If I am an Employee for the City of Los Angeles, Can I file my Workers’ Compensation Claim at the Workers’ Compensation Appeals Board?
Maybe. The City of Los Angeles has established an Alternative Dispute Resolution Program for which certain bargaining units have agreed to participate with it. Generally, the adjuster on your claim should be able to advise you as to whether or not you are part of the ADR program.
If I am part of ADR, are all of my Workers’ Compensation rights tied into this program?
No. Under the ADR program from the State of California, claims for Labor Code Section are not the jurisdiction of ADR. You are allowed to pursue these matters before the Workers’ Compensation Appeals Board for the State of California.
What is the purpose of the ADR program?
The goal of the program is to provide benefits that you would otherwise receive within the workers’ compensation system of the State of California. This includes the provision of medical treatment, the provision of total temporary disability benefits, the provision of permanent disability benefits and the provision of supplemental job displacement benefits.
What is the difference between the ADR program and getting benefits at the Workers’ Compensation Appeals Board?
Rather than having impartial Judges appointed from the State of California, you are to be provided assistance through a “neutral party.” The current neutral party for the City of Los Angeles is CCMS. California Claims Management Services. Sometimes, a State of California WCJ will not be happy with settlements brought to them believing that they are not adequate and demand that the claims administrator pay more benefits. This may not be the case within ADR. Decisions to do so may cause the City to choose a different administrator.
Are there advantages to ADR?
The City of Los Angeles claims that there are advantages to the ADR system. These include avoiding unnecessary misunderstandings, disputes and litigation; reducing delays encountered in the State System; improve communication between the parties; and increase satisfaction among injured workers. These are the alleged advantages of having such a system.
In order to achieve these goals, however, the infrastructure must be present. This means that there must be leadership and trained staffing present at all times. If such a program is not properly staffed, it will be unsuccessful in its goals.
What is the ADR Process in General?
In a recent article, Alternative Dispute Resolution in California Workers’ Compensation: Lessons Learned, it describes the components of a typical ADR program:
- There will be an Ombudsman: The goal of the ombudsman is to facilitate a flow of information, as well as the efficient resolution of disputes and ultimately the case as a whole. Ordinarily the ombudsman is involved when the injured worker is not represented by counsel. In some programs the ombudsman continues to be active even when an attorney is retained by the injured worker.
- There will be Mediation/Informal Conciliation: Typically a mediation or informal conciliation (the rough “equivalent” of an MSC in the state system) is scheduled in response to the filing of a grievance (the rough “equivalent” of a DR in the state system). When attending a mediation or informal conciliation, it should be expected that all parties will be present, including the employer.
- There will be Arbitration: Typically an arbitration (the rough “equivalent” of a trial in the state system) is triggered by the filing of a Request for Arbitration. The arbitrator will either be appointed by the relevant program administrator, or as in the Basic Crafts Program a list of potential arbitrators will be provided from which the parties may either select one by agreement, or strike names.
- There will be a Reconsideration/Removal procedure: The parties have a statutory right to file a Petition for Reconsideration or Removal in response to an arbitrator’s decision, just as these appeals would be available in response to a WCJ’s decision.
What is an Ombudsman?
In the City of Los Angeles ADR program, they have an Ombudsman. The Program is a person who can be contacted at any time there is an unresolved issues concerning your workers’ compensation claim. The Ombudsman is supposedly a “neutral third party.” The Ombudsman’s sole function is to answer questions, listen to concerns, provide an unbiased explanation of the law and to resolve problems before they become formal disputes.
When the City uses the term as being “unbiased”, this means that they are not an advocate on behalf of you as the injured worker.
The Ombudsman has experience and expertise in the legal and medical issues surrounding workers’ compensation injuries. The Ombudsman is to response to your inquiries as soon as possible. It is required that a dispute go through the Ombudsman before moving on to the other dispute resolution processes which are mediation and arbitration.
Usually, an Ombudsman is a retired Workers’ Compensation Judge. Workers’ Compensation Judges have extensive experience within Workers’ Compensation. Their experience, generally, is not in advocacy on behalf of injured workers. There are many issues that Applicant’s Attorneys focus on which are outside the training of a general practitioner or a WCJ.
What is the Mediation Process?
Mediation occurs if the Ombudsman cannot resolve your problem. In those circumstances, you can request a mediation. A mediator will be assigned to your case within three (3) working days. The Mediator will hold a joint meeting with you and the Claims Administrator to help find a solution that is mutually agreeable to the parties. Although the Mediator will make a recommendation to settle the dispute, you cannot be forced to accept their recommendation or sign any document giving up your rights.
How is a case tried in the ADR process?
The next step in the ADR process is Arbitration. Within 10 calendar days after the completion of the mediation, any party not satisfied with the outcome may request arbitration. The Arbitrator is like a Workers’ Compensation Judge. The Arbitrator holds a hearing within 10 calendar days of the referral to receive testimony from parties and witnesses and to consider all reports and other facts that are relevant to the dispute. Under completion of the hearing, the Arbitrator will render a written decision within 10 working days. Although the decisions of the Arbitrator are binding, they can be appealed to the Workers’ Compensation Appeal Board IWCAB) in San Francisco pursuant to California Code of Regulations Section 10865.
The Arbitrators are usually retired Workers’ Compensation Judges. Arbitrators are to be neutral and are not advocates on behalf of the injured worker.
Is there anyone who can help me with Medical Issues in the ADR program?
The LA ADR Program provides a Nurse Advocate program that is to respond to inquiries that require medical expertise beyond the knowledge of the Ombudsman.
Can I hire an Attorney?
Yes. As part of the ADR progress, you can hire an attorney to represent you. The hiring of an attorney can be at any point in time. It is recommended that you consult an attorney immediately to make an assessment as to whether services are required.
You will be responsible for paying for the attorney. Attorneys who handle take cases on contingency basis. This means that they will charge you only is you make a recovery on your case. Usually, the attorney’s fees are paid out of the permanent disability award.
How can an Attorney help?
The ADR program allows for the employment of medical evaluations to resolve disputes relating to the compensability of the claim, permanent disability, and other disputers pursuant to the Labor Code Section 4060, 4061,and 4062. These evaluations will be done by Agreed Medical Evaluators.
When an evaluation is requested, CCMS, the administrator for the City of Los Angeles, will provide an AME list from which you are to select one physician. The choice of that physician is very important. The choice of the wrong AME can be devastating. Therefore, employing experienced counsel who knows the AME physicians may make a big impact on your case.
How Does my Case Resolve?
If you are able to settle your case, the settlement must be approved by the Arbitrator who is selected by CCMS. If the matter is not resolve and tried, there will be an Award from the Arbitrator.
Are there Parts of the Workers’ Compensation Claim that are not handled within the ADR Program?
Yes. Among the matters not handled within the program are discrimination claims in Workers’ Compensation pursuant to Labor Code Section 132a. An Application can be filed at the Workers’ Compensation Appeals Board. The WCAB will be the venue at which that issue will be litigated.
Who are the Unions that have agreed to ADR?
Among the Unions that are participating in the program include SEIU 721.
If you would like a “free” consultation with a workers compensation attorney, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 25 years. Contact us today for more information.