Managing Employee Injuries and Disability and Occupational Safety

A LL A BOUT THE A UTHORS With offices in Los Angeles, San Francisco, Fresno, San Diego and Sacramento, the law firm of Liebert Cassidy Whitmore represents public agency management in all aspects of labor and employment law, labor relations, and education law. The Firm's representation of cities, counties, special districts, transit authorities, school districts, and colleges throughout California, encompasses all phases of counseling and representational services in negotiations, arbitrations, fact findings, and administrative proceedings before local, state and federal boards and commissions, including the Public Employment Relations Board, Fair Employment and Housing Commission, Equal Employment Opportunity Commission, Department of Labor and the Office for Civil Rights. The Firm regularly handles a wide variety of labor and employment litigation, from the inception of complaints through trial and appeal, in state and federal courts. The Firm places a unique emphasis on preventive measures to ensure compliance with the law and to avoid costly litigation. For more than thirty years, the Firm has successfully developed and presented training workshops and speeches on all aspects of employment relations for numerous public agencies and state and federal public sector coalitions, including the National League of Cities, National Association of Counties, International Personnel Management Association, United States Government Finance Officers Association, National Employment Law Institute, National Public Employer Labor Relations Association, California Public Employer Labor Relations Association, County Counsels’ Association of California, League of California Cities, California State Association of Counties, Public Agency Risk Management Authority, the Association of California School Administrators, the California School Boards Association, and the California Association of Independent Schools.

This workbook contains generalized legal information as it existed at the time the workbook was prepared. Changes in the law occur on an on going basis. For these reasons, the legal information cited in this workbook should not be acted upon in any particular situation without professional advice.

Copyright © 201 9 Liebert Cassidy Whitmore. All rights reserved. No part of this publication may be reproduced, stored, transmitted, or disseminated in any form or by any means without prior written permission from Liebert Cassidy Whitmore.

T ABLE OF C ONTENTS

5-19 S

S ECTION 1 Introduction ...............................................................................................................................................................8 A. Historical Background.....................................................................................................................................8 1. Constitutional Authorization ....................................................................................................................9 2. Legislative History ...................................................................................................................................9 B. California Law Summarized ...........................................................................................................................9 1. Administration of California Plan ..........................................................................................................10 2. Department of Industrial Relations ........................................................................................................10 3. Administrative Director..........................................................................................................................10 4. Qualified Medical Evaluators.................................................................................................................10 5. Information and Assistance Bureau .......................................................................................................11 6. Information and Assistance Officer .......................................................................................................11 7. Workers’ Compensation Appeals Board ................................................................................................11 8. Workers’ Compensation Judges.............................................................................................................12 S ECTION 2 Covered Employment ..................................................................................................................................................12 A. Employer .......................................................................................................................................................12 B. Employee.......................................................................................................................................................13 1. Defined...................................................................................................................................................13 2. Exclusions ..............................................................................................................................................14 3. Special Categories of Persons Who May Be “Employees” of Public Agencies.....................................15 4. Persons Specifically Included as “Employees” ......................................................................................16 C. Special Circumstances...................................................................................................................................16 1. Pre-employment Tryout .........................................................................................................................16 2. Illegal Activities .....................................................................................................................................17 3. Independent Contractor ..........................................................................................................................17 4. Presumption of Employment..................................................................................................................17 S ECTION 3 What Is an Industrial Injury? .......................................................................................................................................18 A. Defined ..........................................................................................................................................................18 B. Arising out of Employment ...........................................................................................................................18 1. Unexplained Accidents ..........................................................................................................................18 2. Pre-Existing Conditions .........................................................................................................................19 3. Horseplay ...............................................................................................................................................19 C. Course of Employment..................................................................................................................................19 1. Going and Coming Rule.........................................................................................................................20 2. Premises Line .........................................................................................................................................20 3. Entrance, Exit.........................................................................................................................................20 4. Employer Compensated Travel ..............................................................................................................21 5. Required Transportation.........................................................................................................................21 6. Personal Activities .................................................................................................................................21 7. Other Special Circumstances of Injury ..................................................................................................23 D. Categories of Injuries ....................................................................................................................................26 1. Specific...................................................................................................................................................26 2. Cumulative .............................................................................................................................................26 E. Types of Injuries............................................................................................................................................27 1. Occupational Disease .............................................................................................................................27 2. Communicable Disease ..........................................................................................................................27 3. Idiopathic Seizure...................................................................................................................................27

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4. Mental or Emotional Stress ....................................................................................................................28 5. Heart Disease .........................................................................................................................................28 6. Cancer ....................................................................................................................................................28 7. Special Exposure ....................................................................................................................................28 8. Secondary Injuries..................................................................................................................................29 F. Presumptions of Injury ..................................................................................................................................29 1. Injuries Covered .....................................................................................................................................29 2. Employment Covered.............................................................................................................................29 3. Eligibility ...............................................................................................................................................29 4. Effect......................................................................................................................................................30 A. In General......................................................................................................................................................30 B. Medical Benefits ...........................................................................................................................................31 1. Notice of Injury ......................................................................................................................................31 2. Employer’s Responsibility .....................................................................................................................31 3. Control of Medical Treatment – Until January 1, 2005 .........................................................................31 4. Control of Medical Treatment – After January 1, 2005 .........................................................................32 5. Reimbursement for Medical Examination Expenses..............................................................................33 6. Reasonable and Necessary Treatment ....................................................................................................33 C. Classes of Disability Benefits........................................................................................................................34 1. Temporary Disability .............................................................................................................................34 2. Benefit....................................................................................................................................................34 3. Labor Code Section 4850 Benefits.........................................................................................................35 4. Method of Payment ................................................................................................................................35 5. Timing of Payments ...............................................................................................................................35 6. Waiting Period .......................................................................................................................................35 7. Amounts .................................................................................................................................................35 8. Duration of Temporary Disability Payments/Labor Code Section 4850 Benefits .................................36 9. Formula ..................................................................................................................................................36 10. Permanent Disability ..............................................................................................................................37 11. Permanent Partial Disability...................................................................................................................39 12. Subsequent Injuries ................................................................................................................................43 13. Supplemental Job Displacement Benefits ..............................................................................................43 14. Death Benefit .........................................................................................................................................43 S ECTION 5 WCAB Procedures and Administration of the System................................................................................................45 A. Introduction ...................................................................................................................................................45 1. Notices ...................................................................................................................................................45 2. Medical Legal Procedures......................................................................................................................45 3. Statute of Limitations .............................................................................................................................46 B. WCAB Proceedings ......................................................................................................................................46 1. Commencement of WCAB Proceedings ................................................................................................46 2. Hearing...................................................................................................................................................47 3. Evidence.................................................................................................................................................47 4. Decision .................................................................................................................................................47 5. Appeal of Decision.................................................................................................................................47 6. Continuing Jurisdiction ..........................................................................................................................48 7. Compromise, Settlement, and Lump Sum Computation ........................................................................48 8. Reopening, Modification, Termination and Redistribution....................................................................49 S ECTION 4 Benefits

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S ECTION 6 Penalties

.............................................................................................................................................................50 A. Unreasonable Delay in Furnishing Benefits (10%) .......................................................................................50 1. Until 6-1-04............................................................................................................................................50 2. After 6-1-04............................................................................................................................................51 B. Civil Penalty Legislation Effective January 1, 1990 .....................................................................................51 C. Late Payment of Medical Fees ......................................................................................................................51 D. Serious and Willful Misconduct (50%) .........................................................................................................51 1. Defined...................................................................................................................................................51 2. Executive, Etc. Defined..........................................................................................................................52 3. Failure to Provide a Safe Place to Work ................................................................................................52 4. Violation of a Safety Order ....................................................................................................................52 5. Causation................................................................................................................................................52 E. Challenges to Benefits...................................................................................................................................53 F. Serious and Willful Misconduct of an Employee..........................................................................................53 G. Discrimination...............................................................................................................................................53 S ECTION 7 Third Party Liability and Employee Civil Actions ......................................................................................................53 A. Third Party Subrogation ................................................................................................................................53 B. Who are Third Parties?..................................................................................................................................54 C. Actions against Negligent Third Parties........................................................................................................55 D. Firefighter’s Rule ..........................................................................................................................................55 E. Exclusive Remedy as to Employer................................................................................................................55 1. Exceptions ..............................................................................................................................................55 F. Public Agency Liability Arising from the Issuance of Building Permits ......................................................56 S ECTION 8 Employer Reporting Responsibilities, Notice Obligations, and Investigation and Claims Management ....................56 A. Introduction ...................................................................................................................................................56 1. Recording and Reporting of Occupational Injury or Illness...................................................................56 2. Notice Requirements under the Workers’ Compensation Reform Act ..................................................57 3. Risk Management Suggestion ................................................................................................................58 B. Investigative Checklists.................................................................................................................................58 C. Investigative Checklist for Injuries on Employer’s Premises........................................................................58 D. Investigative Checklist for Injuries off Employer’s Premises .......................................................................59 E. Investigative Checklist - Intoxication............................................................................................................59 F. Investigative Checklist – Altercations and Assault .......................................................................................59 G. Investigative Checklist – Fall as the Cause of Injury ....................................................................................59 H. Investigative Checklist – Back Injuries .........................................................................................................60 I. Preserving the Confidentiality of the Investigative Report ...........................................................................60 S ECTION 9 Personnel Management and the Industrially Injured Employee ..................................................................................61 A. Introduction ...................................................................................................................................................61 B. Labor Code Section 132a ..............................................................................................................................62 1. Introduction and Overview.....................................................................................................................62 2. Discriminatory Acts Prohibited..............................................................................................................63 3. Discrimination Per Se, and the Business Realities Defense ...................................................................64 4. Other Situations to Which Section 132a Has Been Applied ..................................................................67 C. Management Checklist for Avoiding Liability for Claims under Labor Code Section 132a ........................67

E NDNOTES ...................................................................................................................................................................69

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I NTRODUCTION

Section 1

A. H ISTORICAL B ACKGROUND The common law imposed a number of duties on employers for the protection of their employees and an action for damages could be brought for the breach of these duties. However, as a practical matter, the law failed to provide adequate remedies for injuries and deaths. The common law duties imposed upon an employer were:



To provide a safe place to work,

 To provide safe appliances, tools, and equipment,

 To give warnings of dangers of which the employee might reasonably be expected to remain in ignorance,  To provide a sufficient number of fit, trained or suitable employees to perform assigned tasks, and  To promulgate and enforce rules relating to employee conduct which would make the work place safe.

Before the no-fault system of workers’ compensation developed, when an employee was injured in the course of employment, an employer could escape liability when the employee was guilty of contributory negligence, where the employee assumed the risk of employment, and when the injury was the result of negligence of another employee. Workers’ compensation laws abolished these defenses and established absolute liability on the part of the employer, regardless of negligence by either party. Employer’s liability acts came into being in response to rising industrial injury and death rates in the 19th century and in response to dissatisfaction with the common law remedies available to employees. By 1908, almost every American jurisdiction had passed some type of employer liability act. Great Britain’s Workmen’s Compensation Act of 1897 provided the prototype and was the forerunner of the majority of compensation acts passed in the early 1900’s in the United States. The British act contained important limitations: only hazardous employments were covered, there were no insurance provisions and the employer bore the complete burden of compensation benefit costs. The statute also gave rise to a key phrase “arising out of and in the course of employment” which is generally found today in compensation statutes in the United States. There was a gradual recognition after the turn of the century that the common law remedies of employees injured or killed on the job were filled with inequities. However, the states were slow to adopt workers’ compensation laws and initial attempts to do so faced legal and political opposition.

California was one of the first states to enact workers’ compensation legislation. Workers’ Compensation Laws in California are of constitutional and statutory origin.

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1. C ONSTITUTIONAL A UTHORIZATION The California constitution vests the legislature with the power to create and enforce a complete system of workers’ compensation. This authority is currently contained in Article XIV, Section 4, which provides that the Legislature is “vested with plenary power, unlimited by any provision of this constitution, to create and enforce a complete system of workers’ compensation by appropriate legislation, and in that behalf to create and enforce a liability on the part of any and all persons to compensate any and all of their workers for injury or disability, and their dependents for death incurred or sustained by the said workers in the course of their employment, irrespective of the fault of any party.” 2. L EGISLATIVE H ISTORY Under authority of a California constitutional amendment, the legislature established a voluntary plan of workers’ compensation in 1911. Few employers adopted the plan because of the cost. In 1913, the Boynton Act, which established a compulsory program for employers, was passed. The act was upheld under challenge as a proper exercise of the state’s police powers. The purpose of the workers’ compensation legislation was to provide timely financial assistance to employees who suffered industrial injuries and to insure fast, adequate remedies without consideration of fault. The basic premise underlying the legislation is that industry, as a cost of doing business, should provide for care and rehabilitation of workers disabled by work injuries. The Boynton Act, as amended over the years, serves as a basis for our current law. B. C ALIFORNIA L AW S UMMARIZED The California Workers’ Compensation Law establishes in all, except certain, designated employments, an exclusive system of compensation for injuries, or death to employees arising out of and in the course of their employment and not caused by the employee’s intoxication or intentionally self-inflicted injury. The California Workers’ Compensation Law provides the broadest coverage of employment and benefits in the nation. Virtually every employer and employee within the state of California is subject to the compulsory provisions of its workers’ compensation law. Every type of legal entity may be an employer: individuals, partnerships, corporations, associations, the state, counties, cities, special purpose or taxing districts and other agencies. The law applies with equal force to citizens and resident aliens. The Act provides for medical treatment, temporary disability benefits, permanent disability benefits, vocational rehabilitation benefits, medical benefits, and death benefits. The benefits are funded through insurance or through self-funding by qualified employers. Benefits are administered through a process of self-administration with a right of appeal to the Workers’ Compensation Appeals Board, the California Appellate Courts and the California Supreme Court. The law also provides for preventive measures in the form of safety laws and administrative rules. The law is frequently liberally construed in favor of providing benefits.

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Labor Code Section 3202. As of April 19, 2004 all parties and lien claimant must meet the evidentiary burden of proof by a preponderance of the evidence.

1. A DMINISTRATION OF C ALIFORNIA P LAN Under the California Plan, employers or their insurance carriers make the initial determination of the validity of the employee’s workers’ compensation claim. Litigated cases are heard and determined by the Workers’ Compensation Appeals Board (WCAB). The WCAB is a regularly constituted court of law. The court is a tribunal of limited jurisdiction with the unique feature of having special bureaus to assist it and facilitate the litigation before it. 2. D EPARTMENT OF I NDUSTRIAL R ELATIONS Administration of the workers’ compensation statute rests with the Department of Industrial Relations, Division of Workers’ Compensation. The Division is responsible for the administration of the dispute resolution system, oversight of district offices, providing non- litigation services for injured workers, and providing administrative support for the WCAB. The Division is divided into four main offices: Injured Worker Services, Legal Services, Administrative Support, and WCAB Administration. The Division is headed by an administrative director. 3. A DMINISTRATIVE D IRECTOR The head of the Division of Workers’ Compensation is the Administrative Director. The Administrative Director is appointed by the governor and serves at the governor’s pleasure. Labor Code Section 51. The Director makes all appointments within the Division and is in charge of the various bureaus which assist the Appeals Board. The Administrative Director may adopt, amend or repeal such regulations as are reasonably necessary to enforce the provisions of the workers’ compensation law. Specifically, he will adopt rules establishing a schedule of violations and civil penalties for faulty benefit delivery (Labor Code Section 129.5); and specifying the manner in which workers are to be informed about such rights as rehabilitation, permanent disability, medical evaluations, services, and attorneys’ fees. 4. Q UALIFIED M EDICAL E VALUATORS The Administrative Director appoints Qualified Medical Evaluators who serve two-year terms. The Qualified Medical Evaluators must be board certified or qualified and have an active practice of which 33% or 1/3 is direct patient care or have served as an Agreed Medical Examiner at least eight times during the twelve months before applying. Labor Code Section 139.2.

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5. I NFORMATION AND A SSISTANCE B UREAU The information and assistance officer’s duties include providing workers’ compensation information, resolving benefit disputes informally, monitoring payment of workers’ compensation benefits, and auditing and enforcing the rules and regulations. Labor Code Section 5451. 6. I NFORMATION AND A SSISTANCE O FFICER The Administrative Director is mandated by statute to provide for personnel and a program for information to employers, employees and the public. The Director is to adopt rules and regulations establishing informal procedures for assisting parties in resolving cases. The Information and Assistance Officer may make recommendations which are served on the parties or their representatives. An employee’s submission of a claim to the Officer tolls any applicable statute of limitations until 60 days after the issuance of the Officer’s recommendation. a. Uninsured Employers’ Benefits Trust Fund The Legislature established the Uninsured Employers’ Fund to ensure that workers who happen to be employed by illegally uninsured employers are not deprived of workers’ compensation benefits. The fund is created in the State Treasury and is continually appropriated. Labor Code Section 3716. The Fund can pursue an illegally uninsured employer to recover benefits which the Fund paid to an employee. b. Subsequent Injuries Workers’ Account To facilitate the rehabilitation and encourage employment of handicapped workers, thereby preventing them from becoming public charges, the legislature created the Subsequent Injuries Fund. The fund is financed from the State Treasury through a revolving fund payable to the State Compensation Insurance Fund. Labor Code Section 4750-4755. The Fund is also financed through the payment of death benefits when an employee who dies due to an industrial injury leaves no dependents. c. Asbestos Workers’ Account In 1980 the Legislature declared it to be state policy that qualified asbestos workers suffering from asbestosis be able to recover temporary disability and medical benefits promptly. Accordingly, the new Asbestos Workers’ Account was empowered to make payments as advances under certain specified conditions. Labor Code Sections 4401-4411. 7. W ORKERS ’ C OMPENSATION A PPEALS B OARD The Workers’ Compensation Appeals Board is composed of seven commissioners, five of whom must be experienced attorneys admitted to practice in California. Labor Code Sections 111-112. The commissioners of the Appeals Board are appointed for six year terms by the governor and receive a salary equivalent to that of a Superior Court Judge. Labor Code Section 112.

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Cases appealed to the Board are assigned to panels of three commissioners unless it is determined that a case is of such unusual significance that it should be considered by the entire Board. The Appeals Board has the same enforcement authority as courts of general jurisdiction. It has the power to promulgate rules of practice and procedure, issue subpoenas, make orders necessary to enforce its awards, punish for contempt, and appoint guardians ad litem or trustees. In addition, the Board has authority to conduct investigative hearings. 8. W ORKERS ’ C OMPENSATION J UDGES The trial judges in the workers’ compensation field are by statute denominated referees. Labor Code Section 27. The Appeals Board has conferred upon these referees the title of Workers’ Compensation Judge. The Workers’ Compensation Judge must be an attorney with five years of experience in the practice of law and shall have experience in Workers’ Compensation law (if appointed on or after 01/01/03). Workers’ Compensation Judges must maintain active membership in the State Bar during their tenure. The Workers’ Compensation Judges conduct hearings, take evidence, and render final decisions subject to the parties’ right of appeal. These judges serve primarily as trial judges assessing the credibility of witnesses, analyzing evidence, ruling on admissibility and determining both legal and factual issues.

C OVERED E MPLOYMENT

Section 2

A. E MPLOYER Generally, an employer is defined as one who employs another to perform services and who controls or has a right to control the other’s conduct in performing such services. Generally, an employer has not only the power to control, choose and direct the employee with regard to the object to be accomplished but also has the power to control the details of the work. The California Workers’ Compensation Statute defines employment as the “contract of employment by which one who is called the employer engages another who is called the employee to do something for the benefit of the employer or a third person.” Labor Code Section 2750.

The California Workers’ Compensation Act defines employer to mean:



The state and every state agency;

 Each county, city, district and all public and quasi- public corporations and public agencies therein;  Every person including any public service corporation which has any natural person in service; and

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 The legal representative of any deceased employer. Labor Code Section 3300.

Factors which tend to substantiate employer status are:

 The employer controls the details or manner of doing work;

 The employer has the right to terminate the work relationship;



The employer pays wages or salary;

 The employer makes deductions for unemployment, disability insurance and social security;

 The employer furnishes all materials and tools; and

 The employer requires performance during specific hours and days.

B. E MPLOYEE

1. D EFINED The California Workers’ Compensation Statute defines employee to mean every person in the service of an employer under any appointment or contract of hire or apprenticeship, expressed or implied, oral or written, lawfully or unlawful and including:



Aliens and minors;

 All elected and appointed paid public officials;

 All officers and members of boards of directors;

 Any person employed by the owner or occupant of residential dwelling whose duties are incidental to the ownership, maintenance or use of the dwelling;  All persons incarcerated in a state penal or correctional institution while engaged in assigned work;  All working members of a partnership receiving wages irrespective of profits from the partnership;  Any person whose employment training is arranged by the State Department of Rehabilitation for an employer;  Any person who performs domestic service comprising in-home supportive services under the welfare and institutions code; and  Any person while engaged by contract for creation of a specially ordered work of authorship in which the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. Labor Code Sections 3351 and 3351.5.

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2. E XCLUSIONS

Particular classes of employees are excluded from workers’ compensation coverage. Labor Code Section 3352 excludes the following employees:

 Any person employed by the owner or the occupant of a residential dwelling whose duties are incidental to the ownership, maintenance or use of that dwelling if the person is employed by his parent, spouse or child;  Any person performing services in return for aid or sustenance only and received from any religious, charitable or relief organization;  Any person holding an appointment as deputy clerk, deputy sheriff or deputy constable, appointed for his or her own convenience and receiving no compensation from the county or the municipal corporation or from the citizens for his or her services as a deputy;  Any person performing voluntary services at or for a recreational camp, hut or lodge operated by a non-profit organization of which he or she or a member of his or her family is a member and who receives no compensation for those services other than meals, lodging or transportation;  Any person performing voluntary service as a ski patrolman who receives no compensation for those services other than meals or lodging or the use of the ski tow or ski lift facilities;  Any person other than a regular employee participating in sports or athletics who receives no compensation for the participation other than the use of athletic equipment, uniforms, transportation, travel, meals, lodging or other expenses;  Any person performing voluntary service for a public agency or a private non-profit organization who receives no compensation for the services other than meals, transportation, lodging or reimbursement for incidental expenses;  Any person other than a regular employee performing officiating services relating to amateur sporting events sponsored by any public agency or private not for profit corporation who receives no compensation for those services other than a stipend for each day of service no greater than the amount estimated for expenses;  Any student participating as an athlete in amateur sporting events sponsored by any public agency, public, private or non-profit college, university, or school who receives no compensation for the participation other than the use of athletic equipment, uniforms, transportation, travel, meals, lodging, scholarships, grants and aid and other expenses incidental thereto;  Any law enforcement officer who is regularly employed by a local or state law enforcement agency in an adjoining state and is deputized to work under the supervision of a California Peace Officer. Labor Code Section 3352;

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 Any Independent Contractor, meaning a person who renders service for a specified compensation for a specified result under the control of his principal as to the result of his work and not as to the means by which that result is to be accomplished. Labor Code Section 3353. (See further discussion of Independent Contractors below.);  Watchman for non-industrial establishments paid by subscription by several persons. Labor Code Section 3358; and  Prison Labor. As a general rule, a prisoner is not an employee and therefore not entitled to workers’ compensation coverage when performing required work, even though a nominal sum may be paid for the service rendered. Prisoners incarcerated in local correctional institutions may be considered covered employees while performing work on a “volunteer” basis. Penal Code Section 4017. 1 Prisoners in state penal institutions are in some circumstances covered while performing assigned duties.

3. S PECIAL C ATEGORIES OF P ERSONS W HO M AY B E “E MPLOYEES ” OF P UBLIC A GENCIES As relevant to public agencies, certain persons may be considered “employees” and hence covered if certain specified conditions are met or if the governing board of the public agency adopts a resolution to declare them to be employees. Examples of these are:

 Volunteers. Persons performing voluntary services without pay for a public agency are employees if the agency adopts a resolution declaring them to be employees. Performing voluntary services without pay means a person who performs services without remuneration other than meals, lodging, transportation or reimbursement for incidental expenses.  Wards of the Juvenile Court, juvenile probationers and juvenile traffic offenders performing rehabilitation work without pay on public property may be covered upon passage of resolution by the appropriate County Board of Supervisors. Labor Code Sections 3364.55, 3364.6, 3364.7.  Certain fire suppression personnel performing fire suppression service on public land at the direct request of a public officer or employee charged with the duty of suppressing or fighting fires may be covered. Labor Code Section 3365.  A person rendering voluntary technical service to a public entity to prevent a fire, explosion or other hazardous occurrence, at the request of a fire or law enforcement officer, is deemed an employee of the public entity for whose behalf the technical service was rendered. Labor Code Section 3367.  Members of a posse comitatus or persons engaged in providing voluntary assistance to a peace officer at the request of the peace officer are deemed employees. Labor Code Section 3366.

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 Volunteer firefighters. Each member registered as an active firefighter member of any regularly organized volunteer fire department having official recognition and full or partial support of the government of the county, city, town or district in which the volunteer fire department is located is an employee of that county, city, town or district for the purposes of workers’ compensation. Labor Code Section 3361.  Authorized volunteers of parks and recreation districts. A volunteer, an unsalaried person authorized by a governing board of a parks and recreation district to perform volunteer services for the district will be considered a covered employee upon adoption of a resolution of the governing board of the district so declaring. Labor Code Section 3361.5.

4. P ERSONS S PECIFICALLY I NCLUDED AS “E MPLOYEES ”

As relevant to public agencies, certain classifications of employees are specifically included as covered employees.

Students

A student obtaining work experience as an employee of a school district unless receiving pay for the work from another is covered by workers’ compensation laws.

Volunteer Police Officers

Volunteer Police Officers are covered while on active duty.

Sheriffs, Reserve Deputies

Sheriffs and reserve deputies are covered while on active duty.

Volunteer Firefighters

Volunteer Firefighters are covered while on active duty

Blind or Physically Handicapped Persons Blind or physically handicapped persons working in state rehabilitation programs are covered.

C. S PECIAL C IRCUMSTANCES

1. P RE - EMPLOYMENT T RYOUT While a job applicant is not an employee, 2 a “tryout” program is a structured relationship between an “employee” and employer and an injury occurring during a tryout may be compensable. Thus, in one case, the California Supreme Court affirmed a grant of benefits to an individual who was injured while taking an agility test for employment as a refuse crew worker. 3

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2. I LLEGAL A CTIVITIES

The labor code expressly provides that employees are not to be denied compensation benefits even if their employer and they are engaged in unlawful activities.

Note, however, that if an employee’s illegal activity is intentional or egregious; the misconduct may take him outside the course of employment so that an injury which occurs because of this misconduct may not be compensable. This issue is discussed more fully in Chapter 3.

3. I NDEPENDENT C ONTRACTOR An employee is one who performs services for another and who is subject to the direction and control of his employer as to the manner in which it is done. An independent contractor is also retained to perform a service but is chargeable only with the result and is not subject to the control of the employer in the manner in which details are carried out.

The following factors tend to prove an independent contractor relationship, when the person performing services:

 Controls the details of the work being done,

 Is entitled to payment of a contract fee, lump sum or specific fee as established in the contractual agreement,

 Furnishes his or her own tools or materials,

 Establishes his own work schedule and work hours,



Is generally an expert in the field,

 Has a general regular business or special license and performs the services for many customers,

 And holds self forth as a professional person. 4

4. P RESUMPTION OF E MPLOYMENT

The operation of the Workers’ Compensation Act and the jurisdiction of the Workers’ Compensation Appeals Board in a given case depend on the existence of an injury arising out of and occurring in the course of employment. Occasionally, a case will arise in which the injured contends he is an employee but the alleged employer claims he did not employ the injured. In such a situation, the injured is presumed to be an employee if he shows that he was performing a service for the alleged employer. The alleged employer has the right to counter with evidence tending to negate an employment relationship. The employee may then present evidence to bolster the presumption of employment. Labor Code Section 3357.

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W HAT I S AN I NDUSTRIAL I NJURY ?

Section 3

A. D EFINED An employee is eligible for coverage under the workers’ compensation statute if he or she sustains an injury in the course of or arising out of employment, regardless of fault. Labor Code Section 3208 defines injury as including “any injury or disease arising out of employment, including injuries to artificial members, dentures, hearing aids, eyeglasses and medical braces of any types....” Labor Code Section 5500.5 further recognizes contraction of a communicable disease, development of an occupational disease, and injury due to repetitive trauma. In addition, mental and emotional stress or illnesses are considered compensable injuries. B. A RISING OUT OF E MPLOYMENT It has generally been held that “arising out of” is the causal element and refers to the origin of the injury. The statutory test for “arising out of employment” has included the requirement that the injury be “proximately caused by the employment.” Labor Code Section 3600a(3). However, this approach was found to be much too narrow and in conflict with the objectives of the workers’ compensation statute. The modern cases have discarded most of the rules associated with the concept of “proximate cause” and have interpreted the causal element in the broadest sense. Recent decisions have liberalized the interpretation to allow an injury to be compensable if it is considered “on the job” or “work connected.” More recently, the California courts have found that liability depends on the nature of the risk. Three types of risk can be identified: industrial, neutral, and personal. Where the risk is either industrial or neutral, the injury is compensable. Where the risk is personal, i.e., related solely to the employee’s person, the injury is not compensable. Even the most neutral of risks can be included: for example, an employee at work who is accidentally struck by a stray bullet that enters the work place from next door would be covered. Injuries stemming from acts of God, travel on streets and highways, risks brought to the work place by employees (matches, firearms, etc.), and assaults arising from the nature of the employment or out of a work related controversy are frequently held to be compensable. 1. U NEXPLAINED A CCIDENTS Coverage questions arise in cases of unexplained deaths, unexplained falls, and idiopathic falls. Application of a rule called the positional risk doctrine can result in recovery, even if the cause of the fall or death is unknown, because of the employment relation that existed at the time. Given the objectives and policies of workers’ compensation legislation, the courts often resolve unexplained injury and death cases in favor of the employee.

Managing Employee Injuries, Disability and Occupational Safety ©2019 (s) Liebert Cassidy Whitmore 18