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settlements (California) (California)

PostPosted: Sun Sep 20, 2009 6:15 am
by kleinmanr
Are there any cases on the applicability of Reg. 10874? Settling by prescribed form.

In my case, applicant filed a claim form for a psyche injury based upon actions of a co-worker.
the ER and applicant then agreed to separation (termination?) and the ER paid her several thousand dollars after having her execute a release which purported to to release all claims against the ER, including a 1542 paragraph.

Would this release allow a WCJ to dismiss the WC claim? or would the claim proceed in light of Reg 10874? please cite case law.

Re: settlements (California) (California)

PostPosted: Sun Sep 20, 2009 8:07 am
The issue is not really the form the settlement takes but the exclusive jurisdiction of the wcab over issues involving WC injuries. Any settlement that proports to settle the WC aspects of the case must be approved by the WCAB to become final. Until the WCAB and reviewed and approved the settlement, any dispute is still the subject of action before the WCAB.

Re: settlements (California) (California)

PostPosted: Mon Sep 21, 2009 3:23 am
by davidd
A quick search on the main WCC site produced one case that dealt specifically with 10874.

Jefferson v. CA Dept. of Youth Authority Date: 07/01/02 28 Cal.4th 299; 67 CCC 727

"In this case, we consider whether a compromise and release executed in a workers' compensation proceeding, that expressly releases "all claims and causes of action" relating to an injury and that includes an attachment establishing the parties' intent to include civil claims within the scope of the release, bars a civil action under the California Fair Employment and Housing Act (FEHA) (Gov. Code, ยง 12900 et seq.) for damages relating to the same events that resulted in the injury. We conclude the express terms of the release evidence the parties' intent to settle the FEHA action. Accordingly, we affirm the judgment of the Court of Appeal."

Not quite what you are looking for but you may want to read the opinion to see if it guides you.

Re: settlements (California) (California)

PostPosted: Mon Sep 21, 2009 10:32 am
by kleinmanr
I did read the case... It sorta the opposite situation of what I have. thank you for your input.

Re: settlements (California) (California) (California)

PostPosted: Mon Sep 21, 2009 12:56 pm
by billarm
I believe your client is going to need to carefully review and understand the provisions from L.C 5000 to 5003.
Those sections provide that workers' compensation benefits, as they are defined in Labor Code 3207 can only be settled through an agreement submitted to and approved by a workers' compensation judge.
Since your agreement was not approved, it is suspect. It is probably very suspect.
Depending on what is in the content of your settlement agreement, i.e., it specifically says the employee was settling rights to WC benefits, it might be set up as a defense to the WC claim by asking the WCAB to approve it at this point.
However, by doing that, it might also be raising more red flags and legal liability.
I would recommend being very, very cautious. Amongst other issues, you don't want the employer getting a civil suit under the ever expanding and permissible theories in CA, when they paid money thinking the release would protect them.
The best that can be stated is that proving the settlement agreement is a bar to WC benefits is going to be an affirmative defense. If a WCJ cannot review it and easily understand the amount that was being paid to release the WC benefits, and that the amount was/is adequate, and the employee knew it was a release of the right to WC benefits, it could well be disapproved as a bar.
Whether that type of determination could then give rise to a 132a and/or 132a civil action, or more would depend on your facts.
Does the employer have WC coverage? If they do, they need to report this to the carrier to manage and defend.

Bill Armstrong
Armstrong, Callan & Shiu, LLP.