Preface

The state of California has, over the years, enacted laws establishing programs designed to alleviate the hardships experienced by workers of this state in times of distress. These programs are structured in such a way as to render assistance expeditiously, inexpensively, and without encumbrance of any nature, with the goal of reducing to a minimum the suffering caused to workers in certain situations.

The distress toward which a certain body of these laws is directed is that which may be visited upon a worker and, in many cases, upon his or her family, when he or she becomes unable to work and needs an income and/or is in need of medical care due to an on-the-job injury. Assistance for such a worker or his or her family comes from the Workers’ Compensation Insurance Program.

This book is a concise and realistic explanation of the Workers’ Compensation Insurance Program and designed in such a way as to introduce the reader to the basic provisions of the program by use of extensive quotes from the Labor Code, Regulations and Case Law.

To more readily assist our readers, we have produced a separate book for the State Disability Insurance program, the Unemployment Insurance program, and the Paid Family Leave.

Case citations have been carefully selected and those that are given are not always intended to constitute authority for, or against, the conclusions drawn or the analysis given, but may be intended to refer the reader to an authority that discusses the general subject matter or the specific subject of analysis in more detail.

If the reader is using cases in this book to support a Petition for a Writ of Review, or Petition to the California State Supreme Court it is important to check the official status of the cases to be certain that they are “published” opinions inasmuch as an “unpublished” California Court of Appeal cases may not be cited or relied on by a Court or a party in any action or proceeding before an appellate Court, except where the opinion is relevant under the doctrines of "law of the case", "res judicata", or "collateral estoppel" or where the opinion is relevant to a criminal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in another such action.

California Rules of Court, section 8.1115(a)-(d) provides:

Rule 8.1115. Citation of opinions

(a) Unpublished opinion

Except as provided in (b), an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.

(b) Exceptions

An unpublished opinion may be cited or relied on:

(1) When the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel; or

(2) When the opinion is relevant to a criminal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in another such action.

(Subd (b) amended effective January 1, 2007.)

(c) Citation procedure

A copy of an opinion citable under (b) or of a cited opinion of any court that is available only in a computer-based source of decisional law must be furnished to the court and all parties by attaching it to the document in which it is cited or, if the citation will be made orally, by letter within a reasonable time in advance of citation.

(d) When a published opinion may be cited

A published California opinion may be cited or relied on as soon as it is certified for publication or ordered published. See also 40.14.43 of this book for further discussion.

This prohibition applies even though the cases may be available in print in LexisNexis California Workers' Compensation Cases. See California Rules of Court, above. However, although cases denied Writ of Review, as well as Board En Banc, and Panel decisions, have no "stare decisis" effect at Appellate Courts, they are, in very limited circumstances, citable authority as to the holding of the Appeals Board. This is consistent with 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 an Appeals Board construction unless it is clearly erroneous or unauthorized. (Smith v. W.C.A.B (2000) 65 Cal.Comp.Cases 277 (Published), First District; Ralph’s Grocery Co. v. W.C.A.B. (1995) 60 Cal.Comp.Cases 840 (Published); and Tenet/Centinela Hospital Center v. W.C.A.B. (Rushing) (2000) 65 Cal.Comp.Cases 477 (Published).) However, when cited to a Court, they are of limited value and the reader should advise the court as to the reason for the citation.

In Smith, supra, the Court stated, in part:

In this case the parties rely on an unpublished, hence not citable, court decision from Division Four of this court and a 30-year-old divided Board panel decision, Paul v. Glidden-Durkee, supra, 35 Cal.Comp.Cases 273. These two cases, the parties assert, come to opposite conclusions on the self-inflicted injury issue. We note that Court of Appeal opinions which are not published in the official reports, even though available in print in the California Compensation Cases (Cal.Comp.Cases), may not be cited or relied upon in the reviewing court. (Cal. Rules of Court, rule 977 Deering's].) On the other hand, Board panel decisions and denials of petitions for writ of review reported in the California Compensation Cases and in the California Workers' Compensation Reporter (Cal. orkers'Comp.Rptr.), along with occasional Board denials of petitions for reconsideration also reported periodically in the latter publication, are properly citable authority, but only to the extent that they point out the contemporaneous interpretation and -- application of the workers' compensation laws by the Board. (Ralphs Grocery Co. v. Workers' Comp. Appeals Bd (1995) 38 Cal.App.4th 820, 827, fn. 7 [45 Cal. Rptr. 2d 197, 60 Cal. Comp. Cases 840].) This is consistent with "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 Bd. (1985) 165 Cal.App.3d 633, 638 [211 Cal. Rptr. 683, 50 Cal. Comp. Cases 171] accord, Griffith v. Workers' Comp. Appeals Bd (1989) 209 Cal.App.3d 1260, 1264 & fn. 2 [257 Cal. Rptr. 813, 54 Cal. Comp. Cases 145].) Although we encourage citation of these cases, we emphasize that they are of limited precedential value and unquestionably have no stare decisis effect in an appellate court (Ralphs Grocery Co., supra, 38 Cal.App.4th at p. 827, fn. 7.)...

The above rules in no way limits the citing of any decision to a Workers' Compensation Judge or the Appeals Board.

In Cubeudo v. Leemar Enterprises, Inc.et al.2011.Cal.Wrk.Comp.P.D. Lexis 356 (Panel decision) the three Commissioners  reprimanded the Workers Compensation Administrative Law Judge for supporting his decision by relying upon an unpublished Court of Appeal case.

California Rules of Court, Rule 8.1115 provides that a published California opinion may be cited or relied upon as soon as it is certified for publication or ordered published.

Almost all Appeals Board "En Banc" decisions are cited throughout this book. Once the Board, by majority vote, declares a decision "En Banc" that decision is binding on panels of the Appeals Board and Workers' Compensation Judges as legal precedent under "stare decisis." See Title 8 of the California Code of Regulations, section 10341 and Labor code sections 133 and 5307.

In July 1997, the Appeals Board created a "hybrid" decision called a Significant Panel Decision (SPD). The Board's Chairperson, at that time, stated that the Board was designating certain cases as SPDs because they deal with significant legal issues about which there is little or no published case law. This concept was further explained in Larch v. W.C.A.B (1999) 64 Cal.Comp.Cases 1098 (Writ Denied) where the Court stated, in part:

Although each significant panel decision is signed by its three panel members, each significant panel decision must be reviewed by all Board members and all Board members must concur that the decision is significant and that it merits general dissemination to the workers' compensation community. Finally, the Board and its staff make a particular effort to ensure that its significant panel decisions are thoroughly deliberated and carefully researched....

However, SPD decisions are not binding precedent as are Board "En Banc" decisions on panels of the Appeals Board and Workers' Compensation Judges.

Citations from the California Workers’ Compensation Reporter are now included inasmuch as the Reporter is a properly citable authority, especially as an indication of contemporaneous interpretation and application of workers’ compensation law by the Appeals Board and any of it's three panel Commissioners. See Griffith v. W.C.A.B. (1989) 54 Cal.Comp.Cases 145, Second Disrtict (Published).

Persons citing the above sources should be careful to check to make certain that a particular case being cited has not been reversed or amended on higher appeal.

Further, LexisNexis now publishes what it is calls "Noteworthy Panel Decisions" which are other panel decisions it feels makes a contribution to the body of law available to attorneys, claims personnel, Judges and the Appeals Board, and others seeking to understand the Workers' Compensation laws of California. Many of these cases are cited throughout the book. Do not confuse these "Noteworthy Panel Decisions" with  cases with "Significant Panel Decisions" or the cases reported in the "California Workers' Compensation Reporter."

The reader should be aware that ever since this program was enacted in 1917 the Legislator has time and again changed the law in various ways and attention must be paid as to whether a particular change applies to all claims regardless of date of injury or only to claims filed after the particular change was made by the Legislator.

For example, effective 1/1/2013 the Legislator made massive changes in this late when they enacted Senate Bill 863.

In Section 84 of SB 863 the Legislator stated, " This act shall apply to all pending matters, regardless of date of injury, unless otherwise specified in this act, but shall not be a basis to rescind, alter, amend, or repoen any final award of workers' compensation benefits."

I have continued my initial goal, in this thirteenth edition of setting forth sufficient facts and language used in leading cases from the State Supreme Court, Court of Appeals, and Workers’ Compensation Appeals Board, so that rarely will the reader have to seek out the case itself to fully understand the reasoning of the Court or Board.

Realizing that in certain instances the reader must have the precise language of a Labor Code Section or Regulation at hand, we have added throughout this book direct quotes from these sources. Further, we have added for the convenience of the reader, the complete Labor Code sections pertaining to Workers’ Compensation, the Regulations adopted by the Division of Workers’ Compensation, and the Workers’ Compensation Appeals Board in the Appendix.

Finally, I hope I have succeeded in my goal of sorting out and bringing to our readers’ attention those endless laws, regulations and cases of which we all must be aware in the field of Workers’ Compensation.

To sort out is not enough. I hope I have placed the cases, codes and regulations in those places you will logically look to see if there is law on the issue under study.

-David W. O’Brien, Esq.