Gimme 5: What Every Lawyer Should Know about Workers' Compensation Law
by Jamie L. Berenson
(County Bar Update, March 2005, Vol. 25, No. 3)

Gimme 5: What Every Lawyer Should Know about Workers' Compensation Law

By Jamie L. Berenson of Glauber/Berenson Attorneys. Berenson is the chair of LACBA's Workers' Compensation Section. The opinions expressed are her own.

The County Bar Update wishes to thank the Workers' Compensation Section for its assistance.

1. What is Workers' Compensation?
Workers' compensation is a statutory system that addresses employer liability for employee injuries or death arising out of and in the course of employment. The need for such a system arose with the advent of the Industrial Revolution, which caused employment relationships to become more remote and employment itself more dangerous. As such, a "compensation bargain" was struck.

In this bargain, injured workers were given a Workers' Compensation Appeals Board, which acts as a judicial body. Injured workers generally may file any and all claims for injuries arising out of and in the course of their employment. This system of recovery operates without regard to the fault of any party. In consideration for this system, injured workers give up the right to proceed against an employer for negligence in a tribunal other than the WCAB, and damages are significantly limited.

2. Liberal Constriction.
A cornerstone of workers' compensation is the rule of liberal constriction as set forth in Labor Code 3202. Section 3202 states "the Labor Code, which governs all aspects of the delivery system, should be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment." This section applies to both legal interpretations of statutory language and factual analysis and determinations. As such, where there are reasonable doubts regarding the construction of a statute or questions of fact, they will ordinarily be resolved in favor of the injured worker. If at trial both parties submit inconsistent but credible evidence, then the "tie goes to the runner." However, nothing in this section was or is intended to relieve an injured worker from meeting the evidentiary burden of proof by a preponderance of the evidence in establishing facts and causation.

3. Litigation and Review.
To proceed with a claim an injured worker must file a claim form to put the employer on notice of an injury and file an Application of Adjudication to evoke the jurisdiction of the WCAB. The employer has 90 days from the date of the claim form to accept or reject liability. If liability is not accepted or rejected within this time period, the claim is presumed compensable. Both sides obtain medical evidence (in the form of reporting only) and any other discovery. If the matter cannot be resolved informally, either party can request a mandatory settlement conference and ultimately a trial. The average length of time for a case to get through the system is 1-3 years.

Once a matter is submitted, a workers' comp judge has 90 days to issue a decision. If either party is aggrieved by a finding, award, or order, a petition for reconsideration must be filed within 20 days of service of the order. The petition is reviewed by the Appeals Board. If the petitioner is still unhappy with the board's decision, it may take a writ to the appellate court and ultimately the Supreme Court.

4. Damages.
Damages are limited to only a handful of benefits:

a) Temporary Disability -- This benefit accrues where there is an actual wage loss while the injured worker is unable to perform the job and recovering from the injury. The disability payment is two-thirds of the average weekly earnings up to a statutory defined maximum.

b) Permanent Disability -- If after the conclusion of temporary disability an injured employee still has residual problems that were caused by the injury, the employee will be entitled to an award of permanent disability. This disability is expressed in a percentage that coincides with a monetary figure to be paid out in weekly payments.

c) Medical Benefits -- The right to treatment reasonably necessary to cure and relieve the effects of the injury is one of the most significant benefits available to the injured worker.

d) Vocational Rehabilitation -- This is available to those who cannot go back to performing their usual and customary position after injury and has been defined as "the fulfillment of the employer's obligation to assist the industrially injured worker to be able to return to suitable, gainful employment." However, this benefit has been abolished with the advent of Gov. Schwarzenegger's SB 899 as of January 1, 2005.

5. The New Law.
Workers' compensation reform has been on the horizon for the last 16 years. On April 16, 2004, a piece of legislation was adopted. While it may have been intended to "fix the system," it has done a lot to make things worse. The complexity of the law coupled with gaping holes has created mass chaos and confusion. Unfortunately, the scapegoat appears to be the injured workers, who, unfortunately, have gotten a much worse rap than they deserve. The greatest changes are as follows:

1) limitation in the injured workers' right to treat with a doctor of their choosing,

2) limitation by the AOECOM Guidelines in the type of treatment to which injured workers are entitled,

3) limitation of time a person can collect temporary disability to 104 weeks,

4) permanent disability now limited by the AMA Guidelines, a document not intended for such a purpose,

5) abolishment of vocational rehabilitation,

6) apportionment to prior conditions now in a state of confusion.

All of those who practice in this field hope that in the years to come the chaos and delay created by these changes resolve themselves in a way that results in what is best for the injured worker and the employer.

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