A Guide to Representing an Applicant with an Uninsured Employers Benefits Trust Fund Case & Joining UEBTF as a Party

By:  Evan S. Kantz, Esq. and George J. Savin Jr., Esq. Savin & Bursk, Granada Hills, CA

California Workers’ Compensation Claims Filed Against Uninsured Employers & the Uninsured Employers Benefits Trust Fund (UEBTF); Handled by Office of the Director Legal Unit (OD Legal) – A Guide to Representing an Applicant with a UEBTF Case & Joinder of the UEBTF as a Party to the Case

Navigating an Applicant’s claim through the California workers’ compensation system when the Employer was uninsured for workers’ compensation at the time of injury can be tricky. The following is a guide with some of the most pertinent steps we utilize when representing an Applicant with a UEBTF workers’ compensation claim/case.

Proper handling of an Applicant’s Uninsured Employers Benefits Trust Fund (UEBTF) claim begins at the time of intake. At the onset we:

1. Complete an Electronic Adjudication Management System (EAMS) search to determine if the Applicant has any prior workers’ compensation claim(s); it is recommended to search both by Name, Date of Birth, City, and Zip code and also by Social Security Number, if applicable. (This can be useful in all Applicant cases, not only UEBTF cases).

If you choose to handle workers’ compensation applicant cases, it is very important that you run a search through EAMS to confirm the potential applicant is providing you with truthful information and to make sure that your potential client’s information has not been fraudulently used in the filing of a previous workers’ compensation case.

2. Establish if the Applicant has met with any other Applicant Attorneys and/or where his/her information regarding the California workers’ compensation system is coming from, if applicable.

This is a very important step because you need to know what information your potential client has coming into the intake process and the source of the information they obtained. We have often found that potential applicants come into an initial appointment carrying misconceptions about the California workers’ compensation system. It is your job to clear those up.

3. Obtain general contact & employment information for the employer (uninsured employer’s identifying information, residence address, business address, phone numbers, license plate number(s), business card(s), advertisements, websites, etc.)

What information can your potential client provide you about the uninsured employer? Everything! All information can be considered relevant at this point! Remember, you are dealing with an employer that is violating the law by operating a business in California without workers’ compensation insurance. Try to leave no stone unturned. You will thank yourself later, especially if UEBTF denies the applicant was employed by the uninsured employer. It is similar to a game of Cat v. Mouse. The uninsured employer is trying to hide and you, as the Injured Workers’ advocate, are trying to track it down to serve it with a lawsuit.

4. Accept Representation only if doing so would be mutually beneficial for both you and the Applicant, even though his/her Employer had no insurance.

Do not handle a UEBTF case if you do not possess the necessary legal knowledge to prosecute the case properly or you do not intend to learn the proper procedures. It can be very beneficial if you obtain access to an attorney that does handle UEBTF cases that can assist you through the process. UEBTF cases are not the same as typical, run-of-the-mill, applicant workers’ compensation cases. UEBTF cases require more steps to secure benefits for the Applicant and without following them, an Order Joining UEBTF will not issue and ultimately you will not be able to secure workers’ compensation benefits for the applicant.

5. Copy all documents the potential Applicant has brought into the appointment or request that the potential Applicant bring in such to the appointment.

Any and all documentation that the applicant has that is relevant to the claim should be copied on day one.  Even if the applicant does not believe it is an important document, you never know if that one document is the reason you are able to move the case forward.

6. Determine how the Applicant was paid. (Check/cash/etc.).

This is pertinent to confirm employment. Remember, it is not what you know, it is what you can prove. If you have an uninsured employer that ultimately denies employment of the applicant or testifies to that fact at a deposition or trial, you want to be able to impeach that testimony. Attempt to use hard evidence that the uninsured employer in fact did employ the applicant at the time of the applicant’s injury and that the uninsured employer maintained control of the Applicant on the day (or during the date range) he/she got injured.  Evidence of pay to the applicant from the uninsured employer can be very beneficial for this purpose.

7. Were there any witnesses to the specific injury/cumulative trauma?

Witnesses can provide some of the strongest evidence. The more witnesses you have testifying in support of your client, will bolster the strength of your case, but the case becomes more of a he said, she said situation vs. a case with objective evidence that corroborates your applicant’s side of the story. Repetition breeds reliability and a judge hearing the same story from multiple different people, including your applicant, swings the pendulum in your client’s favor.

8. Was the Applicant required to wear a work shirt, outfit or uniform or does he/she have any article of clothing that identifies the uninsured employer?

If the applicant still has possession of any work attire, this can be very helpful in proving employment. If the applicant has possession of any paraphernalia (i.e. business card) that is branded with the uninsured employer’s mark, logo, emblem, letterhead, etc., this can help identify the uninsured employer for UEBTF and the Workers’ Compensation Judge.

9. Obtain date of injury information & any medical treatment sought thus far.

Determine if the applicant’s injury is a specific injury or a cumulative trauma injury. Subpoena the uninsured employer’s personnel file which it may maintain for the injured worker. Subpoena your injured worker’s wage statement, payroll records, time cards, schedule, etc. from the uninsured employer. All this information can help prove the injured worker was working on the day or dates of injury. Subpoena any and all medical facilities and doctor offices where your applicant has obtained medical treatment. This information will be crucial to provide to any treating physicians and medical/legal evaluators in the case. Again, repetition breeds reliability and if your applicant told every doctor the same story and sought treatment for all the same injured body parts with each of those doctors, it speaks volumes to your applicant’s credibility and establishes the validity of his/her injuries.

10.  File an Application & Claim Form with the Workers’ Compensation Appeals Board (WCAB).

If you handle California workers’ compensation matters, then you file an Application for Adjudication and Claim Form as usual with a proof of service. If you do not handle California workers’ compensation matters, it is likely appropriate for you to refer the case to counsel that has experience handling uninsured employer workers’ compensation matters or again make sure you have a resource of an attorney that does handle UEBTF cases that you can seek guidance from if you get stuck. There is more than one way to skin a cat; find out what works for you and run with it.  Please note:  It is essential that you name the uninsured employer exactly the same way as it was conducting business, punctuation too!

11. Attempt to obtain insurance coverage information – Send the Workers’ Compensation Insurance Rating Bureau of California (WCIRB) a Coverage Research Service Request Form (and determine that the Employer did not have workers’ compensation insurance on the date or dates of injury).
    1. Fill out the online request form which can be found at:
       http://www.wcirb.com/coverage-research-request.
    2. Obtain responding correspondence from the WCIRB confirming the uninsured employer did not have insurance at the time of the applicant’s injury.
    3. If the WCIRB indicates the Employer had insurance, abort your plan to work on joining UEBTF and handle the claim as you would any other insured workers’ compensation claim.

With a response from the WCIRB that the uninsured employer did in fact not have workers’ compensation insurance on the day or dates of your applicant’s injuries, you can use this response as an exhibit in your Petition to Join UEBTF.

12. Determine the Entity Type of the Uninsured Employer (i.e. Corporation – Statement of Domestic Stock Corporation; Partnership; Sole Proprietorship, etc.).

Depending on which type of business entity the Uninsured Employer is will determine the next step. If the entity is a Corporation, the Applicant’s Attorney must attempt to personally serve the Agent for Service of Process. If personal service is completed, you can use this proof of service as an exhibit in your Petition to Join UEBTF. If personal service is attempted three times and service cannot be completed, you must then Petition and obtain an Order Allowing Personal Service on the Secretary of State. If personal service is then completed upon the Secretary of State, use this proof of service as an exhibit in your Petition to Join UEBTF. If the uninsured employer is a partnership or sole proprietorship, you must personally serve a partner or the owner of the entity. Make sure to hire a good attorney service that can get the correct person served and properly provide you with a proof of service.

13. Locate the Uninsured Employer.

• Internet Search (i.e. Google).
• Confirm the county where the uninsured employer’s business is located.
• If it is a Corporation or Limited Liability Corporation, complete a business search on the California Secretary of State website at https://businesssearch.sos.ca.gov.
• Search on the Registrar-Recorder/County Clerk (Fictitious Business Search) website at: https://www.lavote.net/home/county-clerk/fictitious-business-names/fictitious-business-name-statement-request.
• If the Employer is a Contractor, search on the Contractors State License Board website at:https://www.cslb.ca.gov/OnlineServices/CheckLicenseII/CheckLicense.aspx.
• If you are dealing with a Homeowner, pull copies of deeds and obtain a property profile search which can provide additional information on the actual owners of the property. You may find there is more than one owner, in which case an amendment to the Application may be in order.
  • Send a letter of representation to the Homeowner.
  • Complete a property profile and prepare a Special Notice of Lawsuit and serve the homeowner.
  • If still no response, set the homeowner’s deposition (many times homeowners are in denial when they hire someone to do a job at their residence and an employee of the person/entity they hired gets injured on their property and then asserts a claim against the homeowner).
• If you are dealing with some other entity, get creative, channel your internal Sherlock Holmes and get to investigating.

Finding the uninsured employer is imperative. You must give it notice of all documents. It is its due process right. Likely, if it has workers’ compensation insurance and it is/are hiding that fact, the truth will ultimately come out or if it does not have worker’ compensation insurance, you should proceed with the above steps. Sometimes a skip-trace or a background check can help, but please be prepared to do a little digging. Uninsured employers do not typically want to be found because they are violating the law.

14. Serve a Special Notice of Lawsuit, the Application, and the Claim Form on the Uninsured Employer & the UEBTF.

This step is necessary, just as it would be with an insured workers’ compensation claim. You need to give the uninsured employer and all interested parties of record notice of the pleadings and the claim for workers’ compensation benefits being filed against it. However, with the UEBTF, you need to also serve a WCAB Special Notice of Lawsuit (pursuant to Labor Code §3715 and Code of Civil Procedure §§ 412.20 and 412.30). This document gives notice to the uninsured employer that a workers’ compensation case has been filed against it. This form can be found at https://www.dir.ca.gov/dwc/FORMS/snol.pdf.

15. Complete a Petition to Join UEBTF & Obtain the Order Joining UEBTF.

Legally, once good cause appearing has been made, you can petition the WCAB to issue an Order Joining UEBTF. Once completing this step, it may be necessary to contact UEBTF and try to get the UEBTF claims adjuster to step into the shoes of the Employer. Remember, UEBTF is not an insurance company and you cannot treat it as such. UEBTF is used by OD Legal and the State of California to pay workers’ compensation claims when illegally uninsured employers fail to pay workers’ compensation benefits ordered or awarded by the WCAB to their injured employees.^[1]

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[1] How to reach the authors:  Law Offices of Savin & Bursk (Granada Hills office)
www.savinbursklaw.com, Phone: (818) 368-8646
Evan S. Kantz, Esq. – eskantz@savinbursklaw.com
George J. Savin Jr., Esq. – gsavin@savinbursklaw.com