With these suggestions, beat the possibility of comp rage by getting your well deserved benefits and rights in a timely manner.
Rage is what a lot of my clients feel towards insurance companies that begrudgingly dole out needed workers’ compensation benefits, defense attorneys that snidely treat them like common criminals and private investigators who follow them around indiscriminately videotaping them at their homes or about town.
The California workers’ compensation system comes with a promise: If you are injured on the job you will be provided medical treatment, temporary disability, payment for loss of earning capacity and help getting into a different field if you can no longer do your old job. Sadly, this “Workers’ Compensation Bargain” gets broken all the time. Not everyone plays fair. Not everyone is reasonable or nice. Some folks can be vindictive and nasty. Others simply don’t take care of business and benefits are paid late or not at all.
First, a thoughtful qualification: Having practiced workers’ compensation here in the North State in both Redding and Chico for over 20 years now, I will have to say that most of the people on the insurance side here are pretty cool and reasonable work with. We all have our jobs to do and it is not always pleasant, but we are blessed with a certain level of comity that they do not have in other parts of the state. That said, sometimes you come across the random knot head that insists on being a “pimple on the ass of progress” as my father liked to say. Injured workers die due to their use of the powerful tools they have to deny or stall needed medical treatment. Take for example the decision in Romano v Kroger last year. The Workers Compensation Appeals Board (WCAB) indicated that the third party adjuster Sedgwick ignored a judge’s order and continued to delay or deny treatment. Mr. Romano died of cardiorespiratory arrest, respiratory failure and pneumonia that were directly caused by his industrial MRSA infection. The WCAB upheld $110,000.00 of penalties against Sedgwick for 11 instances of unreasonably delaying medical care. There could be an additional $100,000.00 of civil penalties assessed. However, the capper is that there was a referral off to the local DA’s office for consideration of criminal prosecution against Sedgwick and the adjuster responsible for Mr. Romano’s death. It’s is about time.
Can you sue your insurance carrier, their investigators and attorneys civilly? Insurance companies enjoy lots of immunities; generally, you can’t sue them pursuant to Labor Code Section 3850. But it is open season on their investigators and attorneys who cannot hide behind the same skirt. However, you can seek recovery of civil damages from the insurance carrier if they have stepped outside their proper role as an insurer and committed an intentional tort that injures you. How about the amorous investigator employed to become emotionally involved with the injured worker pushing her to perform activities beyond her stated physical limitations (Ooo La La!)? Unruh v. Truck Ins. Ethan 7 C3d 616 (1972). Or the insurer who maliciously had the injured worker arrested and prosecuted for workers’ compensation fraud!? Mosby v. Liberty Mut. Ins. Co. 110 CA4th 995 (2003). Let us not forget the tort of invasion of privacy, you can sue the shiitake out of a sneaky gumshoe for videoing you in a place where you have a reasonable expectation of privacy under California Civil Code Section 1708.8.
Attorney and party sanctions: The WCAB can, in addition to fees and costs, levy a sanction up to $2,500.00 against a party or an attorney that are a result of “bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” Sorry, the $2,500.00 gets paid to the state General Fund; however, the sanctioned attorney will have to report any sanction over a thousand dollars to the State Bar.
Nuclear option referrals to the Audit Unit: The neutron bomb of remedies for truly egregious conduct is to hit a carrier where it hurts and report their practice to the regulatory body they do business under. An insurer who “knowingly violates Labor Code Section 5814 with frequency that indicates a general business practice,” subjects themselves to administrative penalties up to $400,000.00 to be imposed by
the Administrative Director. But why stop at the Administrative Director? How about a complaint to the California Department of Insurance?
Strict liability penalties: Labor Code Section 4650 imposes a strict liability penalty of 10% on late payment of temporary disability (TD) and permanent disability (PD). The first payment of TD must made no later than 14 days after the employer receives knowledge of the injury and disability on an accepted claim. Thereafter, TD must be paid every two weeks on the date designated at the time of first payment. Section 4650(b) mandates that the carrier start PD advances after the last payment of TD. For each failure to properly make these payments, the carrier must pay a 10% penalty on the amount delayed.
Unreasonable delay or refusal to provide benefits: Next, consider if the delay of benefits is unreasonable (consider the unreasonable denial of medical treatment). Under Labor Code Section 5814, a penalty can be assessed against the carrier up to 25% or up to $10,000.00 of the amount delayed. Once you have an award of compensation (you settled your case on “stipulation” or have an award from a judge), if benefits are unreasonably delayed, in addition to the 25%mentioned above, Labor Code Section 5814.5 allows a reasonable attorney fee for enforcing an award of benefits by the WCAB.
Penalties for failure to investigate: Willy nilly denials of your claim for workers’ compensation benefits without a solid evidentiary reason for the denial subjects the carrier to penalties under Labor Code Section 5814 as well. They have a duty to investigate. Also, a distinct penalty of 10% must be added to any periodic payments that should have been paid under the unsupported denial under Labor Code Section 4650 (d). It you want to play hard ball, for a failure to investigate, report the adjuster to the Audit Unit of the WCAB; under 8 Cal. Reg. 10111.1(d)(1) there can be a $5,000.00 audit penalty for each occurrence. Being the peaceful warrior at heart, I am hesitant to employ many of the remedies I have outlined above. Truly, I feel that discretion is the better part of valor in all aspects of life. Something truly extraordinary has to happen before y ou should go down the path I have outlined in this article. But sometimes you just get “mad as hell, and don’t want to take it anymore.” If you are there, you know where to find me.