6-Month Rule (California)

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6-Month Rule (California)

Postby 50Cal20 on Fri Nov 03, 2017 7:13 am

A worker has a specific injury while under dual employment where he worked for "employer A" for 1 month and for "employer B" for several years. "Employer A" is ordered to administer benefits. Employee then adds psych injury where "Employer A" denies liability due to the 6 Month Rule (LC3208.3). Question: Since this is a dual employment situation, is the injured worker's multi-year employment for "Employer B" imputed upon "Employer A" thus satisfying the 6 Month Rule?
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Re: 6-Month Rule (California)

Postby vampireinthenight on Fri Nov 03, 2017 8:03 am

Wow, that's an interesting one. My gut reaction would be no, the liability would only fall to employer #2, per the plain language of the section.
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Re: 6-Month Rule (California)

Postby LawAdvocate on Fri Nov 03, 2017 9:22 am

Agree with Vamp, with some revisions - Employer A administers all benefits under the Order, while the ultimate liability fall on Employer B when it comes to contribution, from what I have seen in these situations. One disclaimer, the wording of the Order would be significant here to provide a more definitive opinion as to what is the scope of benefits, dates of injury, etc. they were ordered to administer.
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Re: 6-Month Rule (California)

Postby jpod on Fri Nov 03, 2017 10:22 am

Agree with above as long as IW doesn't continue to be employed by E1.

LawAd. & 7 Vamp. correct me if I am wrong but isn't there case law that says if the IW continues to work for E1 and hits 6 months of employment with E1 after the DOI the restriction goes away?
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Re: 6-Month Rule (California)

Postby LawAdvocate on Fri Nov 03, 2017 12:42 pm

You are correct about the case law Jpod. I was assuming that the one month was the extent of the employment at Employer "A". It is not the amount of employment on the date of injury, it is all employment up to the date of settlemennt.
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Re: 6-Month Rule (California)

Postby 50Cal20 on Fri Nov 03, 2017 1:26 pm

In response to the inquiries: Employee only worked for Employer A for one month and never returned to work after the accident. Employer A plans on telling AA that if he wants psych benefits for applicant then he should petition for Employer B to administer the claim because Employer B cannot raise the 6 month rule as a defense. Otherwise, Employer A is going to argue applicant did not work for them for 6 months and therefore, there is no liability on their part for psych. But that dual employment is a nasty issue since applicant did work for Employer B for years.
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Re: 6-Month Rule (California)

Postby mytwocents on Sat Nov 04, 2017 12:48 pm

I’m not sure what you mean by “dual employment.” I figure you don’t mean concurrent employment because a specific injury sustained in one job would not involve the other. If you mean general and special employment, liability follows payroll per Ins. Code 11663 as long as both employers are insured or self-insured. If the long-term employer hired a staffing company to handle payroll and employee benefits a month before the injury, I don’t know what the answer would be. In one case, Martinez v. Mass Precision 2014 Cal. Wrk. Comp. P.D. LEXIS 577, the WCAB found that the general and special were jointly liable for the psych injury but there was a dissenting opinion that the claim against the less than six-month general employer should be barred.
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Re: 6-Month Rule (California)

Postby vampireinthenight on Mon Nov 06, 2017 10:32 am

Interesting panel decision, but I'd have to lean toward the dissent in that one. Not only is the prior case law clearly distinguishable, the majority is also based on some pretty flimsy assumptions. If I read it correctly, the majority thinks employers will stop, take a look at their entire employment structure, think about how they can avoid industrial psyche claims under 3208.3(d), make a wholesale policy shift to reclassify employees and channel them through a staffing agency, just to raise a possible defense in a future hypothetical psyche claim?

Yeah, I'm sure that was the reason... :roll:
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Re: 6-Month Rule (California)

Postby mytwocents on Mon Nov 06, 2017 8:47 pm

I agree with you about the dissent being right in that Martinez case but the WCAB has traditionally been hostile to the six-month rule in connection with compensable consequence injuries. (i.e. Garcia, Dreher). The six-month rule was originally limited to stress CTs and was designed to eliminate claims filed by disgruntled employees who didn't pass probation. Then the Legislature amended the statute to remove the language excluding compensable consequence injuries. It’s hard to understand why a legitimate psych claim arising out of a serious physical injury should be barred just because the person was a recent hire.
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Re: 6-Month Rule (California)

Postby vampireinthenight on Tue Nov 07, 2017 9:31 am

True enough. I think it's a damn shame that it got to the point where we are now. I feel sorry for all of the thousands and thousands of legitimate psyche injuries that are barred by arbitrary rules because of the abuses of the few.
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