A. "Council"
means the Hoopa Valley Tribal Council as established by the Hoopa
Valley Tribal Constitution and Bylaws.
B. "Employee"
means a person, other than an independent contractor, employed by
or in the service of the Hoopa Valley Tribe or one of its subordinate
entities under any contract of hire, express or implied, oral or written,
where the Hoopa Valley Tribe has the power or right to control and
direct such individual in return for which such individual receives
a salary or wages. For purposes of this Ordinance, "Employee"
shall also include Council members, commission members and committee
members.
C. "Employer"
means the Hoopa Valley Tribe, its departments or one of its subordinate
entities.
D. "Tribal
Entity" means the Hoopa Valley Tribe itself, its departments,
programs, entities and subdivisions operating under a governing document
established pursuant to authority contained in the Hoopa Valley Tribal
Constitution and Bylaws.
E. "Third
Party Administrator" shall mean the agency that is responsible
for managing the Workers' Compensation Program of the Hoopa Valley
Tribe. Responsibilities include, but are not limited to, determining
the compensability of claims, making payments to injured workers,
medical providers and others; managing a trust account for the purpose
of dispensing the Hoopa Valley Tribe's workers' compensation liabilities;
and, making reports to the Hoopa Valley Tribe regarding their program
and individual claims.
F. "Work
injury" shall include any injury or disease arising out and
in the course of the employment, including injuries arising out of
the employment, including injuries to artificial members, dentures,
hearing aids, eyeglasses, and medical braces all types; provided,
however, that eyeglasses and hearing aids will not be replaced, repaired,
or otherwise compensated for, unless injury to them is incident to
an injury causing disability.
Work
injuries under this section shall be either:
1.
"Specific" occurring as a result of one incident or
exposure which causes disability or need for medical treatment;
or
2.
"Cumulative" occurring as a result of repetitive mentally
or physically traumatic activities extending over a period of
time, the combined effect of which causes any disability or need
for medical treatment. The date of a cumulative trauma injury
is the date upon which the Employee first suffered disability
therefrom and knew or in the exercise of reasonable diligence
should have known, that such disability was caused by his present
or prior employment.
G. "Occupational
Disease" shall mean any disease resulting from exposure during
employment to conditions or substances detrimental to the claimant's
health which impairment of health is not caused by accident but by
exposure to conditions incidental to and arising out or in the course
of the claimant's employment with the Hoopa Valley Tribe.
H. "Claimant"
for the purposes of this ordinance shall mean any person who is employed
by the Hoopa Valley Tribe, except for independent contractors, who
suffers an injury either specific or cumulative, arising from that
employment or occurring in the course of that employment.
I. "Environmental
Tobacco" shall mean the by-products of the ingestion of any
tobacco product that is exhaled, ejected, or transmitted through the
medium of ambient air or which is brought into physical contact by
any means.
J. "Written
Decision" shall mean the following:
1.
That any finding, decision, award, arbitration result, response
to Petition, or response to Appeal shall be reduced to written form
by the Arbitrator / Referee, Judge of the Hoopa Valley Tribal Court,
or any persons appointed by such Judge or Tribal Court for the purposes
of hearing adjudicating, litigating or deciding any issue before
the Hoopa Valley Tribal Court or its appointed Arbitrators; or
2.
The finding(s) and decision(s) of the Third Party Administrator
to accept in full or in part or deny in full or in part any claim
submitted by a claimant regarding a work injury.
"Days"shall
mean calendar days unless otherwise expressly provided.
A. The
Tribe's Third Party Administrator shall receive all claims and make
a written decision on all claims. Written notice of the determination
of the Third Party Administrator shall be forwarded to the claimant
and the Hoopa Valley Tribe within 90 calendar days of the date the
claim was filed.
1.
The written decision shall be delivered via U.S. Mail to the last
known address of the Claimant and the Hoopa Valley Tribe's Insurance
Department and shall contain a proof of service reflecting the date
the written decision was mailed to the claimant and the Hoopa Valley
Tribe's Insurance Department.
B. REQUEST
FOR HEARING
1.
Jurisdiction The Hoopa Valley Tribal Court shall have exclusive
jurisdiction of all claims for workers' compensation benefits filed
by Employees of a tribal entity.
2.
Initiation of Claim
A party
may initiate a claim with the Hoopa Valley Tribal Court by the filing
of any of the following:
A.
Application For Adjudication;
B.
Lien;
C.
Stipulation with Request For Award; or
D.
Compromise and Release.
3.
Form Initiating Claims
There
shall be only forms approved by the Hoopa Valley Tribe and / or
the Third Party Administrator.
4.
All requests for hearing shall be made within thirty (30) days of
the date of service of the written notice of the determination of
the Third Party Administrator described in section 5(A), above.
5.
Any and all requests for hearing due to a disputed claims adjudication
by the Third Party Administrator shall be made in writing in conformance
with the rules of the Hoopa Valley Tribal Court.
6.
All requests for hearing must be served upon all named parties within
30 days of filing the request for hearing with the Hoopa Valley
Tribal Court.
7.
Proof of service of the request for hearing shall be filed with
the Hoopa Valley Tribal Court within five (5) calendar days of actual
service upon all interested parties.
The
status conference at the Hoopa Valley Tribal Court shall commence
no sooner than 30 days and no later than 90 days after return of
the proof of service of the request for hearing.
The
Hoopa Valley Tribal Court is hereby authorized to send all disputed
workers' compensation matters to arbitration before an experienced
workers' compensation practitioner.
8.
[Reserved]
9.
[Reserved]
10.
The Arbitrator as appointed by the Chief Judge of the Hoopa Valley
Tribal Court shall set the matter for hearing no sooner than 30
days and no later than 120 days of the Arbitrator's appointment
by order of the Hoopa Valley Tribal Court.
11.
These time periods may be adjusted upon the mutual written agreement
of all interested parties and order of the Hoopa Valley Tribal Court.
C. STATUS
CONFERENCE
1.
The Hoopa Valley Tribal Court shall hold a status conference no
sooner than 30 days and no later than 90 days after return of the
proof of service of the request for hearing.
2.
The Arbitrator shall set a date for any hearing(s) to be conducted
by the Arbitrator in accordance with this Ordinance.
D. SELECTION
OF ARBITRATOR
1.
The Hoopa Valley Tribal Court shall maintain a list of at least
seven (7) potential Arbitrators that are admitted to practice law
in the State of California and / or the Hoopa Valley Tribal Court
Bar and who practice in the area of workers' compensation law.
2.
Upon the Hoopa Valley Tribal Court's setting of a final completion
date for arbitration, the Court shall send a list of seven potential
Arbitrators to the parties for their review. Upon receipt of the
list of potential Arbitrators, the parties shall each be entitled
to strike three names from the list. Each party shall inform the
Court of the names stricken within ten (10) calendar days of the
date of service of the initial list of potential Arbitrators. The
Court shall then select the Arbitrator from the list of remaining
eligible Arbitrators.
3.
The parties may not disqualify or recuse the Arbitrator selected
by the Hoopa Valley Tribal Court except as described in subsection
D(2), above.
E. BURDEN
OF PROOF
1.
The Employee shall have the initial burden of proof by a preponderance
of the evidence.
2.
The burden of proof shall rest upon the Employee, or Employee's
dependents in cases of death, to prove:
a. that the injury complained of was a result of an accident or
occupational disease;
b.
that the injury arose out of claimant's employment with the Hoopa
Valley Tribe;
c.
that the injury arose while in the course of claimant's employment;
and
d.
the nature and extent of disability.
F. WITNESSES
1.
All parties shall file and serve a witness list showing the names
and addresses of all witnesses each party intends to call in the
matter 10 days prior to the initial scheduled date for arbitration.
2.
Written statements of witnesses shall be admitted into evidence
only when a witness cannot appear in person and only when all parties
so stipulate.
3.
The Hoopa Valley Tribal Court may issue subpoenas to compel a witness'
attendance at a hearing consistent with the Hoopa Valley Tribal
Code.
G. DOCUMENTS
All
parties shall prepare a joint exhibit list of relevant documents each
party wishes to introduce at the time of hearing in this matter and
file same 10 days prior to the initial scheduled date for arbitration.
H. MOTIONS
All
procedural motions shall be filed in the Hoopa Valley Tribal Court,
served upon all parties and the Arbitrator and heard by the Arbitrator
no later than 10 days prior to the initial scheduled date for hearing
by the Arbitrator.
I. CONTINUANCES
All
requests for continuance shall be filed in the Hoopa Valley Tribal
Court, served upon all parties and the Arbitrator and heard by the
Arbitrator no later than 10 days prior to the initial scheduled date
for hearing by the Arbitrator.
J. ARBITRATOR
1.
An attorney admitted to practice in the State of California and
/ or the Hoopa Valley Tribal Court Bar and experienced in Workers'
Compensation practice shall serve as the Arbitrator and shall control
the proceedings. The Arbitrator shall take whatever action necessary
to ensure an equitable, orderly and expeditious hearing. Parties
shall abide by the Arbitrator's rulings.
2.
The Arbitrator shall have the authority to:
a.
Administer oaths or affirmations;
b.
Regulate the course of the hearing;
c.
Rule on offers of proof and the admissibility of documents;
d.
Limit the number of witnesses when testimony would be unduly repetitious;
e.
Exclude any person from the hearing for contemptuous conduct or
misbehavior that obstructs the hearing.
3.
The Arbitrator shall be paid at an hourly rate of $125 for research,
drafting and bench time. The Arbitrator shall be paid at an hourly
rate of $50 per hour for travel time to and from Hoopa, California.
All expenses related to the Arbitrator's services shall be covered
by the Arbitrator.
K. PARTIES
AND REPRESENTATIVES
1.
All parties are entitled to be present for the entire hearing.
2.
Any party may be represented by an attorney, a spokesperson admitted
to practice before the Hoopa Valley Tribal Court or may represent
themselves, in propria persona.
L. REPORTING
1.
All hearings shall be reported by a licensed stenographic reporter,
i.e., Certified Shorthand Reporter.
2.
Payment for the Certified Shorthand Reporter shall be borne by the
Hoopa Valley Tribe. However, any party requesting a transcript of
the proceedings shall pay for the requested transcript(s).
3.
The Hoopa Valley Tribe shall be responsible for retaining the Certified
Shorthand Reporter to provide services at the time of the hearing.
M. EVIDENCE
1.
The Hoopa Valley Tribal Rules of Evidence as established in Title
2 of the Hoopa Valley Tribal Code shall apply in workers' compensation
proceedings. Should a question be left unanswered by said Rules,
the Federal Rules of Evidence shall be used as a guideline in workers'
compensation proceedings.
N. AUDIENCE
1.
All hearings involving workers' compensation disputes shall be held
in executive session.
O. ORDER
OF PROOF
1.
The Employee has the burden of proof and shall present its case
first.
2.
Opening Statements. Parties shall be afforded the opportunity to
present opening statements to explain what they intend to prove
during the hearing. The Employer may make their opening statement
either immediately after the other party's opening statement or
immediately before their own presentation of evidence.
3.
Presentation of Evidence. Parties may present evidence through the
introduction of documents and the testimony of witnesses. Both parties
may examine their own witnesses and cross-examine the witnesses
of the other parties. The Arbitrator may examine witnesses at any
point in their testimony.
4.
Closing statements. Parties shall be afforded the opportunity to
present closing statements to explain how the evidence supports
what they intended to prove.
P. DECISION
1.
The Arbitrator's decision shall be in writing and served upon the
parties no later than 30 calendar days after the close of the hearing.
2.
The written decision shall include:
a.
The procedural and substantive issues presented;
b.
Findings of fact and the basis for same;
c.
Conclusions of law and the basis for same; and
d.
The order.
3.
The Arbitrator's decision shall be binding, however, such decision
is subject to judicial review in the Hoopa Valley Tribal Court and
the Hoopa Valley Tribal Court of Appeals.
Q. APPELLATE
REVIEW
1.
Any party to the underlying action may appeal the Arbitrator's decision
to the Hoopa Valley Tribal Court.
2.
Any appeal of the Arbitrator's decision shall be filed in writing
with the Clerk of the Hoopa Valley Tribal Court no later than 30
calendar days from the date of service of the decision of the Arbitrator.
3.
The fee for filing a notice of appeal in the Hoopa Valley Tribal
Court shall be equal to the fee to appeal a decision of the Tribal
Employment Rights Commission. The fee for filing an appeal in the
Hoopa Valley Tribal Court of Appeal shall be consistent with the
Hoopa Valley Tribal Code.
4.
All appellate proceedings in the Hoopa Valley Tribal Court shall
be governed by the rules and procedures regarding appeals provided
in the Hoopa Valley Tribal Code and Rules of Court.
5.
The Hoopa Valley Tribal Court shall utilize a substantial evidence
standard in appellate review of the factual determinations by the
Arbitrator and a de novo standard in appellate review of legal determinations
by the Arbitrator.
6.
The Hoopa Valley Tribal Court shall set a briefing schedule, receive
and review briefs, and conduct oral argument, if necessary, within
90 days of the filing of the Notice of Appeal.
a.
Appellant shall file an opening brief within the time period set
by the Hoopa Valley Tribal Court;
b.
Respondent shall file a responsive brief within the time period
set by the Hoopa Valley Tribal Court;
c.
No reply to the Respondent's responsive brief shall be accepted.
7.
Any party to the underlying action may appeal the Hoopa Valley Tribal
Court's decision to the Hoopa Valley Tribal Court of Appeals consistent
with the Hoopa Valley Tribal Code and after paying any applicable
filing fees.
8.
Any appeal of the Hoopa Valley Tribal Court's decision shall be
filed in writing with the Clerk of the Hoopa Valley Tribal Court
no later than 30 calendar days from the date of service of the decision
of the Hoopa Valley Tribal Court. The Clerk of the Hoopa Valley
Tribal Court shall immediately forward the Notice of Appeal to the
Hoopa Valley Tribal Court of Appeals for further action.
9.
The Hoopa Valley Tribal Court of Appeal shall set a briefing schedule,
receive and review briefs, and conduct oral argument, if necessary,
within 90 days of the filing of the Notice of Appeal.
a. Appellant shall file an opening brief within the time period
set by the Hoopa Valley Tribal Court of Appeal;
b.
Respondent shall file a responsive brief within the time period
set by the Hoopa Valley Tribal Court of Appeal;
c.
No reply to the Respondent's responsive brief shall be accepted.
R. LAW
TO APPLY
The
Hoopa Valley Tribal Court and Hoopa Valley Tribal Court of Appeal
shall follow the Hoopa Valley Tribal Code to determine which law to
apply. California case law shall not be followed, but may be used
for guidance. Any use of California statutory law for guidance shall
be liberally construed in favor of the Employer.
S. NOTICE
TO STATE
Any
applicant that received disability benefits from the State of California
shall immediately notify the State of California of the institution
of an action seeking additional benefits in the Hoopa Valley Tribal
Court.
T. APPROVAL
OF SETTLEMENT
1.
Any settlement of an action instituted in the Hoopa Valley Tribal
Court shall be approved in writing by a Judge of the Hoopa Valley
Tribal Court.
2.
Settlement of Claims
The
Hoopa Valley Tribal Court shall have exclusive jurisdiction to approve
settlements reached between the parties and submitted to the Hoopa
Valley Tribal Court in the form of Stipulations for Award or Compromise
and Release.
U. EFFECT
OF FILING AN ACTION
1.
During the pendency of the action, Claimant shall continue to receive
all benefits approved by the Third Party Administrator in its original
written decision, but shall not receive any new benefits claimed
before the Hoopa Valley Tribal Court.
2.
Payments made to claimant during the pendency of the action shall
not be recouped or recovered by the Third Party Administrator or
the Hoopa Valley Tribe, except in cases of fraud.
V. ATTORNEY'S
FEES
1.
No award of attorney's fees shall be made to either the claimant
or the Hoopa Valley Tribe due to success in a proceeding before
the Hoopa Valley Tribal Court or the Hoopa Valley Tribal Court of
Appeals.
2.
Each party is responsible for their respective attorneys' fees including,
but not limited to, representation at depositions.
W. CONTINGENCY
FEE LIMIT
A claimant
may be represented by any spokesperson or attorney admitted to practice
before the Hoopa Valley Tribal Bar. The fees paid to a spokesperson
or attorney shall be limited to twenty five percent (25%) of the permanent
disability stipulated to or awarded. However, nothing herein shall
prohibit payment of an hourly fee to an attorney or spokesperson on
a services provided basis.
X. SUBROGATION
The
claim of an Employee for compensation does not affect his or her claim
or right of action for all damages proximately resulting from the
injury or death against any person other than the Employer. Any Employer
who pays, or becomes obligated to pay compensation, or who pays, or
becomes obligated to pay salary in lieu of compensation may likewise
make a claim or bring an action against the third person.
If either
the Employee or the Employer brings an action against such third person,
he shall forthwith give to the other a copy of the complaint by personal
service or certified mail. Proof of such service shall be filed in
such action. If either the Employer or Employee brings the action,
the other may, at anytime before trial on the facts, join as party
plaintiff or shall consolidate his action, if brought independently.
If the
action is prosecuted by the Employer alone, evidence of any amount
which the Employer has paid or become obligated to pay by reason of
the injury or death of the Employee is admissible, and such expenditures
or liability shall be considered as proximately resulting from such
injury or death in addition to any other items of damage proximately
resulting therefrom.
If the
Employee joins in or prosecutes such action, either the evidence of
the amount of disability indemnity or death benefit paid or to be
paid by the Employer or the evidence of loss of earning capacity by
the Employee shall be admissible, but not both. Proof of all other
items of damage to either the Employer or Employee proximately resulting
from such injury or death is admissible and is part of the damages.
In the
event of suit against such third party:
If the
action is prosecuted by the Employer alone, the court shall first
order paid from any judgment for damages recovered the reasonable
litigation expenses incurred in preparation and prosecution of such
action, together with a reasonable attorney's fee which shall be based
solely upon the services rendered by the Employer's attorney in effecting
recovery both for the benefit of the Employer and the Employee. After
the payment of such expenses and attorney's fees, the court shall
apply out of the amount of such judgment an amount sufficient to reimburse
the Employer for the amount of his expenditure for compensation together
with any amounts to which he may be entitled as special damages and
shall order any excess paid to the injured Employee or other person
entitled thereto.
If the
action is prosecuted by the Employee alone, the court shall first
order paid from any judgment for damages recovered the reasonable
litigation expenses incurred in preparation and prosecution of such
action, together with a reasonable attorney's fee which shall be based
solely upon the services rendered by the Employee's attorney in effecting
recovery both for the benefit of the Employee and the Employer. After
the payment of such expenses and attorney's fee the court shall, on
application of the Employer, allow as a first lien against the amount
of such judgment for damages, the amount of the Employer's expenditure
for compensation together with any amounts to which he may be entitled
as special damages.
If the
action is prosecuted both by the Employee and the Employer, in a single
action or in consolidated actions, and they are represented by the
same agreed attorney or by separate attorneys, the court shall first
order paid from any judgment for damages recovered, the reasonable
litigation expenses incurred in preparation and prosecution of such
action or actions, together with reasonable attorneys' fees based
solely on the services rendered for the benefit of both parties where
they are represented by the same attorney, and where they are represented
by separate attorneys, based solely upon the service rendered in each
instance by the attorney in effecting recovery for the benefit of
the party represented. After the payment of such expenses and attorneys'
fees the court shall apply out of the amount of such judgment for
damages an amount sufficient to reimburse the Employer for the amount
of his expenditures for compensation together with any other amounts
to which he may be entitled as special damages.
The amount
of reasonable litigation expenses and the amount of attorneys' fees
under subdivisions (a), (b), and (c) of this section shall be fixed
by the court. Where separate attorneys represent the Employer and
Employee they may propose to the court, for its consideration and
determination, the amount and division of such expenses and fees.
The court
shall, upon further application at any time before the judgment is
satisfied, allow as a further lien the amount of any expenditures
of the Employer for compensation subsequent to the original order.
After
payment of litigation expenses and attorneys' fees fixed by the court
pursuant to this Section and payment of the Employer's lien, the Employer
shall be relieved from the obligation to pay further compensation
to or on behalf of the Employee under this division up to the entire
amount of the balance of the judgment, if satisfied, without any deduction.
No satisfaction of such judgment in whole or in part, shall be valid
without giving the Employer notice and a reasonable opportunity to
perfect and satisfy his lien.
The Arbitrator
is empowered to and shall allow, as a credit to the Employer to be
applied against his liability for compensation, such amount of any
recovery by the Employee for his injury, either by settlement or after
judgment, as has not theretofore been applied to the payment of expenses
or attorneys' fees, pursuant to the provisions of this Ordinance,
or has not been applied to reimburse the Employer.
Any Employer
entitled to and who has been allowed and has perfected a lien upon
the judgment or award in favor of an Employee against any third party
for damages occasioned to the same Employer by payment of compensation,
expenses of medical treatment, and any other charges under this act,
may enforce payment of the lien against the third party, or, in case
the damages recovered by the Employee have been paid to the Employee,
against the Employee to the extent of the lien, in the manner provided
for enforcement of money judgments generally.
If an
action as provided in this chapter prosecuted by the Employee, the
Employer, or both jointly against the third person results in judgment
against such third person, or settlement by such third person, the
Employer shall have no liability to reimburse or hold such third person
harmless on such judgment or settlement in absence of a written agreement
so to do executed prior to the injury.
Any judgment
or settlement of an action as provided for in this Ordinance is, upon
notice to the court, subject to the same lien claims of the Employment
Development Department and shall be allowed by the court as it determines
necessary to avoid a duplication of payment as compensation to the
Employee for lost earnings.
Y. THIRD
PARTY CREDIT / COLLATERAL SOURCE DEDUCTION
The
Arbitrator shall off-set any monies received by the Employee during
the relevant period, from other employment, unemployment compensation,
disability benefits, welfare or otherwise, including any monies received
as described in Section 5(X) of this Ordinance, as a credit to the
Employer to be applied against his liability for compensation.
Z. INDEPENDENT
MEDICAL EXAMINATION
Whenever
the right to compensation under this division exists in favor of an
Employee, he shall, upon the written request of his Employer, submit
at reasonable intervals to examination by a practicing physician,
provided and paid for by the Employer, and shall likewise submit to
examination at reasonable intervals by any physician selected by the
Arbitrator.
The request
or order for the medical examination shall fix a time and place therefor,
due consideration being given to the convenience of the Employee and
his physical condition and ability to attend at the time and place
fixed.
The Employee
may employ at his own expense a physician, to be present at any examination
required by his Employer.
So long
as the Employee, after written request of the Employer, fails or refuses
to submit to such examination or in anyway obstructs it, his right
to begin or maintain any proceeding for the collection of compensation
shall be suspended.
If the
Employee fails or refuses to submit to examination after direction
by the Arbitrator, or in anyway obstructs the examination, his right
to the disability payments that accrue during the period of such failure,
refusal or obstruction, shall be barred.
Any physician
who makes or is present at any such examination may be required to
report or testify as to the results thereof.
Any party
who subpoenas medical records in any proceeding under this division
shall concurrent with service of the subpoena upon the person who
has possession of the medical records, send a copy of the subpoena
to all parties of record in the proceeding.
No compensation
is payable in case of the death or disability of an Employee when
his death is caused, or when and so far as his disability is caused,
continued, or aggravated, by an unreasonable refusal to submit to
medical treatment, or to any surgical treatment, if the risk of the
treatment is, in the opinion of the Arbitrator, based upon expert
medical or surgical advice, inconsiderable in view of the seriousness
of the injury.