Ten Tips for a More Productive Contribution Arbitration

• Jurisdiction: California,United States
• Citation: Vol. 32 No. 4
• Publication year: 2019
• topic: Business of Law,Bankruptcy and Insolvency,Contracts,Insurance Law,Labor Law,Civil Procedure,Workers Compensation

Ten Tips for a More Productive Contribution Arbitration

The Hon. George W. Mason (Ret.) Oakland, California

Imagine you are a new associate in a large defense firm. One of the senior partners assigns you a case that requires the filing of a Petition for Contribution, but you have never handled a contribution arbitration. I believe I can offer you some helpful suggestions for just such occasions since I have handled over 500 arbitrations in the 14 years since my retirement from the WCAB as the Presiding Judge in Oakland. The purpose of this article is to provide some practical tips that may help newer lawyers with their handling of contribution cases.

Background

Before getting into my ten tips, I will give you some general information to be aware of concerning various issues that often come up in contribution arbitration.

Be alert to the situation of there being several separate cumulative trauma periods, separated by periods of temporary disability, where there is one employer and several carriers. When faced with that issue, read carefully the case of Western Growers Ins. Co. v. W.C.A.B. (1993) 16 Cal.App.4th 227.

In most cumulative trauma contribution cases, one of the major questions the parties face is, "What is the proper date of injury?" The date of injury will determine which carriers or employers should be joined and when the statute of limitation starts to run. Labor Code section 5412 defines date of injury in cumulative trauma and occupational disease cases as follows:

...that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment.

This is an area where diligent discovery can be very important. Cases have held that complaints and treatment alone will normally not constitute a disability when establishing the beginning date of injury. Such cases require disability (temporary or permanent) for which work restrictions may not be enough. (See State Compensation Insurance Fund v. W.C.A.B. (Rodarte) 119 Cal.App.4th 998.) Moreover, that disability must intersect with knowledge on the part of the worker of the work-relatedness of their complaints.

Also, remember to file your Petition for Contribution within one year of the award of benefits. This may mean not only the final award of permanent disability and future medical treatment, but, as well, it can be an award for temporary disability or reimbursement for surgery or other self-procured treatment. The joinder of a carrier or employer does not satisfy the requirements of Labor Code 5500.5(e) to "institute proceedings before the appeals board." Rather, a Petition for Contribution or a Declaration of Readiness to Proceed must be filed. (See General Accidentlnsurance Company v. W.C.A.B. (1996) 47 Cal.App.4th 1141, at p. 1149; see also California Code of Regulations, title 8, section 10450.)

With that brief background information, here are my Ten Tips for a More Productive Contribution Arbitration.

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1. Join the Other Carriers or Employers in the Last Year of Injurious Exposure As Early As Possible (Labor Code Section 5500.5)

To discover the other responsible defendants in the last year of injurious exposure, look to both medical and...