[ Often Used | LC 4903-4906 | LC 5300 WCJ Rules | Pre-Existing Conditions | Right to Treat | Removing the PTP | Insurer's Duty to Provide Care | Filing the Lien | AOE/COE Keifer | Burden of Proof | Fine Points | Jurisdiction | Discovery | Bifurcation from the Case In Chief | Right to get Paid | Evidence / Witness after MSC | Time Dead-line | Petition for Recon | Right to Change PTP | Application & DOR | Duty to Serve | Due Process | Good Faith Contact before C&R | Evidence | Sanctions | Miscellaneous Code & Regs | WCAB Spiel on how to constue the code | OPINIONS | 4050 Evals ]

OFTEN USED:

Ambiguous workers' compensation laws should be construed in favor of coverage. (See, e.g., State Farm Fire & Casualty Co. v. Workers' Comp. Appeals Bd. (1997) 16 Cal.4th 1187, 1196 [69 Cal. Rptr. 2d 602, 947 P.2d 795].)

MANDATORY READING:

CCR 10301: DEFINITIONS TO KNOW

Chapter 3 Application & Answers LC 5500 - 5805 [ Hearing - LC 5700 ]

Article 2 (CCR 10340 10353) Powers, Duties and Responsibilities Appeals Board Decisions and Orders

Part 2 Compensation Claims: (LC 4900 - 5378)

Part 3 Compensation proceedings: (LC 5300 - 6002)

This is a good read and everyone needs to go through this if you plan on representing your lien at the board.

TRIGGERING THE CLAIM: LC 5402

RIGHT TO MEDICAL TREATMENT:

Braewood vs. WCAB (Bolton) (1982) 47 CCC 987 DCA "Appropriate medical treatment includes the following: "Medical, surgical, chiropractic, and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches, and apparatus, including artificial members, which is reasonably required to cure or relieve from the effects of the injury shall be provided by the employer. In the case of his neglect or refusal seasonably to do so, the employer is liable for the reasonable expense incurred by or on behalf of the employee in providing treatment." (Lab. Code, § 4600.)"

Ralph's Grocery: "Section 5814 provides that when "payment of compensation has been unreasonably delayed or refused" the full amount of the award is increased by 10 percent. All parties agree "payment of compensation" under section 5814 includes the provision of medical treatment. The only satisfactory excuse to delay or refuse payment is a "genuine doubt from a medical or legal standpoint as to liability for benefits, . . ." ( Kerley v. Workmen's Comp. App. Bd. (1971) 4 Cal. 3d 223, 230 [93 Cal. Rptr. 192, 481 P.2d 200].) The employer has the burden of presenting substantial evidence for a finding of such doubt. (Ibid.) A delay is not ordinarily excused by an employer's erroneous view of the law. (See Argonaut Ins. Co. v. Industrial Acc. Com. (1962) 210 Cal. App. 2d 267, 268-269 [26 Cal. Rptr. 470].)

PRE-EXISTING CONDITIONS: If "lit-up" by an industrial accident, they are compensable. If a pre-existing condition interferrs with treatment of an industrial condition, the cost to fix the pre-existing non-industrial condition is compensable.

Petitioner admits that where a previously quiescent condition has been lighted up by an industrial injury, medical treatment for the preexisting condition is the obligation of the employer. ( Ballard v. Workmen's Comp. App. Bd. (1971) 3 Cal.3d 832 [92 Cal.Rptr. 1, 478 P.2d 937].) Petitioner also admits that where a preexisting disease must be treated in order to cure the industrial disability, the employer is liable for such medical treatment. ( Dorman v. Workers' Comp. Appeals Bd. (1978) 78 Cal.App.3d 1009 [144 Cal.Rptr. 573].)

INSURER'S DUTY TO PROVIDE CARE: [ Derrick | LC 4600 | CCR 9781 | LC 5402 ]

In the 1984 Court of Appeal opinion in Derrick v. W.C.A.B (1984) 49 Cal. Comp. Cas 621, the justices held that the WCAB erred by removing the injured workers chiropractic care based on an adverse Medical opinion for the insurer failed to follow the procedure cast in section 4603 and CCR sections 9786 and 9787. In pertinent part, the justices stated:

Labor Code section 5402 (c) states: "Within one working day after an employee files a claim form under Section 5401, the employer shall authorize the provision of all treatment, consistent with Section 5307.27 or the American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines, for the alleged injury and shall continue to provide the treatment until the date that liability for the claim is accepted or rejected. Until the date the claim is accepted or rejected, liability for medical treatment shall be limited to ten thousand dollars ($10,000)."

REMOVING A PRIMARY TREATING PHYSICIAN:

Derrick v. W.C.A.B (1984) 49 Cal. Comp. Cas 621 [download Derrick] The Derrick court stated in pertinent part: "The Legislature has provided a method whereby an employer can petition for a change of the employee-selected physician. Section 4603 provides: "If the employer desires a change of physicians or chiropractor, he [or she] may petition the administrative director who, upon a showing of good cause by the employer, may order the employer to provide a panel of five physicians, or if requested by the employee, four physicians and one chiropractor competent to treat the particular case, from which the employee must select one." Section 4603 is implemented by rules of the administrative director set forth in the California Administrative Code, title 8, sections 9786 and 9787. (For forms and discussion, see Cal. Workmen's Compensation Practice (Cont.Ed.Bar Supp. June 1981), supra, §§ 14.35-14.35C, pp. 173-179.)"

FILING THE LIEN: [ SOL | Who & What Gets Served | CCR 10770 | CCR 10250 | Recovery of the Filing Fee ]

STATUE OF LIMITATIONS FOR FILING A LIEN: No later than (1) five years from the date of injury; (2) one year from the date of your last service (treatment or evaluation); or (3) six months from the date the judges settles the case. Here's the code: [LC 4903.5 (a)] However, there is some controversy over this dogma as some [a WCJ] believe that the IC had to be aware of the lien before the C&R / F&A. [Read this.]

WHO & WHAT GETS SERVED?

LC 4903.05 (a) states in relevant part, "A filing fee of one hundred dollars ($100) shall be charged for each initial lien filed by providers, or on behalf of providers, pursuant to subdivision (b) of Section 4903." [the filing fee was abolished as of 07-01-06!]

LC 4903.1 (c) states: "Any lien claimant under Section 4903 or this section shall file its lien with the appeals board in writing upon a form approved by the appeals board. The lien shall be accompanied by a full statement or itemized voucher supporting the lien and justifying the right to reimbursement and proof of service upon the injured worker, or if deceased, upon the worker's dependents, the employer, the insurer, and the respective attorneys or other agents of record."

LC 4903.5 (c) states: "The injured worker shall not be liable for any underlying obligation if a lien claim has not been filed and served within the allowable period. Except when the lien claimant is the applicant as provided in Section 5501, a lien claimant shall not file a declaration of readiness to proceed in any case until the case-in-chief has been resolved."

RECOVERING THE FILING FEE: Thanks to my hard work, we know have a WCAB Panel Decision that allows recovery of the $100.00 filing fee if we win any amount at trial, especially in the Medical Legal arena. See Cardoso v. SCIF (2006) 34 CWCR 77.

Labor Code Section 4603.2 (b) (1) (B), in relevant part, states, "If any contested itemization is determined payable by the appeals board, the defendant shall be ordered to reimburse the provider for any filing fees paid pursuant to Section 4903.05." This now applies to Medical-legal providers as well.

BURDEN OF PROOF:

LC 3202.5: "All parties and lien claimants shall meet the evidentiary burden of proof on all issues by a preponderance of the evidence in order that all parties are considered equal before the law. "Preponderance of the evidence" means that evidence that, when weighed with that opposed to it, has more convincing force and the greater probability of truth. When weighing the evidence, the test is not the relative number of witnesses, but the relative convincing force of the evidence."

In workers' compensation matters, the burden of proof rests on the party or lien claimant "holding the affirmative of the issue." (Lab. Code, Section 5705, 3202.5.) So, it's usually the lien clamant that must prove the case - as I learned in my Cardoso case.

Kunz v. Golden Eagle states: "Where a lien claimant (rather than the injured employee) is litigating the issue of entitlement to payment for industrially-related medical treatment , the lien claimant stands in the shoes of the injured employee and the lien claimant must prove by preponderance of the evidence all of the elements necessary to the establishment of its lien. (Lab. Code, §§3202.5, 5705; Kaiser Foundation Hospitals v. Workers’ Comp. Appeals Bd. (Martin) (1985) 39 Cal.3d 57, 67 [50 Cal.Comp.Cases 411, 418]; Industrial Indemnity Co. v. Industrial Acc. Com. (Lohnes) (1935) 2 Cal.2d 397, 404-409 [20 IAC 311, 313-317]; Hand Rehabilitation Center v. Workers’ Comp. Appeals Bd. (Obernier) (1995) 34 Cal.App.4th 1204, 1210 [60 Cal.Comp.Cases 289, 291-292]; Beverly Hills Multispecialty Group v. Workers’ Comp. Appeals Bd. (Pinkney) (1994) 26 Cal.App.4th 789, 801 [59 Cal.Comp.Cases 461, 469-470].)"

AOE / COE: The burden of proof (of AOE/COE) rests on the defendant, after the lien claimant establishes a "prima facie" case via the "Keifer Rule". [ the Keifer Rule - Special Thanks to attorney Daniel Escamilla for this great information! ] Kaiser v. W.C.A.B (Keifer)(1974) Cal. Supreme Ct., 13 Cal. 3d 20; 39 C.C.C. Cas 857 [ here ]

I. Establishing the "rebuttable presumption of injury":

Unlike if the case in chief settles via Stipulation with Request for Award, if the Case in Chief settled via Compromise & Release, then the lien claimant MUST establish a "prima facie" case, which establishes a rebuttable presumption, in order to support his or her lien claim. This can be done very easily via a "three pronged attack": Submit (1) the DWC-1 to show the IW claimed an industrial injury; (2) Compromise & Release to show that "compensation" was awarded for the claimed injury; and (3) medical report(s) that connect the lien for medical services with the industrial injury.

Once the forgoing three factors are presented, the lien claimant may now enjoy the presumption established by Keifer. Now the budon shifts to the defendant to disprove AOE/COE.

MANDATORY SETTLEMENT CONFERENCE

LC 5502 (e)(3) "If the claim is not resolved at the mandatory settlement conference, the parties shall file a pretrial conference statement noting the specific issues in dispute, each party's proposed permanent disability rating, and listing the exhibits, and disclosing witnesses. Discovery shall close on the date of the mandatory settlement conference. Evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference."

SCIF v. WCAB (Welcher) (37 Cal.App.4th 675) - 08/08/95: Held that 5502(e)(3) is applicable in regards to the "5-Pager," so you had better list your witnesses and evidence! [Welcher] [it also stated: The Court of Appeal held that the section 5402 presumption applied and the employer failed to rebut the presumption because all of its evidence could reasonably have been obtained during the 90-day period. (37 Cal. App. 4th at p. 684.)

BIFURCATION FROM THE CASE IN CHEIF: Try not to allow it to happen. But, if you don't want to go (and often waste your time) all you need to do is include a letter in you lien packet of the name and number of a person available at trial time with athority to setter (per CCR 10560).

LC 4903.4 states: "When a dispute arises concerning a lien for expenses incurred by or on behalf of the injured employee as provided by Article 2 (commencing with Section 4600) of Chapter 2 of Part 2, the appeals board may resolve the dispute in a separate proceeding, which may include binding arbitration upon agreement of the employer, lien claimant, and the employee, if the employee remains a party to the dispute, according to the rules of practice and procedure."

CCR 10560 states: "The parties are expected to submit for decision all matters properly in issue at a single trial and to produce at the trial all necessary evidence, including witnesses, documents, medical reports, payroll statements and all other matters considered essential in the proof of a party's claim or defense. However, a workers' compensation judge may order that the issues in a case be bifurcated and tried separately upon a showing of good cause."

CCR 10562 (d) states: "Where a lien claimant served with notice of a conference fails to appear at the conference either in person or by attorney or representative, and fails to have a person with settlement authority available by telephone, the workers' compensation judge may

(1) dismiss the lien claim after issuing a ten (10) day notice of intention to dismiss with or without prejudice, or
(2) close discovery and forward the case to the presiding workers' compensation judge to set for trial."

RIGHT TO GET PAID:

Labor Code section 4906 (a):

"No charge, claim, or agreement for the legal services or disbursements mentioned in subdivision (a) of Section 4903, or for the expense mentioned in subdivision (b) of Section 4903, is enforceable, valid, or binding in excess of a reasonable amount. The appeals board may determine what constitutes a reasonable amount."

FINE POINTS: [ C&R | Lien Thrown Out | Evidence into Trial ]

STANDARDS WHICH WCJ AND WCAB MUST USE: [ Bracken v. WCAB ]

The law in effect at the time of injury governs all rights and liabilities. ( Hofmeister v. Workers' Comp. Appeals Bd. (1984) 156 Cal. App. 3d 848, 852-853, 203 Cal. Rptr. 100.) [From Honeywell]

WCJ, DA, and AA are not medical experts: (See the Finklang case at 34 CWCR 52, 53 (March 2006) "Claims administrators, lawyers, and WCJs are not medical experts capable of analyzing issues of diagnosis and treatment without evidence from medical experts.")

C&R

LC 4904 (c) states, "In the case of agreements for the compromise and release of a disputed claim for compensation, the applicant and defendant may propose to the appeals board, as part of the compromise and release agreement, an amount out of the settlement to be paid to any lien claimant claiming under subdivision (f), (g), or (h) of Section 4903. If the lien claimant objects to the amount proposed for payment of its lien under a compromise and release settlement or stipulation, the appeals board shall determine the extent of the lien claimant's entitlement to reimbursement on its lien and make and file findings on all facts involved in the controversy over this issue in accordance with Section 5313.

LC 4903.1 (b) states in relevant part, "When a compromise of claim or an award is submitted to the appeals board, arbitrator, or settlement conference referee for approval, the parties shall file with the appeals board, arbitrator, or settlement conference referee any liens served on the parties."

ALL THOSE PANEL DECISIONS COUNT:

"While there is as yet no appellate discussion of this issue, the Board has spoken to it in a number of panel decisions. [5] We adhere to 'the well-established principle that contemporaneous administrative construction of a statute by the agency charged with its enforcement and interpretation, while not necessarily controlling, is of great weight; and courts will not depart from such construction unless it is clearly erroneous or unauthorized.' (Industrial Indemnity Co. v. Workers' Comp. Appeals Board (1985) 165 Cal.App.3d 633, 638 [211 Cal.Rptr. 683].) From SCIF v. WCAB (Welcher)      Date: 08/08/95 37 Cal.App.4th 675

LIENS THROWN OUT? MAYBE NOT:LC 4904 (c) states in relevant part: "The appeals board may approve a compromise and release agreement or stipulation which proposes the disallowance of a lien, in whole or in part, only where there is proof of service upon the lien claimant by the defendant, not less than 15 days prior to the appeals board action, of all medical and rehabilitation documents and a copy of the proposed compromise and release agreement or stipulation."

Lien may not be disallowed solely because of non appearance. This is a violation of due process per the "Beverly Hills Multispecialty Case. ; 59 Cal. Comp. Cas 461 26 Cal. App. 4th 789; 32 Cal. Rptr. 2d 293; 1994 Cal. App. LEXIS 707 "

Not served a Petition for Reconsideration? Check out CCR 10850. The petition might be no good.

AA MAY TAKE A PORTION OF LIEN CLAIMANTS FEE: LC 4903.2

Verification and Service of all Petitions for Reconsideration are often MANDATORY: See LC 5902. However, not all the time: Wings West Airlines v. Workers' Comp. Appeals Bd. (1986) 187 Cal.App.3d 1047, 1055. Also see Lucena v. Diablo Auto Body (2000) (Lucena) 65 CCC 1425

EVIDENCE:

SUBSTANCIAL EVIDENCE:

Braewood vs. WCAB (Bolton) (1983) 48 Cal. Comp. Cas 566 Supreme Court of California: "The term "substantial evidence" means evidence "which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion . . . . It must be reasonable in nature, credible, and of solid value . . . ." ( Insurance Co. of North America v. Workers' Comp. Appeals Bd. (1981) 122 Cal.App.3d 905, 910 [176 Cal.Rptr. 365, italics in original, quotation marks omitted; Estate of Teed (1952) 112 Cal.App.2d 638, 644 [247 P.2d 54].) It has been said that "The substantial evidence test is not a vehicle for [a court] to superimpose its judgment upon that of the Board." ( Mendoza v. Workers' Comp. Appeals Bd. (1976) 54 Cal.App.3d 820, 823 [127 Cal.Rptr. 173].) The court may not simply isolate evidence which supports or disapproves the board's conclusions and ignore other relevant facts which rebut or explain the supporting evidence, but must examine the entire record. (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 317 [90 Cal.Rptr. 355, 475 P.2d 451]; LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627, 637 [83 Cal.Rptr. 208, 463 P.2d 432]; cf. Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 727 [175 Cal.Rptr. 626, 631 P.2d 60].) The board's findings on factual questions are conclusive if supported by substantial evidence. ( Martori Brothers, supra.)"

EVIDENCE ALLOWED INTO TRIAL: [5703]

LC 5502 (e)(3): If the claim is not resolved at the mandatory settlement conference, the parties shall file a pretrial conference statement noting the specific issues in dispute, each party's proposed permanent disability rating, and listing the exhibits, and disclosing witnesses. Discovery shall close on the date of the mandatory settlement conference. Evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference.

Kunz vs. Patterson Floor Coverings (2002) 67 CCC 1588 WCAB En Banc

Failure to make specific objection does not waive it;

LC 5908.5. Any decision of the appeals board granting or denying a petition for reconsideration or affirming, rescinding, altering, or amending the original findings, order, decision, or award following reconsideration shall be made by the appeals board and not by a workers' compensation judge and shall be in writing, signed by a majority of the appeals board members assigned thereto, and shall state the evidence relied upon and specify in detail the reasons for the decision. The requirements of this section shall in no way be construed so as to broaden the scope of judicial review as provided for in Article 2 (commencing with Section 5950) of this chapter. [See Postural Therapeutics vs. WCAB et al (1986) 51 CCC 162]

Postural Therapeutics vs. WCAB et al (1986) 51 CCC 162 "Home had a duty to serve PT with its first petition for reconsideration at the time it was filed (Lab. Code, § 5905; Cal. Admin. Code, tit. 8, § 10850.), and lack of service is grounds for dismissing the petition. (1 Hanna, Cal. Law of Employee Injuries and Workmen's Compensation (2d ed. 1984) § 7.02[4][a], p. 7-14.1; Swezey, Cal. Workers' Compensation Practice (Cont.Ed.Bar 1985) Reconsideration, § 10.28 p. 369.)"

Establishing Jurisdiction: The Application for Adjudication ("Application") starts the dispute process rolling. You do NOT have to file an Application is a DD or AA has already done so. [LC 5550] However, if you want to create a case, the file your Lien & Application. [Do NOT file you DOR unless the Case in Cheif has settled.]

DISCOVERY: Read Hardesty (1976) 41 CCC 111

Headnotes: "DISCOVERY—WHERE GOOD CAUSE HAS BEEN SHOWN EACH PARTY TO A WORKERS' COMPENSATION PROCEEDING MUST MAKE AVAILABLE TO THE OTHER PARTY FOR INSPECTION ALL NON-PRIVILEGED STATEMENTS OF WITNESSES WHICH ARE IN HIS POSSESSION, OR WHICH MIGHT COME INTO HIS POSSESSION BEFORE THE TIME OF TRIAL, BECAUSE THE DENIAL OF DISCOVERY OF NON-PRIVILEGED STATEMENT WOULD UNFAIRLY PREJUDICE THE OPPOSING PARTY IN PREPARING HIS CASE AND WOULD UNDULY EXPOSE HIM TO THE DANGER OF SURPRISE AT TRIAL."

"In accordance with the views herein expressed, IT IS ORDERED that each party, through his attorney, shall make available for inspection by counsel for the opposing party all statements of witnesses now in the possession or control of the party of his attorney and all statements which shall come into the possession or control of the party or his attorney subsequent to this order and applies to statements which are unsigned, as well as to statements which are signed, and it applies to statements which have been preserved by tape recording or other means of recording which have not been transcribed. This order does not require disclosure of any matter or communication which is immune from discovery on the ground of privilege within the meaning of the provisions of Division 8 of the Evidence Code. If a claim of privilege is asserted, however, counsel for the party for or on whose behalf the privilege is claimed shall so advise opposing counsel. This order does not apply to statements made by (as opposed to statements taken by) a private investigator retained by an attorney to investigate the facts and circumstances of this case."

DISCOVERY PRE-APPLICATION:

Yee-Sanchez: 68 Cal. Comp. Cas 637. This is the seminal case on allowed discovery pre-app.

" Prior to the filing of an application, the WCAB cannot conduct any hearings or issue any orders, and a party cannot invoke the WCAB's judicial process to conduct compelled discovery (e.g., noticing a deposition, subpoenaing a witness to a deposition, or subpoenaing medical records and other documents).

Nevertheless, prior to the filing of an application (but after the filing of a claim form), the parties may engage in non-compelled pre-application investigation. Thus, for example, a defendant may request that an injured employee attend an examination by a qualified medical evaluator (''QME''), request that the injured employee execute a release of medical records, request that the injured employee provide various documents, or interview the injured employee or other potential witnesses. Similarly, an injured employee may request information from a defendant, or interview potential witnesses. If, however, a party or non-party fails to comply with any such request(s), the injured employee or defendant cannot seek to compel compliance unless an application has been filed."

CCR 10560: For AOE/COE Cases, Always Push Hard for One Trial - Don't Bifurcate.

CAN YOU INTRODUCE REPORTS/WITNESSES AFTER MSC: Maybe. [ LC 5502 ]

HOWEVER, read the case of San Bernardino Comm. Hospital v. WCAB (1999) 74 Cal.App.4th 928: The justices had a very ridgid interprettation of 5502 (e).

"San Bernardino Community Hospital v. Workers' Comp. Appeals Bd., supra, 74 Cal. App. 4th 928, which held it was error for the WCJ to hold discovery open to allow an injured worker to submit a medical report and a witness's testimony when neither had been identified at the MSC. The court found the WCJ's duty to develop the record inapplicable on these facts." Kuykendall v. Workers' Comp. Appeals Bd., 79 Cal. App. 4th 396 

San Bernardio states in relevant part: "Finally, we must briefly discuss Applicant's contention, supported by the Board, that Employer was not prejudiced by the ruling because the WCR gave it additional time to prepare to meet the unexpected evidence. However, the absence of prejudice cannot be the deciding factor. An opposing party might often be unable to show specific prejudice; alternatively, the WCR could virtually always obviate any possible prejudice by granting a continuance or scheduling further hearings. Such an approach would threaten to make section 5502, subdivision (d)(3) meaningless; that statute does not provide for the admission of undisclosed evidence simply because the opponent will not be prejudiced. Furthermore, as we have noted above, the statute is not designed solely to permit effective preparation for trial. An equally important goal is that both parties shall have fully prepared their cases at the time of the MSC so that realistic evaluations can be made by both sides and negotiations may have some hope of success. This policy is completely frustrated if a party appears at the MSC without having an informed view of the case."

Failure to Verify: " Because failure to verify a petition may be cured by amendment ( United Farm Workers of America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912, 915 [210 Cal.Rptr. 453, 694 P.2d 138]; Wings West Airlines v. Workers' Comp. Appeals Bd. (1986) 187 Cal.App.3d 1047, 1055 [232 Cal.Rptr. 343]),

Time Deadline to file a Lien: (5 years or 6 months)

Labor Code section 4903.5 (a) states:

HOWEVER: There is some debate on this issue as Judge Foust notes that the insurer had to be aware of your billing prior to the C&R date. Here's her opinion as relayed via David, editor of WorkCompCentral. [here]

PETITION FOR RECONSIDERATION: LC 5900

Labor Code section 5903 Ground Rules for filing Petition for Reconsideration: You've got 20 day. Some excellent cases at WCC in this section.

RIGHT TO CHANGE PTP:

LC 4600
CCR 9785(b)

#1) Read the WCAB Procedural Manual: [here] or Download [here] in .doc format.

Labor Code §§4903-4904 Here's the basic ground rules for the Lien Claimant.

#2) The Application of Adjudication & Declaration of Readiness ("DOR"):

The Declaration of Readiness ("DOR") can NOT be filed until the injured workers case is settled; this applies whether the injured worker is represented or not.

Labor Code section 5502 states: "Except as provided in subdivisions (b) and (d), the hearing shall be held not less than 10 days, and not more than 60 days, after the date a declaration of readiness to proceed, on a form prescribed by the court administrator, is filed. If a claim form has been filed for an injury occurring on or after January 1, 1990, and before January 1, 1994, an application for adjudication shall accompany the declaration of readiness to proceed."

LC 5501 dictates the procedure for filing the "application."
LC 5501.5 Where to file the Application. (Patient's County or Patient's Attorney's County of practice.)
CCR 10414 The declaration of rediness: the all important DOR
CCR 10500 Service of the DOR

#3) DUTY TO SERVE [ Medical Reports | Service of C&R | Failure to Serve ]

MEDICAL REPORTS: This is often the key to winning a trial, for the IC often forgets to serve you with medical reports. (NOTE: make sure you request all medical reports per CCR 10608 & 10615) Then you say, if I only would have had that report, I wouldn't have continued treating....

CCR 10608 More Application and DOR Rules including duties to serve MEDICAL REPORTS.
CCR 10615 Continuing Duty to Serve MEDICAL REPORTS.

Postural Therapeutics vs. WCAB et al (1986) 51 CCC 162 "Home had a duty to serve PT with its first petition for reconsideration at the time it was filed (Lab. Code, § 5905; Cal. Admin. Code, tit. 8, § 10850.), and lack of service is grounds for dismissing the petition. (1 Hanna, Cal. Law of Employee Injuries and Workmen's Compensation (2d ed. 1984) § 7.02[4][a], p. 7-14.1; Swezey, Cal. Workers' Compensation Practice (Cont.Ed.Bar 1985) Reconsideration, § 10.28 p. 369.) However, "[a] failure to serve the opposing party with a copy of the petition for reconsideration is not necessarily a prejudicial error where such party, after reconsideration is granted, has notice and opportunity to appear at a further hearing in the matter and produce evidence in support of his contentions." (1 Hanna, supra, at pp. 7-14.1 -- 7-14.2.) "

SERVICE OF C&R AND/OR STIP

CCR 10886: Service on Lien Claimants.

"Where a lien claim is on file with the Workers' Compensation Appeals Board or where a party has been served with a lien, and a compromise and release agreement or stipulations with request for award or order is filed, a copy of the compromise and release agreement or stipulations shall be served on the lien claimant.

No lien claim shall be disallowed or reduced unless the lien claimant has been given notice and an opportunity to be heard."

#4) Old Liens that never got resolved? Make sure "the parties" made a good faith effort to contact you. (see this case for more: Ladin v. Vons Grocery (2004) 32 CWCR 193)

ALLOWED EVIDENCE BEFORE THE WCAB:

FAILURE TO SERVE: If you're not served medical reports during the course of treatment, (you must request to be served via CCR 10608 (a)), you have been prejudiced for you would have stopped treatment if you would have known. Request the reports thrown out via CCR 10622, Sandhagen, and Willette.

See: Postural Therapeutics v. WCAB(1986) 51 CCC 162; 179 Cal.App.3d 551 [here]

CCR 10622. Failure to Comply.

"Disclosure, service and filing of all medical reports in the possession and control of every party to a proceeding, except as otherwise expressly provided, is essential to and required in the expeditious determination of controversies.

The Workers' Compensation Appeals Board may decline to receive in evidence, either at or subsequent to hearing, any report offered under the provisions of Labor Code Section 5703 by a party who has failed to comply with the provisions of Rules 10600, 10608, 10615, 10616 or 10618. A medical report shall not be refused admission into evidence at a hearing, solely upon the ground of a late filing, where examination was diligently sought and said report came into possession or control of the party offering it within the preceding seven (7) days.

Where a willful suppression of a medical report is shown to exist in violation of these rules, it shall be presumed that the findings, conclusions and opinions therein contained would be adverse, if produced."

SANCTIONS:

CCR 10622. Failure to Comply.

"Disclosure, service and filing of all medical reports in the possession and control of every party to a proceeding, except as otherwise expressly provided, is essential to and required in the expeditious determination of controversies.

The Workers' Compensation Appeals Board may decline to receive in evidence, either at or subsequent to hearing, any report offered under the provisions of Labor Code Section 5703 by a party who has failed to comply with the provisions of Rules 10600, 10608, 10615, 10616 or 10618. A medical report shall not be refused admission into evidence at a hearing, solely upon the ground of a late filing, where examination was diligently sought and said report came into possession or control of the party offering it within the preceding seven (7) days.

Where a willful suppression of a medical report is shown to exist in violation of these rules, it shall be presumed that the findings, conclusions and opinions therein contained would be adverse, if produced."

More ABCs of Lien Conferences:

LC 5307 is the code allowing medical reports in to evidence:
LC 4903 is the code that tells what type of LIENS are allowed to be filed.
LC 4903.5 Time Limitations on Lien Filing. The one-five-six rule:
LC 5703 Additional Allowed Evidence: Report Disclosures
CCR 10622 Failure to Comply - 7 days to serve defense reports.
CCR 10544 Notice of Hearing - They are suppose to serve you notice
CCR 10563 Appearance Requirements
CCR 10562 Failure to Appear
CCR 10548 Continuance
CCR 10561 Sanctions
LC 5813 Sanctions
LC 5814 Penalties

More ABCs of Legal Brief Format:

CCR 10392 Don't forget to punch and double space those Trial Briefs!

4050 EVALUATION: These are no longer admissible.

Labor Code section 4062 (a) tells the tale and states in pertinent part:

"If the employee is represented by an attorney, a medical evaluation to determine the disputed medical issue shall be obtained as provided in Section 4062.2, and no other medical evaluation shall be obtained. If the employee is not represented by an attorney, the employer shall immediately provide the employee with a form prescribed by the medical director with which to request assignment of a panel of three qualified medical evaluators, the evaluation shall be obtained as provided in Section 4062.1, and no other medical evaluation shall be obtained."

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