WORKERS' COMPENSATION ORDINANCE

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WORKERS' COMPENSATION ORDINANCE

Hoopa Valley Tribe

Hoopa Valley Indian Reservation

TITLE 46

ORDINANCE NO: 2-97

DATE APPROVED: November 6, 1997 as amended July 20, 2000

SUBJECT: Workers! Compensation Ordinance of the Hoopa Valley Tribe

WHEREAS: the Hoopa Valley Tribal Council is the governing body of the Hoopa Valley Indian

Tribe of California pursuant to authority in Article V, Section 1 of the Hoopa Valley Tribal

Constitution and Bylaws as approved by the Commissioner of Indian Affairs on August 18, 1972

and subsequently confirmed and ratified by the United States Congress on October 31, 1988 (25

U.S.C. § 13001 et seq.);

WHEREAS: The Hoopa Valley Tribal Council on March 28, 1994 approved the Protected Self-

Insurance proposal submitted by Arthur J. Gallagher and Company for the Hoopa Valley Tribal

Lands which consisted of Property, Casualty and Workers! Compensation insurance.

WHEREAS: The Hoopa Valley Tribal Council approved the new insurance plan effective April

1, 1994.

WHEREAS: The Hoopa Valley Tribal Council is authorized to promulgate and enforce

ordinances governing the conduct of members and non-members of the Hoopa Valley Indian

Tribe within the exterior boundaries of the Hoopa Valley Indian Reservation pursuant to Article

IX of the Hoopa Valley Tribal Constitution and Bylaws, and

WHEREAS: The Hoopa Valley Tribal Council is authorized to safeguard and promote the peace,

safety, morals and general welfare of the Hoopa Valley Indians pursuant to Article IX of the

Hoopa Valley Tribal Constitution and Bylaws; and

WHEREAS: The Hoopa Valley Tribal Council deems a Workers' Compensation Ordinance is

necessary for safeguard and promotion of peace, safety, morals and the general welfare of the

Hoopa Valley Tribe as well as individual members of the Hoopa Valley Tribe and Employees of

the Hoopa Valley Tribe.

NOW; THEREFORE BE IT RESOLVED, that the following Ordinance governing workers’

compensation administration by the Hoopa Valley Indian Tribe is hereby adopted and shall be

effective upon approval by the Hoopa Valley Tribal Council.

NOW, THEREFORE, BE IT FURTHER RESOLVED that this Ordinance expressly revokes all

versions of Resolution 95-116 and such Resolutions shall no longer be of any force or effect.

Amended July 20, 2000 Page |

NOW, THEREFORE, BE IT FURTHER RESOLVED that this Ordinance is to have retroactive

effect to October 12, 1995 and shall apply to all worker's compensation cases pending as of the

date of the adoption of this Ordinance.

§1 PURPOSE

The purpose of this Ordinance is to establish a systematic and uniform procedure for

administration of workers' compensation benefits to Employees of the Hoopa Valley Tribe or a

tribal entity. This Ordinance shiall also establish a systematic and uniform procedure to

administer and define the Hoopa Valley Tribal Council's self-funded Workers’ Compensation

program, under the direction of Tribal Risk Management, for meeting and resolving its industrial

injury liabilities, risk assessment, prevention of abuse and fraud, cost control, medical and

vocational rehabilitation of Tribal Employees and provision of a program that is equitable to both

Tribal Employees and the Tribe.

§2 SCOPE

This policy applies to all Employees of the Hoopa Valley Tribe, its departments and its

subordinate entities and is the exclusive method for compensation liability against the Hoopa

Valley Tribe for Employee injury sustained in the course of employment including emotional

distress arising from the employment relationship including, but not limited to, discharge and

work-related disability discrimination. 7

§3 DEFINITIONS

A. "Council't 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

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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 erther:

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 inthe

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.

1. "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

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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.

POLICY

It is the policy of the Hoopa Valley Tribal Council:

A. To self-fund the Tribe's Workers' Compensation liabilities and to administer the

program in accordance with accepted Tribal law, unless amended by Tribal resolution.

B. To provide Employees with Workers' Compensation benefits to which they are

entitled under Tribal resolution and Tribal Risk Management procedures, regulations and.

schedule of benefits, said benefits being defined as follows:

J. Medical Costs Covered. Usual and customary medical costs will be

approved by Tribal Risk Management.

2. Medical Service Providers. Medical Services and providers will be

approved by Tribal Risk Management.

3, Universal Benefits. All Employees will be entitled to the same benefits

under the same rules.

A, Claim Filing Period. All Employees are required to file claims in

accordance with this section.

a. Claims for injury shall be filed with the Hoopa Valley Tribe's

Insurance Department within ninety (90) days of the injury.

b. Claims for occupational disease shal] be made within one year

from the date of injury. The date of injury is that date the claimant knew

or reasonably should have known of the occupational nature of the disease.

C. Any claim not filed within the applicable period outlined in section

four (4) shall not be covered.

DISPUTED CLAIMS ADJUDICATION

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.

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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.

4A, 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.

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4 The Hoopa Valley Tribal Court is hereby authorized to send all disputed workers’

compensation matters to arbitration before an experienced workers’ compensation

practitioner.

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.

STATUS CONFERENCE

1. The Hoopa Valley Tribal Court shail 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.

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.

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:

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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.

WITNESSES

L. 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.

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.

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.

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.

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

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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;

|. 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.

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. |

REPORTING

AL All hearings shall be reported by a licensed stenographic reporter, 1.¢.,

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.

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.

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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.

A. 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

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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 Jater 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

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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.

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. |

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.

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.

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.

ATTORNEY'S FEES ©

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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.

‘Tn the event of suit against such third party:

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{f 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.

Amended July 20,2000. Page 13

C)

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 retmburse 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.

THIRD PARTY CREDIT / COLLATERAL SOURCE DEDUCTION

The Arbitrator shall off-set any monies received by the Employee during the

_ selevant 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.

INDEPENDENT MEDICAL EXAMINATION

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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. | :

§6 ACTS OUTSIDE COURSE OR SCOPE OF EMPLOYMENT

A. Employees determined to be acting outside of the course or scope of their

employment shall be afforded no coverage under the Hoopa Valley Tribe's Workers’

Compensation plan.

B. An accident occurring to an Employee while on the way to or from work is not

within the due course or scope of employment unless such travel is in direct connection

with the Employee's work.

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C. Liability for compensation shall not exist against the Hoopa Valley Tribe for any

injury sustained by an Employee if the injury is caused by any of the following:

1. Where the injury is caused by the intoxication, by alcohol or the unlawful

use of a controlled substance, of the injured Employee;

2. Where the injury is self-inflicted;

3. Where the Employee has willfully and deliberately caused his or her own

death; |

4. Where the injury arises out of an altercation in which the injured

Employee is the initial physical aggressor;

5. Where the injury is caused by the commission of a felony, or a crime

which is punishable as specified in subdivision (b) of section 17 of the California

Penal Code, by the injured Employee and the Employee is found to have

committed such act by a preponderance of the evidence; or

6. Where the injury arises out of voluntary participation in any off-duty

recreational, social, or athletic activity not constituting a part of the Employee's

work related duties, except where these activities are a reasonable expectancy of,

or are expressly or impliedly required by, the employment.

§7 REFUSAL OF EMPLOYEE TO SUBMIT TO TREATMENT

No compensation shall be payable for the death or disability of an Employee if the

Employee's death is caused by, or insofar as the Employee's disability may be aggravated,

caused or continued by, an unreasonable refusal or neglect to submit to or follow any

competent or reasonable medical aid, advice or surgical treatment.

§8 INCOME BENEFITS FOR TEMPORARY OR NO INCREASED

COMPENSATION TOTAL DISABILITY

A. Temporary Disability

l. If the injury causes temporary partial or temporary total disability, the

disability payment is two-thirds (2/3) of the average weekly earnings. No

payment is due during the first three days after the Employee leaves work as a

result of the injury.

2. Average weekly wage will be determined in accordance with California

Labor Code section 4453 in effect as of January 1, 1997, and as thereafter

amended.

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C)

6

§ 9

3. Such payments will be reduced by the sum of unemployment

compensation benefits and extended duration benefits received by the Employee

during the period of such disability. The injured Employee shall report any

pensions, disability payments or earnings to the Third Party Administrator within

ten (10) days of receipt of such funds.

B. Permanent Disability

1. Indetermining the percentages of permanent disability, account shall be

taken of the nature of the physical injury or disfigurement, the occupation of the

injured worker, and the Employee's age at the time of the injury, and

consideration being given to the diminished ability of the Employee to compete in

an open labor market. |

2. The schedule of the administrative director of the California Department

of Workers' Compensation may be used as guidance in determining the

percentages of permanent disability, but is not prima facie evidence of a_

percentage of disability.

3. Average weekly wage will be determined in accordance with California

Labor Code section 4453 in effect on January 1, 1997, and as thereafter amended.

Computation of permanent disability will be in accordance with California Labor

Code section 4658 in effect on January 1, 1997, and as thereafter amended.

C. Permanent Total Disability

1. Permanent total disability is a disability that precludes the injured

Employee from any and all gainful employment. There shall not be any

presumptions of permanent total disability.

2. Compensation shall be paid at the appropriate weekly rate for temporary

disability subject benefits.

D. | Nocompensation in this section shall be payable subsequent to the death of the

injured Employee.

FATALITY INCOME BENEFITS

A. When an injury causes death within five years from the date of the injury, the

Employer will be liable for compensation to the dependents of the injured Employee as

provided for in this section. The dependent must be a spouse or a minor child, totally or

partially dependent upon the injured worker, at the time of the injury and at the time of

death in order to qualify for benefits. :

B. The death benefit will be four times the annual earnings from the Hoopa Valley

Tribal Council, not to exceed the following maximums:

Amended July 20, 2000 Page 17

1. Spouse plus minor child or children: $115,000.00;

2. Spouse only: $95,000.00;

3, Minor Child or Children Only: $95,000.00; or

4. Additional Maximum Burial Allowance: $5,000.00.

C. The death benefit will be paid at a weekly rate of two-thirds of the average weekly

salary of the deceased Employee while employed by the Hoopa Valley, subject to a

maximum compensation rate $406.00 and a minimum rate of $224.00.

D. The weekly compensation will be divided between the qualifying dependents in

proportion to the percentage of support each received from the deceased Employee. It

will be presumed that each qualifying dependent received equal support from the

deceased Employee.

§10 ENVIRONMENTAL TOBACCO |

Coverage shall be denied and benefits shall not be paid to any claimant claiming injury or

disease due to environmental tobacco.

§11 STRESS CLAIMS

Coverage shall be denied and benefits shall not be paid to any claimant claiming injury or

disease due to stress related work injuries.

§ 12 CHEROPRACTIC TREATMENT

Coverage shall be denied and benefits shall not be paid to any claimant who seeks

treatment from a Chiropractor for any work related injury, except upon the written referral of a

Medical Doctor (MD) licensed by the Board of Medical Quality Assurance of California.

Medical expenses incurred by claimant for treatment by a Chiropractor will not be covered

unless prior written referral is made by a Medical Doctor licensed by the Board of Medical

Quality Assurance of California.

§13 EFFECTIVE DATE, AMENDMENT

This Ordinance shall be effective from the date of its approval by the Tribal Council.

This Ordinance may be amended in accordance with the Legislative Procedures Act of the Hoopa

Valley Tribe. ”

§14 SEVERABILITY —

If any part of this Ordinance is held to be invalid, the remainder shall continue to be in

Amended July 20, 2000 — Page 18

full force and effect to the maximum extent possible.

§15 SOVEREIGN IMMUNITY

Nothing hereunder is intended to be or shall be interpreted to be a waiver of Sovereign

Immunity of the Hoopa Valley Tribe from unconsented suit in Tribal, Federal or State court.

CERTIFICATION

I, the undersigned, as Chairman of the Hoopa Valley Tribal Council do certify that the

Hoopa Valley Tribal Council is composed of eight (8) members of which seven (7) members

were present, constituting a quorum, at a special meeting thereof; duly and specially called,

noticed, convened and held this 20" day of July, 2000; and that this Ordinance was adopted by a

vote of (6) for, none (0) opposed, and zero (0) abstaining; and that since approval, this

Ordinance has not been rescinded, amended, or modified in any form.

Dated this 20" day of July, 2000

DUANE J. SHERMAN, SR., CHAIRMAN

Hoopa Valley Tribal Council

Marcy Baldy; Executive’Secretary

Hoopa Valley Tribal Council

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