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Workers’ Comp insurance carriers liable for unreasonable delays or bad faith ? Workers Comp Attorney - YouTube
Channel: MichaelBurgis
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hi guys my name is michael burgess not
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an attorney I wanted to touch bases
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really quick and I just got back from
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court and I want to educate my youtube
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videos or those people out in on the
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Internet as in regards to a little bit
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about penalties under California workers
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compensation in my personal opinion
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there is a lot of bad stuff going on in
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California workers compensation
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particularly with the insured failing to
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do what they're legally obligated to do
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so I just wanted to briefly articulate
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some of the the ammunition that we have
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to fight against some of the in my
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opinion insurance bad faith actions or
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inactions so first I want to touch bases
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on a rule and regulation that hardly any
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attorneys know or argue about and I'm
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not quite sure why because it is one of
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the biggest swords that we have as a
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advocate for California injured workers
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and that is room rag1 oh 109 essentially
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what this is is this is a it's codifying
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the insurance company's legal obligation
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and they have a legal obligation to
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actively investigate to determine what
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if any benefits are due and then
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actively provide those benefits so if
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you're injured and the injury arose out
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of it was within the course and scope of
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your employment and you file a worker's
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comp claim that's just a claim for
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benefits through the insurance policy
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that insurance company is legally
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obligated to investigate your claim and
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then actively provide benefits to you
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although in my experience you usually
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get a lot of passive neglect they'll
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either deny your case or if they accept
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their case they don't actively
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investigate to see what benefits are
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needed meaning maybe your injury is not
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just orthopedic maybe it has internal
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complications is causing stress
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depression and anxiety and you need to
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be referred out to other doctors to get
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treated maybe your your injury is
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catastrophic maybe it requires home
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health
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benefits or home modifications and the
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insurance company under rule in red 101
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oh nine is legally obligated to
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investigate and actively provide care
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midway through a case if they're put on
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notice that a specific benefit is needed
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where referrals need it or that home
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care is needed they're supposed to
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investigate and accurately provide these
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benefits
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remember rule and reg 101 oh nine this
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is a very big provision in the labor
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code and all you applicant attorneys you
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should really be looking at this because
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it's codifying what the the workers comp
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insurance is legally obligated to do now
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I take the position that if they fail to
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adhere to their legal obligation if they
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fail to investigate if they're put on
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notice of something and they fail to
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investigate where they fail to actively
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do what they're legally obligated to do
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it gives grounds for penalties now there
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are a few penalties on a touch basis
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when it's called 4650 d this is really
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if the insurance company catches
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something they're doing incorrectly like
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paying you a late temporary disability
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payment or a late payment of something
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they can do a ten percent self-imposed
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penalty but keep in mind this is when
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the insurance company catches that they
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messed up and they can do a ten percent
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self-imposed penalty although this is
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largely not going to be discussed
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because frankly those are not the
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penalty provisions I would focus on you
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have Labor Code 5814 and labor code 58
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14.5 labor code 58 fourteen is penalties
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for unreasonable delay so this is where
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an attorney can show that the defendants
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actions were unreasonable and that has
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delayed benefits to the injured worker
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so remember if you're utilizing rumah
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reg 101 oh nine they have a duty to
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investigate and actively provide
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benefits if you can show that they had
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sufficient knowledge that triggered
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their legal obligations to invest in
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actively provide benefits and they fail
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to do so and that this failure provided
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a unreasonable delay in benefits then
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you can get penalties under Labor Code
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5814 really the penalties are up to a
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twenty up to
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twenty-five percent penalty but not to
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exceed ten thousand dollars so
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essentially if there's an unreasonable
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delay in anything and you can point out
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to the court and the workers comp appeal
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board judge determines there's an
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unreasonable delay that you can get
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awarded up to twenty five percent
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penalty up to ten thousand dollars
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maximum now you can also potentially
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bifurcate these into several potential
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unreasonable delays and then it's really
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up to the jurisdiction and discretion of
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the court keep in mind that penalties
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cannot be awarded unless there's a
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petition a penalty petition you have to
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give the defendant due process a chance
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to investigate and respond before a
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worker's comp appeal board judge can
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award penalties now labor code 58 14.5
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can award an additional attorney fees if
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you're enforcing an order or an award so
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if the defendant has been ordered or the
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applicant has been awarded something and
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the defendant fails to pay it timely and
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that's been determined to be an
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unreasonable delay then in addition to
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the twenty five percent penalty or up to
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$10,000 you can also get a statutory
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attorney fees under fifty eight 14.5
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finally you have Labor Code 5813 this is
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for bad faith actions so if you can
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never show that a defendant's action or
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inaction is tantamount to a willful
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disregard for their statutory or legal
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obligations and is essentially a bad
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faith then you can get additional
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penalties under labor code 5813 which
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includes the twenty five percent
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increase which also includes statutory
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attorney fees even if there isn't a
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award and order so if you guys are out
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there and think that the these workers
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comp ensures are just willfully
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disregarding their legal obligations and
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and there's really nothing that can be
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done that's not the case remember that
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an attorney can file a penalty petition
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we can get penalties under labor code
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5814 labor code fifteen fourteen point
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five labor code 58 thirteen it just
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takes a lot of work but remember that if
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we can we can layout for the workers
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comp judge and show that a defendant is
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legally obligated to do certain things
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at a room ragueneau 109 and they're
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willfully failing to do it to me that's
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a per se unreasonable delay if you can
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show that you've put them on notice and
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they've continually failed to do what
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they're supposed to that's bad faith in
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my opinion okay and and if you guys are
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out there this is happening to you you
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really need an attorney who's going to
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advocate for you spend the time to draft
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the penalty petition which is a very
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tedious and litigate hope this has been
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helpful if you guys have any questions
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or concerns feel free to give us a call
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