The term of California Workers' Compensation Appeals Board commissioner Merle Rabine is ending. Earlier this week, I attended a goodbye event honoring Rabine. Held at the San Francisco building which houses the California Supreme Court, the event was pretty much a who's who of California workers' compensation law.

Present were heavy hitters from various groups, including the applicant attorneys (representing injured workers), the defense attorneys, the staff of the Department of Industrial Relations, the workers' compensation judges, the remaining WCAB commissioners, and other figures in the comp industry.

Rabine was appointed to a six-year term in 2000 by then-Governor Gray Davis. Rabine served as chairperson of the WCAB until Gov. Schwarzenegger appointed current chairperson Joseph Miller as the chairperson. Rabine's term was marked by the most significant changes in the system since the 1913 passing of the Boynton Act, which set up much of the system. Separate reforms passed in 2003 and 2004 have been the subject of a huge volume of litigation. Many issues from the 2003 and 2004 reforms addressed by the WCAB during Rabine's term are now headed for the California Courts of Appeal and, in at least one case, the California Supreme Court.

In the eyes of many system observers, Rabine's term was something of a surprise. As a former President of the California Applicants' Attorneys Association and as a partner and protege of legendary Santa Ana applicant attorney Eugene Leviton, many expected Rabine to be reflexively "applicant oriented". During his tenure, there were grumblings from a number of his former colleagues that his decisions did not sufficiently "carry the torch" for injured workers and that decisions on his watch were not especially well crafted. There was never any doubt about Rabine's competence, integrity or work ethic.

Frankly, it is probably too soon to assess Rabine's term on the WCAB. Legal historians may be able to better assess his term some years from now, depending on the outcome of many of the appellate cases under consideration.

In a short speech at his goodbye event, Rabine noted that he felt that one of his major accomplishments was the revision of the WCAB's Rules of Practice and Procedure.

Governor Schwarzenegger now has a chance to further shape the system by filling Rabine's slot with a new six-year appointee. WCAB commissioners do not necessarily always come from a workers' comp legal background . It is not clear how long it will take Schwarzenegger to settle on a new nomination. But any nominee will be subject to legislative confirmation, so the appointment could become wrapped up in Sacramento politics. Stay tuned.

Julius Young
www.boxerlaw.com

I noted an interesting article in the 1/14/07 Sunday edition of The New York Times. The title? "Company Clinics Cut Health Costs: More Big Companies Are Turning To An Old Idea."

This is an interesting phenomenon, particularly in the context of California's 2004 workers' comp reforms and the upcoming debate in the 2007 California legislature about health care reform.

The article notes that large employers across the nation, frustrated with the escalation in costs of health care, have opened more medical clinics in their own factories and offices. Over 100 of the country's largest 1,000 employers are said to now offer on-site primary care services. The article notes that in the past, on-site company clinics were primarily for occupational injury purposes. The scope of these clinics appear to be widening now so that many employees can get check-ups for a variety of different illnesses and conditions. At many companies, there is no charge for using these clinics. Many of these clinics emphasize health education and preventive treatment. You can download the article by clicking here:
http://www.nytimes.com/2007/01/14/busin ... ref=slogin

If your employer has an on-site clinic, the clinic doctors may be the first doctors you will see for a work-related injury or occupational disease. If the clinic doctor determines that your injury or illness is work-related, the doctor is required by law to file a form known as a "First Report of Work Injury." You can get a copy of that form by clicking here:
http://www.dir.ca.gov/DLSR/dlsrform5021.pdf

We have heard from some injured workers that company clinic doctors attempt to discourage workers from claiming that a condition is work-related. You should note that what you tell the clinic doctor at the time of intake (the "history") will probably be written down and will be in your file. Those notes can be used in later workers' compensation proceedings. If you believe your condition is work-related in whole or in part, you have a right to file a California workers' comp claim. To download a claim form, you can click here:
http://www.dir.ca.gov/dwc/DWCForm1.pdf

Julius Young
www.boxerlaw.com

California injured workers are entitled to reimbursement for mileage incurred traveling to and from doctor's appointments. This includes trips to and from physical therapy, acupuncture and other types of treatment. It also includes trips to and from the pharmacy to pick up your medication.

The mileage rate is now 48.5 cents per mile.

You can download mileage forms by clicking on this link:
http://www.dir.ca.gov/dwc/I&A_mileageForm.pdf

The law does not require that you use that particular form, but since it is an official state form, we recommend that you do.

If you take the "long way" to appointments, you may not be reimbursed. Many insurance companies will audit your mileage reimbursement forms. The adjuster may use Mapquest or some other internet-based service and thus may plug in your address and the doctor's address to check on the miles you submitted. Remember, it is a felony in California to make material misrepresentations in order to receive workers' comp benefits. Be sure to make your mileage requests accurate.

If you are taking public transport, you can still submit your miles. They do not have to pay the exact cost of your public transport.

It is best if you keep accurate mileage records from day one. But what if you did not keep track of mileage but later want to submit it? One way to do this in an accurate fashion is to get a copy of the billing ledger from your doctor so you will know when you were at the doctor's office. Once you know the dates, you can do the mileage request. But if you have seen many doctors, you will need to use a set of the medical reports in your file to reconstruct where and when you had treatment.

The insurer has 60 days to pay your mileage. You may want to consider faxing it in so you will have a "fax receipt" to prove it was sent. If a particular type of treatment is being contested, the insurer may contest the travel mileage to and from that treatment. The penalty for unreasonable delay of payment of mileage is 25% of the delayed amount.

If the insurer refuses to pay mileage, the judge at the Workers' Compensation Appeals Board (WCAB) may have to hear the issue along with any other disputes. To get a hearing at the WCAB, there must be an "application filed" (to set up a WCAB case number) and a "declaration of readiness" to get a court date with the judge.

Julius Young
www.boxerlaw.com

In California workers' compensation, what does the term "application" mean? And what is an "applicant"?

An "applicant" is the workers' comp claimant. In a civil case the claimant would be called "plaintiff," but in workers' comp they are the "applicant" (i.e. applying for benefits, even if they are in fact receiving benefits).

An "application" (also known as an "app" or "application for adjudication of claim") is a state form that is filed with the California Workers' Compensation Appeals Board. Usually before an application is filed, the injured worker has already given notice of the injury to the employer and has filled out a state claim form known as a DWC-1 form.

An application form can be filed by the injured worker (or their attorney), the employer or insurer, and even by a lien claimant. The purpose of filing the application form is to have the California Workers' Compensation Appeals Board (WCAB) set up a file on the claim. Once the application is filed at a district office of the WCAB, the WCAB will assign the claim a case number known as the WCAB number. That case number will be used by all parties in future correspondence with the WCAB if there are hearings requested or if settlement documents are later submitted for approval.

You can download an application form here:
http://www.dir.ca.gov/dwc/FORMS/Applica ... onForm.pdf

If there was no application ever filed but settlement documents are submitted to the WCAB for approval, the WCAB will have to set up a file and assign a case number at that time.

There can sometimes be time limit (statute of limitations) considerations with applications where a claim has been denied and no application filed. In other posts, I will address some of these considerations. As a general rule, if a submitted claim form is denied, a claimant should file an application within a year of the denial. See an atorney for more detailed and specific advice on this if you have concerns about the particulars of your situation (see our disclaimer above).

Julius Young
www.boxerlaw.com

California has an official form (known as a DWC-1 form) that is to be used for reporting work injuries. The top half is to be filled out by the claimant and the bottom half by the employer. You can download the form by clicking the following:
http://www.dir.ca.gov/dwc/DWCForm1.pdf

This is the form you can use to file claims for "specific injuries" (an injury with a definable date; i.e. you fell off a ladder, lifted a heavy object, etc.), for "cumulative" claims (your condition developed over time as a result of repetitive activities), and occupational diseases (asthma, asbestos, etc.) as well as the "compensable consequences" of the injury (for example, problems with your other knee as a result of favoring the knee initially injured, and so forth).

By law, your employer is required to give you this form if you ask for it, but you can download it here and give or send it to your employer. Sometimes workers encounter an employer who refuses to accept the form or fails to send the claim form on to its workers' comp insurer. If you are concerned that you have a hostile or flaky employer, then you should send ithe DWC-1 claim form to your employer by return receipt mail. That way if there is a dispute as to when you filed, you can prove you sent it. Be sure to keep a copy of anything you file.

Remember, it is a felony to file a fraudulent workers' comp claim in California. Thus, to lie or make material misrepresentations in order to receive benefits constitutes workers' comp fraud in California.

Your employer is required to send the claim form to its insurer or self insurance administrator. The claims administrator has 15 days to accept or deny the claim or they can elect to put the claim on delay for up to 90 days. In other posts, I will explore many of these requirements in more depth.

Julius Young
www.boxerlaw.com