 compensable weeks within a period of five years from the date of the injury.
Once TD has ended, if the employee has permanent disability for which continuing care is needed, the employer does not need to pay temporary disability to compensate the worker for time off from work while pursuing that treatment: See Supreme Court decision Dept. of Rehab. v. WCAB (Lauher) (2003) 30 Cal.4th 1281.
Overpayment of TD: Credit for alleged overpayment of temporary disability may be allowed, depending on the facts, but it is up to the Workers’ Compensation Appeals Board. Unilateral taking of credit by the adjuster can result in penalties and/or sanctions under Labor Code §§5814 and 5813. See Credit
Labor Code Temporary disability statutes
Labor Code §4656 has changed over the years so it is important to check it for the date of injury LC §4650-4657
“Benefits payable on account of an injury shall not be affected by a subsequent statutory change in amounts of indemnity payable under this division, and shall be continued as authorized, and in the amounts provided for, by the law in effect at the time the injury giving rise to the right to such benefits occurred.”
“Notwithstanding any other provision of this division, when any temporary total disability indemnity payment is made two years or more from the date of injury, the amount of this payment shall be computed in accordance with the temporary disability indemnity average weekly earnings amount specified in Section 4453 in effect on the date each temporary total disability payment is made unless computing the payment on this basis produces a lower payment because of a reduction in the minimum average weekly earnings applicable under Section 4453.”
Note that temporary partial disability payments “shall be reduced by the sum of unemployment compensation benefits and extended duration benefits received by the employee during the period of temporary partial disability.” LC §4654
Cases In Grossmont Hosp. v. WCAB (1997) 59 Cal. App. 4th 1348 the Court of Appeal concluded “wage increases that were scheduled or reasonably anticipated at the time of injury and that would occur during the anticipated duration of the disability may be considered in determining the injured worker’s “earning capacity” and ultimately the benefits due.” Grossmont Hosp. v. WCAB
Utilization review “means utilization review or utilization management functions that prospectively, retrospectively, or concurrently review and approve, modify, delay, or deny, based in whole or in part on medical necessity to cure and relieve, treatment recommendations by physicians, as defined in Section 3209.3, prior to, retrospectively, or concurrent with the provision of medical treatment services pursuant to Section 4600.” Labor Code §4610(a).
SB 863 made some tweaks, including adding subsection (g)(6): “A utilization review decision to modify, delay, or deny a treatment recommendation shall remain effective for 12 months from the date of the decision without further action by the employer with regard to any further recommendation by the same physician for the same treatment unless the further recommendation is supported by a documented change in the facts material to the basis of the utilization review decision.”
Subsection (g)(7) was added to restrict UR to accepted claims or body parts or conditions: “review of a treatment recommendation shall not be required while the employer is disputing liability for injury or treatment of the condition for which treatment is recommended pursuant to Section 4062.”
In sum, the Utilization Review (UR) and Independent Medical Review (IMR) processes are for accepted claims. Treatment issues arising from denied claims must follow a different process (see Priority Conference and Liens).
To initiate UR, a doctor must submit a signed Request for Authorization (RFA) form. Under new 8 CCR §9792.1(a), use of the form is mandatory. Further definition is provided in §9792.6.1 (t):
“Request for authorization” means a written request for a specific course of proposed medical treatment. A request for authorization must be set forth on a “Request for Authorization for Medical Treatment (DWC Form RFA),” completed by a treating physician, as contained in California Code of Regulations, title 8, section 9785.5. “Completed,” for the purpose of this section and for purposes of investigations and penalties, means that information specific to the request has been provided by the requesting treating physician for all fields indicated on the DWC Form RFA. The form must be signed by the physician and may be mailed, faxed or emailed.
No longer can a Primary Treating Physician fill out a PR-2, mark a box at the top, and have made an effective RFA. Failure to follow the detailed instructions on the form and in the new regs can result in a delay, since the request will be deemed incomplete. The UR time period is not triggered until a complete RFA is received. Also, the instructions announce:
For requested medical treatment that is: (a) inconsistent with the Medical Treatment Utilization Schedule (MTUS) found at California Code of Regulations, title 8, section 9792.20, et seq.; or (b) for a condition or injury not addressed by the MTUS, include scientifically based evidence published in peer-reviewed, nationally recognized journals to recommend specific medical treatment or diagnostic services.
Will the Primary Treating Physicians take the time to do this, given the limited fees and rolls of red tape that increasingly complicate the workers’ compensation system? Or will treatment recommendations be more “cookie cutter” oriented, with complicated cases getting neglected?
If the RFA is approved, the requested treatment then is available; if denied, delayed or modified, for injuries on or after 1/1/13, the next step is governed by the new Independent Medical Review (IMR) process. For all other injuries, UR denials, delays, or modifications on or after 7/1/13 go to IMR.
If the RFA is rejected because the employer is denying liability altogether, the injured worker needs to seek a priority conference. If the claim was accepted but a body part or condition is being disputed, the injured worker can proceed to an expedited hearing.
If UR is invalid because it is untimely, the worker can file for an expedited hearing as well as appeal to IMR. Note that failure to undertake utilization review or untimely UR does not relieve the injured worker from the burden of proving that the requested treatment is reasonably required to cure or relieve and is either presumed correct under the MTUS or that the presumption was rebutted (Labor Code §4604.5). See Dubon case below.
State Compensation Ins. Fund v. WCAB (Sandhagen): “in light of the clear statutory language and the Legislature’s purpose in enacting the utilization review process in section 4610, we conclude the Legislature intended to require employers to conduct utilization review when considering employees’ requests for medical treatment. Employers may not use section 4062 as an alternative method for disputing employees’ treatment requests.”
In the en banc decision Jose Dubon v. World Restoration, Inc.; and State Compensation Insurance Fund (2014), the Board held that If a defendant’s UR is found invalid because untimely, the issue of medical necessity is not subject to IMR but is to be determined by the WCAB based upon substantial medical evidence, with the employee having the burden of proving the treatment is reasonably required.
Forms Request for Authorization
UR Complaint Form (Note: If you want to save this form to your computer and email it to the DWC Medical Unit, you MUST use the Word version. The PDF version cannot be saved to your computer once filled) RFA
“Work restrictions” or “preclusions” are temporary or permanent medical limitations on employment activity established by the treating physician, qualified medical examiner or agreed medical examiner. They may be prophylactic, to prevent further harm, or actual, because the worker is not currently able to do certain activities.
“[T]here may be compensable permanent disability even where there has been no loss of a member of the body or loss of its function; there is compensable permanent disability to the extent that an industrial injury causes a decrease in earning capacity or in the ability to compete in the open labor market and it is the nature of the disability and not the anatomical part of the body to which the injury was inflicted which must be considered in computing compensation.” Luchini v. WCAB (1970) 7 Cal.App.3d 141.
A prophylactic work restriction is a work restriction reasonably necessary to prevent further harm. “But that is not to say that such a prophylactic restriction is to be applied retroactively, thus creating a sort of factual or legal fiction of an otherwise nonexistent previous disability or physical impairment.” Gross v. WCAB (1975) 44 Cal.App. 3d 397.
“The “retroactive” prophylactic work restriction condemned so often by the courts is a restriction where the employee was never told by a doctor, before the industrial injury, to restrict his future work activities for medical reasons.” O’Brien 20.14.6
While the Primary Treating Physician, Qualified or Agreed Medical Evaluator are required to discuss work restrictions (see below), they are no longer formally considered in rating permanent disability since SB 899 changed Labor Code §4660 to rely on the AMA Guides to describe and measure “the nature of the physical injury or disfigurement.” Nonetheless, work restrictions are still considered when assessing permanent disability, albeit indirectly. For example, in Milpitas Unified School District v. WCAB (Guzman) (2010) 187 Cal.App.4th 808, the Agreed Medical Evaluator relied heavily on work restrictions when assessing impairment, and departed from the tables in the Guides and used a percentage of the ADLs. The Court concluded, “The Guides itself recognizes that it cannot anticipate and describe every impairment that may be experienced by injured employees. To accommodate those complex or extraordinary cases, it calls for the physician’s exercise of clinical judgment to evaluate the impairment most accurately, even if that is possible only by resorting to comparable conditions described in the Guides.” Work restrictions also are part of the LeBoeuf evaluation (see Vocational Experts) and proving total permanent disability under Labor Code §4662.
To determine whether a worker is entitled to a Supplemental Job Displacement Benefit, the doctor and employer must know and consider the restrictions.
Labor Code Labor Code §4658.6: “accommodating the employee’s work restrictions” LC §4658.6
Labor Code §4658.7: (for injuries o/a 1/1/13): “work capacities and activity restrictions” LC §4658.7
Regulations/Rules §9785. Reporting Duties of the Primary Treating Physician: “(f) A primary treating physician shall, unless good cause is shown, within 20 days report to the claims administrator when…. (4) The employee’s condition requires him or her to leave work, or requires changes in work restrictions or modifications.”
- 10606. Physicians’ Reports as Evidence: “These reports should include where applicable: “(h) opinion as to the nature, extent, and duration of disability and work limitations, if any;”
Practice Tips If an examiner imposes work restrictions but provides a zero rating under the AMA Guides, “then one must assume that the injury has either significantly altered the affected body part or system and, most likely, has had some effect on activities of daily living. If either or both are true, then a zero percent impairment would be inappropriate.” AMA Guides: Beyond the Tables:
How to Think About Work Ability and Work Restrictions: Risk, Capacity, and Tolerance by James B. Talmage, MD, and J. Mark Melhorn, MD How to Think About Work Ability and Work Restrictions
Applicants’ attorney Julius Young publishes the WorkersCompZone lawblog.
Judges and attorneys know it as a frequent scenario. An injured worker, frustrated with the delays and treatment denials in the system, simply wishes to cash out their case. As part of a buyout they usually take a negotiated amount of money in exchange for releasing the insurer from liability for future medical treatment. Perhaps the worker has other coverage that can be relied upon to fund treatment. But maybe not.
Workers who have employer sponsored group health coverage or private coverage administered by companies such as Blue Cross or Blue Shield may find that their treatment is denied under the terms of the policy if the policy excludes payment for workers’ comp related conditions.
What about workers who have no insurance or whose insurance will not cover workers’ comp? Once they settle their cases, how do they fare? Some of those workers may be eligible for Medicare, so they are expected under Medicare’s rules to “protect Medicare’s interest” by using an allocated portion of their settlement (a Medicare Set Aside) to cover medical costs before Medicare will willingly kick in.
Others will use their group or individual medical insurance anyway, despite exclusionary language, hoping that their usage of treatment resources caused by a work injury is not flagged by the insurer. Some will seek treatment at the VA or public clinics or county hospitals. Some may receive “charity care”. If there is any research on how workers who settle cases access treatment resources, I’m not aware of such studies.
Perhaps the Affordable Care Act/Obamacare will affect all of this. But for now it’s not clear how many injured workers end up having to pay for treatment “out of pocket” after cases are settled. But I’m sure there are some who do. I was thinking about those workers as I noted that the Centers for Medicare and Medicaid Services has now released a study of hospital pricing. The study documents hospital-specific charge data on the 100 most frequently billed discharges from 3,000 U.S. hospitals. The study documents that there is a huge range of billed charges from hospitals for the same procedure. Insurers may get discounts. But if you are an uninsured injured worker without insurance, you may be charged the “rack rate” just as you would be if you walked up to a hotel and booked a room without a discounted reservation. For example, a joint replacement may on average be billed at $83,538 at California Pacific Medical Center in San Francisco and $110,305 at St. Francis Memorial in San Francisco, just a couple of miles across the city. The same procedure at a local Kaiser was on average billed at less than half the cost.
Where injured workers have settled their cases and later found themselves without coverage, have they done comparison shopping?
Perhaps. I have personally represented several workers who settled their cases and used the funds to seek medical treatment in India or Thailand at a lower cost. Undoubtedly some immigrant workers from Mexico return there to get treatment. But for workers who need to treat in the USA, obtaining such data has been hard until now. For those workers who have settled their cases and are without other viable coverage, the CMS data may be helpful in choosing where to have elective treatments performed.
Here is a link to the CMS site where data can be obtained on charging practices of specific hospitals (the site has a search function to search for the hospital of your choice)
Death benefits may be due when death occurs through a single industrially-related event, or within 240 weeks of an industrial injury as a result of that injury. Benefits that have accrued may be due when a death which is non-industrial occurs during the pendency of an industrial injury case.
A claim that is filed more than one year after knowledge that a death is work-related will be time-barred. See Clark v. WCAB (1991) 230 Cal.App.3d 684. Labor Code §5406 provides: “No such proceedings may be commenced more than one year after the date of death, nor more than 240 weeks from the date of injury.” While Labor Code §5408 appears to toll the statute of limitations for minors and incompetents, the Supreme Court in Massey v. WCAB (1993) 5 Cal.4th 674 held that the tolling provision “was never intended to give minors substantive rights that are not available to any adult….If, upon death, the 240-week period has expired, no claim can arise. But if there then remains an unexpired portion of the 240-week period, that portion begins to “run against” potential claimants and is subject to section 5408’s tolling provision.”
Dependents as defined under Labor Code §3501 et seq. may claim death benefits. If there are no dependents, then the benefit goes to the state under Labor Code §4706.5. This is handled by the Death Without Dependents Unit of the Department of Industrial Relations.
The rates are found in Labor Code §§4701 et seq. Benefits are paid in installments “in the same manner and amounts as temporary total disability indemnity would have to be made to the employee, unless the appeals board otherwise orders. However, no payment shall be made at a weekly rate of less than two hundred twenty-four dollars ($224).” Labor Code §4702(b)
Causation has been highly litigated, given the large amount the employer must pay if there is a material contributing factor that is deemed industrial. The benefit cannot be apportioned even if a progressive, non-industrial condition would have caused death awhile later. See PG&E v. IAC (Drew) (1961) 56 Cal.2d 219.
The Court of Appeals in Zenith Ins. Co. v. WCAB (Thweatt) (1981) 124 Cal.App.3d 176 opined: “Apportionment would frustrate the humanitarian purpose death benefits are intended to serve, that of relieving an employee’s dependents of the financial consequences of his or her death in the course of employment. The worker’s compensation system must be administered to “accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character; ….”
The California Supreme Court in South Coast Framing Inc. v. WCAB (Jovelyn Clark) clarified the standard of causation in a workers’ comp death case: “In the workers’ compensation system, the industrial injury need only be a contributing cause to the disability.” Death cases do not have a higher standard: “we may not break from long-standing precedent to apply a higher proximate cause standard to death cases when the Legislature has not seen fit to do so.”
Labor Code Labor Code §4700: non-industrial death while workers’ compensation case is pending: accrued benefits may go to dependents
or, if none, see below.
Labor Code §4706.5: If no dependents, death benefits go to the Department of Industrial Relations
Civil cause of action under Labor Code §2803: “When death, whether instantaneously or otherwise, results from an injury to an employee caused by the want of ordinary or reasonable care of an employer or of any officer, agent, a servant of the employer, the personal representative of such employee shall have a right of action therefor against such employer….”
r Code §5001: “Compensation is the measure of the responsibility which the employer has assumed for injuries or deaths which occur to employees in his employment when subject to this division. No release of liability or compromise agreement is valid unless it is approved by the appeals board or referee.”
Regulations/Rules Notice of Employee Death Death notice regs
Evidence in death cases: “the reports of non-examining physicians may be admitted into evidence in lieu of oral testimony.” 8 CCR §10606
Death under mysterious or unexplained circumstances: “In resolving that conflict in order to determine whether there is any causal connection between the employment and the death, the board is bound, as are the courts, “by the fundamental principle that to effectuate the purposes of the compensation statute, all reasonable doubts as to whether an injury is compensable are to be resolved in favor of the employee.” Clemmens v. WCAB (1968) 261 Cal. App. 2d 1
In Burnight v. IAC(1960) 181 Cal.App.2d 816, the Court of Appeals held: “Where an employee receives an industrial injury and the resultant pain is such that he believes he cannot continue to stand it, where he becomes so depressed that he feels that there is only one way out, where any condition results which causes him to feel that death will afford him his only relief, his act of suicide is one directly resulting from his injury, unless it appears that he could have resisted the impulse to so act.”
A “compensable consequence” is not a new injury with a new date of injury, but the consequence of an industrial injury or the treatment for that injury. In the leading case of SCIF v. IAC (Wallin) (1959) 176 Cal.App.2d 10, the Court of Appeal found that a worker amputated his finger at home as a result of an industrial eye injury. “Thus the first injury need not be the exclusive cause of the second but only a contributing factor to it; in this view the presence of contributory negligence in itself would not break the causative connection unless the intervening negligence were the sole and exclusive cause of the injury. So long as the original injury operates even in part as a contributing factor it establishes liability.”
Injuries on the way to, or returning from, medical appointments related to a work injury are usually “compensable consequences” unless there was a detour. Side effects and sequelae that result from an injury or the treatment for the injury are compensable.
Whether some condition, disease or impairment is a compensable consequence will generally hinge on the medical opinions and facts of the case, and how the subsequent problem is causally connected to the work injury.
In Laines v. WCAB (1975) 48 Cal. App. 3d 872, the Court of Appeals held that an employee was entitled to receive workers’ compensation benefits for injuries sustained while enroute to receive medical treatment for an industrial injury where the industrial injury, in itself, was not a factor contributing to the second injury, and where the journey did not commence at the worker’s place of employment: “The most serious problem with providing coverage in the case of the trip to the doctor’s office…is that the employer lacks the opportunity to exercise any control over the trip. The time the trip is made, the route followed, and the means of transportation employed are completely within the discretion of the employee, and the employer is thus unable to insure that the trip is reasonably safe and free of unnecessary hazards… [A] choice must be made between requiring the employer to bear the risk of the employee’s injury or requiring the employee to bear the risk of any mishap that may befall him while seeking statutorily required medical attention. We conclude that the risk should be borne by the employer. We determine, therefore, that the industrial injury of petitioner was a proximate cause of his accident injury.”
PERMANENT DISABILITY RATING
For injuries on or after 1/1/2005, and for some injuries before that date, the starting point is the AMA Guides. The Primary Treating Physician and a Qualified Medical Evaluator or Agreed Medical Evaluator prepare reports that discuss the factors of disability and assigns a WPI, or whole person impairment. SB 863 added subsection (i) to Labor Code §4061:
No issue relating to the existence or extent of permanent impairment and limitations resulting from the injury may be the subject of a declaration of readiness to proceed unless there has first been a medical evaluation by a treating physician and by either an agreed or qualified medical evaluator.
The report can be rated by the Disability Evaluation Unit (DEU), which “determines permanent disability ratings by evaluating medical descriptions of physical and mental impairment. The determinations are used by workers’ compensation administrative law judges, injured workers and insurance claims administrators to determine permanent disability benefits.” The DEU prepares three types of ratings: 1) Formal, done at the request of a workers’ compensation judge; 2) Consultative, done on litigated cases at the request of an attorney or DWC information and assistance officer; and 3) Summary, done on non-litigated cases at the request of a claims administrator or injured worker.
In the en banc decision, Blackledge v. Bank of America, the Workers’ Compensation Appeals Board delineated the respective roles of the evaluating physician, the workers’ compensation judge, and the DEU rater when determining ratings under the AMA Guides.
The permanent disability rating schedules are available here.
The 2005 Schedule For Rating Permanent Disabilities is currently in use for injuries on or after 1/1/05 and for some injuries preceding that date (see Labor Code §4660(d) for exceptions. The 1997 schedule covered injuries from 4/1/1997 until 2005, with some exceptions listed in Labor Code &4660(d). Until a new schedule issues for injuries on or after 1/1/2013, the 2005 schedule will be used but the adjustment factor will be 1.4 for all listed body parts/systems, and the FEC was eliminated (see Labor Code §4660.1).
Psychiatric ratings for injuries under the 2004 schedule use GAF, the Global Assessment of Function, to assess psychiatric permanent disability: see 2005 rating schedule (p. 1-12). For injuries on or after 1/1/13 where there is psychiatric disability resulting from a physical injury (a compensable consequence), there will be no additional psychiatric rating. (See Labor Code §4660.1).
Despite valiant efforts to restrict rating to the tables and charts of the AMA Guides, case law has extended to the four corners of the Guides and allowed the use of analogy and some other methods when the values in the tables for a particular condition are not an accurate way to arrive at WPI, or the condition is not mentioned in the Guides. See in particular Milpitas Unified School District v. WCAB (Guzman) (2010) 187 Cal.App.4th 808. This case was mentioned twice in SB 863: in Section 1, (c): “That in enacting this act, it is not the intent of the Legislature to overrule the holding in [Guzman]” and in new Labor Code §4660.1(h) the words are repeated.
See the DWC chart for permanent disability rates. Note that SB 863 eliminated the 15% bump for dates of injury beginning 1/1/13.
Labor Code Labor Code §4061: No issue relating to the existence or extent of permanent impairment and limitations resulting from the injury may be the subject of a declaration of readiness to proceed unless…
Labor Code §4660: For determining permanent disability for injuries occurring before 1/1/13.