California EAMS: Issues to Consider Before Submitting Your Settlement Docs

By Colleen S. Casey
Copyright © 2012. All rights reserved.
Listed below are several issues to consider before submitting a document for approval by a workers’ compensation judge (WCJ).
Walk Through Document Defined: A “walk-through” document is defined by 8 CCR §10280(a) as “a document that is presented to a workers' compensation administrative law judge for immediate action.” The following documents are considered appropriate for the “walk-through” process: (See 8 CCR §10280(c).)
  • Compromise and Release
  • Stipulations with Request for Award
  • Petitions for Attorney’s Fees for Representation of the Applicant at a Deposition
  • Petitions to Compel Attendance at a Medical Examination or Deposition
I. Compromise and Release & Stipulations with Request for Award
  • Medical Evidence: Is the medical evidence in order? Do the reports comply with LC §4628 and 8 CCR §10606? If the QME process was not followed, please include copies of the notices sent to the injured worker (IW) explaining the QME option. If the settlement document is a C&R—Is the amount sufficient for further medical treatment? (This is necessary to confirm, especially if surgery is indicated.) If the settlement document is a Stipulation, has the “future medical treatment” box been checked, either yes or no? Finally, please confirm that the medical reports supporting the settlement document are in the file.
  • Permanent Disability: Does the medical evidence support the permanent disability (PD) indicated? Even if there is 0% PD, that line must be completed. It’s helpful to include the PD rating string and/or the DEU rating. If PD is indicated as 1% and the injured worker is not able to return to work because of the industrial injury, that may be a signal that the PD rating may not be accurate.
  • Identify all Body Parts Injured: Confirm that all industrially injured body parts have been addressed in the medical evidence and in the settlement document. If it is a stipulated award, all body parts, even those that are determined to have no permanent disability, should be listed. Although the injured worker is not entitled to any cash allotment for an industrially injured body part with no permanent disability, he or she is still entitled to medical treatment for that body part, but only if the body part is listed in the stipulations. A list of all numerical codes for each body part can be found at:
  • Work Restrictions: In determining PD, the doctor must follow the AMA Guides and the metrics therein, mandated by the 2005 Permanent Disability Rating Schedule (PDRS). Unless required by a metric in the AMA Guides, physicians no longer utilize work restrictions to calculate PD. However, 8 CCR §10606 still requires that physicians include work restrictions in their evaluating reports, since they provide useful information for both the judge and the employer. It’s also helpful for the judge to know if the injured worker has been able to return to work, and if so, whether it’s a modified position or the injured worker’s usual and customary position.
  • Return to Work—the 15% Decrease: One of the most common errors parties encounter when submitting Stipulations with Request for Award is failing to comply with 8 CCR §10117, the regulation for handling “Return to Work” matters. For dates of injury after Jan. 1, 2005, if permanent disability payments are decreased 15% because the injured worker has returned to work per LC §4658(d)(3)(A) , then parties must establish compliance with 8 CCR §10117 in order to have their proposed Stipulated Awards approved. To prove compliance, parties may file either a completed copy of Form 10118 (Notice of Offer of Regular Work) or Form 10133.53 (Notice of Offer of Modified or Alternative Work). Both forms, along with other helpful information can be found on the DWC website by clicking the link: http://www.dir.ca.gov/dwc/forms.html
  • Proper Execution: Was the document properly signed by all pertinent parties? (For more guidance on this issue, see Marchese v. Home Depot, 2009 Cal. Wrk. Comp. P.D. LEXIS 423; 37 CWCR 282.)
II. Petition for Fees or Motion to Compel
  • Contents of Petition: State the basis for the request, as well as all specific facts related to the Petition. It’s important for the judge to have all the information necessary to evaluate the request. If it is a Petition for Attorney’s Fee, itemize the billable hours, as well as the hourly rate requested. If it is a Petition to Compel Attendance, provide the date, time, location and if applicable, the name of the evaluator.
  • Type of Order: Most Orders are generic, such as an Award or an Order Approving. However, orders such as for a “Petition for Attorney’s Fees” or a “Petition to Compel Attendance,” require a ten day “self destruct” clause per 8 CCR §10280(i). The clause must be in compliance with 8 CCR §10349 which defines a “Notice of Intent Order” as one which is null and void if a party files an objection within 10 days from service of the order. The objecting party must set forth in their objection good cause as to why the Order should be rendered null and void. It is important to calendar these types of actions to determine the date that your order will become final.
Conclusion: Failure to follow these rules may result in deficiencies that cannot be resolved on the day of the walk through. The WCJ may have no alternative but to set the matter for an adequacy hearing or conference, thus delaying the approval process. The best practice is for both the attorney and the support staff who prepare the “walk through package,” to keep these requirements in mind, and therefore keep the document approval process on track.

This blog has been approved by the California Division of Workers' Compensation.
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