Civil Code §3333.1 and Its Effect

Mr. Bernstein returned to the emergency room the following evening with more chest pains. It was found that he was having a heart attack. It was later learned that he in fact had suffered a heart attack the previous evening.

Mr. Bernstein eventually brought a civil claim against Kaiser for medical malpractice. He was told by various attorneys that his case was worth between $100,000.00 and $150,000.00. He was also told that for the doctor to be punished, the amount of settlement had to exceed $40,000.00. He eventually settled for $50,000.00. He signed the settlement agreement on December 10, 1990.

In this particular case, the applicant had settled the malpractice action prior to filing his workers’ compensation claim. As such, when the malpractice settlement agreement was drafted, there was no consideration given to the potential workers’ compensation benefits.

It should be remembered that the law preventing an employer from subrogating on a medical malpractice claim is Civil Code §3333.1. This section is an evidentiary section. It really only applies if the settlement obtained in a third party case is reduced to reflect workers compensation benefits. What Mr. Bernstein failed to do, aside from obtaining the services of a knowledgeable attorney, was to obtain a third party settlement giving a clear indication that the third-party had considered the workers’ compensation benefits that the applicant was entitled to. Mr. Bernstein would have been well-advised to have read the case of Graham v. WCAB, 84 CCC 160 before entering into his settlement. Civil Code §3333.1 overrides the employers’ right of credit even when an employee settles a medical malpractice action (instead of going to trial), if the settlement amount was reduced to reflect a credit for workers’ compensation benefits.

Applicant Not Entitled to Benefits after Completion of Plan Even Though Applicant Disputes Closure

pplicant Jean Turner sustained a work-related injury and settled by way of Compromise and Release Agreement for the amount of $52,000.00. The applicant then began participating in rehabilitation. A plan was developed which provided for 11 weeks of formal training followed by a 60 day placement period. Applicant successfully completed the program but was unable to find employment. The parties met informally and agreed to extend the job placement for an additional 60 days. However, after the additional 60 days, the applicant was still unable to obtain suitable employment.

The defendant filed for case closure. The applicant objected. She9 requested additional rehabilitation services. On April 7, 1993, a formal conference was held before the Office of Benefit Determination (OBD). On September 3, 1993, the OBD issued a Determination and Order (D&O) approving the defendants’ request to terminate rehabilitation benefits. The D&O did not order defendant to pay VRTD beyond the completion date of the agreed upon plan through the date of the formal conference.

The applicant appealed the D&O. The applicant argued that the case Veilleux v. City of San Luis Obispo 50 CCC 698 required a continuation of benefits during a dispute determination. The matter went before Workers’ Compensation Judge George D. Thompson. Judge Thompson found that the applicant had been paid all the VRTD benefits due. No additional benefits were owed. The applicant filed a Petition for Reconsideration. However, the Board followed the WCJ’s opinion. The WCJ cited the case Lafferty v. Aetna Casualty & Surety Company 53 CCC 373 in support of his opinion. The Lafferty case provides that there is no provision in the Labor Code for interim benefits after the completion of one rehabilitation plan and the request for or commencement of a second plan.

A Petition for Writ of Review was filed. This was denied on April 17, 1996.

Jean C. Turner v. WCAB, 61 CCC 530.

A Unilateral Mistake of Fact is Not Grounds for a Withdrawal from Stipulations

pplicant Alma Diaz sustained an admitted work-related injury on June 27, 1988. She was provided with various periods of TTD. The employer was insured by SCIF.

The parties ultimately agreed to an AME. The AME stated that the applicant was a Qualified Injured worker.

The applicant requested rehabilitation benefits. The defendant began paying VRTD payments.

The case was eventually set for hearing on December 19, 1994. Although the case was continued on that date, the parties entered into Stipulations with regards to VRTD payments claimed by the applicant. These Stipulations were approved by the WCJ.

Subsequent to entering into the Stipulation, the defense attorney had a conversation with the rehabilitation counselor assigned to the case. The defense attorney had agreed to the Stipulation on the assumption that the applicant had not been offered a work-hardening program. The defense attorney found out from the counselor that the applicant had been offered such a work-hardening program.

The defense attorney, upon finding out from the counselor that the applicant had been offered a work-hardening program, filed a Petition for Reconsideration requesting that the Stipulations be annulled. The attorney argued that he had relied upon the applicant’s attorney’s representation that the applicant needed to be offered a work-hardening program. The WCJ rejected the defense’s argument. The WCJ concluded that, “[t]here was no misrepresentation of fact which caused detrimental reliance, defense attorney simply bought the argument advanced by applicant’s attorney.” A Petition for Reconsideration was denied. SCIF then filed a Petition for Writ of Review. They argued that the Board erred as a matter of law in refusing to void the stipulated Award. The Petition was denied.

State Compensation Insurance Fund v. WCAB, 60 CCC 541

This seems to be a case where the defense attorney had not completed his homework before entering into Stipulations. Clearly a unilateral mistake of fact is not grounds for a withdrawal from Stipulations. The attorneys should have made certain of this before binding his client to the Stipulations.

AOE/COE Personal Comfort Doctrine

n October 5, 1992, Ofik Betpera, and a coworker, Azar Elmi, were hit by a truck during an uncompensated lunch break while walking on a public sidewalk in front of their employer’s place of business. The driver of the truck was apparently asleep at the time his vehicle struck the two women. As a result of this accident, Ms. Elmi was killed and Ms. Betpera, the applicant, sustained severe injuries. The case was brought before WCJ Francis Burke who was to decide whether or not the injuries and death arose out of and occurred in the course of employment.

The WCJ found that the injuries did occur during the course of employment. The WCJ relied on the case of Price v. WCAB, 49 CCC 772. In that case, an injury was deemed compensable when the employee was injured putting oil in his car even though he was waiting outside of the workplace premises. The reason was he was waiting for his workplace to open, and there was no place on the premises where employees could wait when they arrived early.

A Petition for Reconsideration was filed. The WCAB granted the petition and reversed the WCJ’s determination. The WCAB emphasized that, in this case, the applicant and decedent were not compensated during their lunch break. Furthermore, they were not on defendants’ premises at the time of the accident. The injury occurred on a public sidewalk. Given the circumstances, their injuries and death were not compensable.

The WCAB concluded that, before an injury sustained during a lunch period can be considered compensable, the employee must either be paid for such period, or the injury has to have occurred on the employer’s premises. Neither criteria was met here. Accordingly, the WCAB found that the injured employees could not recover workers’ compensation benefits as a result of the accident. A Petition for a Writ of Review was filed. This was denied on May 15, 1996.

61 CCC 487 Ofik Betpera v. WCAB

Watch Out for Possible Penalties and Under Two Year Step-Up Rule Labor Code §4661.5.

veryone should be very cautious when paying TD more than two years after the date of injury. Labor Code §4661.5 requires that TD paid two years after the date of the injury be recalculated and paid at the rate applicable on the date when paid.

For example, if you have an injury which occurred before July 1, 1994, you may be needing to adjust the TTD rate effective July 1, 1996. On this date, the maximum TTD rate was raised to $490.00. This is based on earnings of $735.00 per week.