Category Archives: Legislation

Audiologists to Become QMEs

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Let’s say you want to get a qualified medical evaluator to take a look at the applicant’s hearing and determine if there is any basis for apportionment or to argue AOE/COE.  It’s simple, you would just request a panel in with the specialty of audiology, right?  What’s that you say?  There’s no such specialty… not even at the QME database on the Medical Unit’s website?

Well, it looks like there may be a change to that soon enough.  Assembly Bill 1454, introduced by Assembly Member Solorio (D-69th District), unanimously passed through the Committee on Insurance on March 28, 2012 and is on its way back to the Committee on Appropriations.

Some of my readers may recall that Assemblyman Solorio has been mentioned on this blog before, having exerted his influenced in an effort to see the temporary disability cap raised to 240 weeks.

We’ll have to keep our collective eyes on this one – before we know it, we may be fighting off prescriptions for blue-tooth devices and trying to figure out if the new crop of audiologists has an applicant bias.

Is a Hairstylist an Independent Contractor? WCAB Says “Yes.”

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Yesterday’s post covered proposed legislation to amend the definition of an independent contractor, repealing current Labor Code section 3353 and providing, instead, a list of factors to consider in determining whether a worker is an independent contractor or an employee (determining, also, if the principal must provide workers’ compensation insurance).

A recent writ denied case addressed this very issue.  In Margarita Aparicio v. Workers’ Compensation Appeals Board (2012), the WCAB had denied applicant’s petition for reconsideration of the workers’ compensation Judge’s ruling that she was an independent contractor and not an employee.  Applicant worked as a hairstylist at Unisex Barber, and claimed she had sustained a plethora of injuries during her 20 months as a hairstylist with defendant.

Defendant denied the claim on the grounds that applicant was an independent contractor:  she was not supervised, set her own hours, and provided her own tools.  Apparently, at the time that the professional relationship began between applicant and defendant, which applicant no-doubt, at least for the purposes of her claim, considered the “time of hire,” applicant had told defendant that she had a cosmetology license, although one was never actually produced.

Applicant failed to appear at a hearing and the WCJ issued a finding and award, finding that applicant was an independent contractor.  The fact that some supplies were provided to applicant during her work and that defendant had insured some of its employees did not seem to sway to the WCJ to a finding in the non-appearing applicant’s favor.

The testimony from the defendant at the hearing showed a typical hairstylist-hair salon relationship.  In some arrangements a barber or hairstylist will pay rent and pocket all the money paid by his/her clients, while in this case the hairstylist kept a portion of the money paid by her clients and was provided with a place to work and some supplies.

Under AB2373, perhaps the analysis would have been different?  After all, some of the factors in AB2373 would have worked in applicant’s favor:  she (at least by the time of her claim) believed she had entered into an employee-employer relationship, the services were integrated into the principal’s business operations, and several other factors might make it harder for a workers’ compensation Judge to find for the defense.

A written agreement may be of some use in such cases, to avoid future misunderstanding.  Perhaps requiring the contractor to purchase workers’ compensation insurance for him or herself would not be a bad idea either.

New Legislation to Define “independent contractor”?

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What is an independent contractor?  Presently, Labor Code section 3353 defines an independent contractor as “any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which result is accomplished.”  Independent contractors are a different animal than employees – and workers’ compensation insurance isn’t necessary for independent contractors.

Assembly member Chris Norby (R-72nd Assembly District) introduced Assembly Bill 2373, which would provide a detailed list of factors to consider in determining if a person is an independent contractor or an employee.

Here is the list of factors currently proposed:

“(a)  The extent to which the principal controls and directs the manner and means of rendering the service.
(b)  The extent to which the principal provides training to the person rendering the service.
(c)  Whether the service rendered is integrated into the principal’s business operations.
(d)  The method by which the principal provides recompense.
(e)  Whether a continuing relationship exists between the principal and person rendering the service.
(f)  Whether the principal established the hours of work of the person rendering the service.
(g)  The amount of time required for the person to rendered (sic) the service.
(h) Whether the principal or person rendering the service provides the instrumentalities and facilities necessary for rendering the service.
(i)  The extend (sic) to which the person rendering the service is required to report to the principal.
(j)  The extent to which the person rendering the service has unreimbursed business expenses or investments in the business of the principal.
(k)  Whether the person rendering the service is engaged in a separate occupation or business or makes his or her service available to the general public.
(l)  Whether this kind of service is usually rendered under the direction of the principal without supervision.
(m)  Whether the parties believe they are establishing an employer-employee relationship.
(n)  The length of time for rendering the service.
(o) The extent to which the service pertains to the regular business of the principal.
(p)  The skill required to render the service.
(q) Whether the principal or person rendering the service have a right to terminate their relationship.”

This bill would provide a lot more for attorneys to work with when the question of worker status comes to litigation.  Perhaps the question of workers’ compensation should factor in as well – does the worker have insurance for him or herself?  Does the principal cover the worker?

One thing is certain – clear guidelines are very necessary in this regard.  One could hire a “contractor” to do work, and suddenly the contractor is an employee and the principal is suddenly in breach of the law by failing to insure his or her “employee.”

Opt Out of Workers’ Comp? Not in California!

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Maybe this whole workers’ compensation thing isn’t worth it.  After all, the purpose of the workers’ compensation system was a trade-off: employers get caps on their liability, employees get quicker access to benefits, and the variable of fault is no longer part of the equation.  So, slip on a banana peel at the supermarket where you work, and you get benefits, unless you were shopping on your day off, then you’re just a klutz.

But what if you’re an employer and you’re fed up with this ridiculous system!  You’re tired of applicant’s attorneys demonizing you to your employees; you’re tired of paying insurance companies or defense lawyers or being audited again and again by the state just for self-insuring?  What if you could just opt out?

What if an employer could opt out of the workers’ compensation system?

That’s not the thinking in California, but it is in Oklahoma.  Having passed the House and the Senate of the state where hard work still conquers all, the law now awaits calibration between the two houses of the state Legislature before going to the Governor’s desk.  Texas already has an opt-out process for workers’ compensation, but in typical Texas fashion, was the only state to do so (until now).

One of the stated purposes of House Bill 2155 is to “[a]ssist the state in attracting and retaining business, thereby contributing to the overall economic development and well-being of its citizens.”

But where would Oklahoma, as a state, attract business from … except other states?  Perhaps other states like … California?

Sacramento – the rest of the Union is out to poach California businesses.  Please don’t make it easy for them to do so by driving every employer off.

Visiting California for the Workers’ Comp – Part 3 of 3

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So by this point, you’ve read Parts 1 and 2 of this article.  You’ve laughed, you’ve cried, and you’ve decided not to give up on doing business in or with California, and also to stop sending your fragile blogger e-mails accusing me of actively trying to depress you.

So what can you, the employer, insurer, or the self-insured employer do to keep your liability down when you send your employees into California?  For starters, either purchase a California workers’ compensation insurance policy or make sure your current policy covers employees when they are out of the state.  Next, ask your attorney to secure a certificate from your state regarding its workers’ compensation reciprocity laws with California.

And what do you do if your state doesn’t have reciprocity or similar laws?  Lobby, and get them passed.  In 2011, Florida adopted House Bill 723, establishing reciprocity laws.  Michigan followed suit later that year with House Bill 5002.  If your state does not have a reciprocity law, perhaps some lobbying dollars spent now can save workers’ compensation dollars in the future.

Kansas has taken another approach.  A recent arbitration ruling in a case between the Kansas City Chiefs and the NFL Players Association held that Chiefs players must bring their workers’ compensation claims in Kansas, ordering the players to abandon their California cases.

The basis of this ruling appears to be the contract terms between the players and the team.  From noted sports-law blogger Daniel J. Friedman, of LockoutLowdown:

“Article 41 of the newly ratified NFL CBA encompasses the NFL and NFLPA’s ‘Worker Compensation’ plan.  As part of this agreement, under Art. 41, Sec. 5 states ‘The parties shall immediately establish a joint committee that will make good faith efforts to negotiate a possible California Workers’ compensation alternative dispute resolution program on a trial basis (i.e., carve out).’  However, Sec. 6 Reservation of Rights states ‘The parties shall retain the positions they held prior to this Agreement with respect to all existing litigation and arbitration involving workers’ compensation issues, including without limitation, the federal and state courses in California (Titans), Illinois (Bears) and New York (Mawae, Harvey) regarding offset issues or choice of law and forum provisions contained in NFL Player Contracts, and nothing in this Article shall affect positions taken in any such pending litigation.’    I do not think that the carve out provision has been agreed to yet but the resolution in this case likely tilts the balance of power back to the League’s favor as they continue to make ‘good faith efforts’ in coming to an agreement related to carve-out.  I would not be surprised if the players in this situation appeal.  However, because this was an arbitration, it will be very difficult to have the ruling overturned unless they can prove their was an abuse of process.”

But, given the fact that California regards contract terms waiving access to California’s workers’ compensation system to be unenforceable, it remains to be seen how effective this approach will prove.

The State of Oregon has put together a list of the reciprocity laws of various states.  You can review it here.  Your humble blogger does gently suggest you verify for yourself any citations found on this website – I certainly have not done so and can not make any claims as to its accuracy or current status.

So, will this fearless blogger, cumulatively traumatized by California’s workers’ compensation system, be seeing you in the Golden State anytime soon?

Visiting California for the Workers’ Comp – Part 2 of 3

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Yesterday we discussed the problem facing professional sports and California games – players seek California benefits after playing in California a few times as part of a multi-season career.  This is a problem for any business that has prices reflecting non-California workers’ compensation costs.

This problem doesn’t only apply to professional athletes – they just get all the attention.  The same law applies to traveling non-athlete employees.  California hosts conferences.  California hosts training seminars.  California is just a nice place to visit.  And often enough, if you’re looking for skilled talent, California can be a great place to send your agents to do some recruiting.

But while your employees are conferencing, training, visiting, or recruiting, they’re exposing you to liability under California’s workers’ compensation system.  Are you prepared to pay Golden State rates after a lifetime of reasonable prices?  Maybe you don’t have to.

Your hypnotically eloquent blogger may have worked you into a frenzy over the exploitation of employers and insurers nationwide by one-time California visits and the effect of subjecting non-California defendants to California workers’ compensation jurisdiction.

Put down the torches and pitchforks, take apart the guillotine, and please, please, please, stop holding your formerly favorite football star or conference speaker hostage – I assure you there is a better way!

California does jump the gun on claiming jurisdiction as often as possible for workers’ compensation matters, but Labor Code section 3600.5(b) provides a reprieve.  As the law holds, California will not claim jurisdiction over a non-California employee injured in California, even if that injury is part of a cumulative trauma, if the following conditions are met:

  1. The employee is only “temporarily” in California;
  2. The employee is covered by extra-territorial insurance (meaning the policy applies to the worker even when he or she is out of the state in which he or she normally works);
  3. The laws of the state where the employee is normally employed are “similar” to those of California; and
  4. The state where the employee is normally employed has a reciprocity rule with California.  In other words, California keeps its hands off state X, and state X keeps its hands of California employees injured in state X.

In an example contrary to the case mentioned in yesterday’s post, the recent panel opinion in the case of Vaughn Booker v. Cincinnati Bengals held that California did not have jurisdiction over a case in which Vaughn Booker played one game out of 48 in California.

Mr. Booker sought to invoke California’s workers’ compensation system to adjudicate his cumulative trauma claim.  But the Bengals had done their homework, and the WCAB held that (1) applicant only temporarily worked in California; (2) Ohio and California have “similar” workers’ compensation laws; (3) Ohio’s laws cover applicant while he is working in California; and (4)Ohio has reciprocity with California in accordance with section 3600.5(b).

In other words, the Bengals escape to their home territory with their stripes very much intact.

So what can you do other than boycotting the State of California?  Unless you’re willing to give up on medicinal marijuana, body-builder governors, and the nation’s largest concentration of happy cows, I suggest you come back tomorrow for Part 3 of 3.

Cal. Chamber of Commerce Hires WC Policy Advocate

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California’s Chamber of Commerce announced that it has hired a new policy advocate for workers’ compensation – Jeremy Merz (a graduate of University of California, Davis and McGeorge School of Law, much like your humble blogger – but please don’t hold that against Mr. Merz, WCDefenseCA has every confidence in his abilities to advocate on behalf of employers suffering from lack of workers’ compensation reform.)

From time to time, this blog has reported on the constant chipping away at the reforms of 2004 and 2005 by applicant’s attorneys, lien claimants, and prescription and surgery-happy physicians (and their lobbying groups).  A series of landmines were side-stepped by Governor Brown in 2011 with the use of his pen for both signing laws and vetoing them.

No doubt the efforts to increase temporary disability to 240 weeks, bring back “rehabilitated” body parts while repealing apportionment under Labor Code section 4663, and countless other assaults on Utilization Review, fee schedules, etc. all await us in 2012.

Lobbying dollars and resources spent on retaining policy advocates are a worthwhile investment for those companies not yet packing the moving trucks and abandoning the Golden State.  Mr. Merz – good luck to you, sir.

Michigan Timidly Tries to Curb California

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Early on in my blogging career, I wrote about Florida’s efforts to curb California’s pillaging of orange groves and Dolphin teams with our very own section 5500.5.

I even had the distinct privilege of summarizing the workers’ compensation issues on Lockout Lowdown, an excellent sports law blog.

It appears that several states may follow Florida’s lead, among them Michigan, although clearly not as boldly and with a fraction of the effect.  A recent article reports that unsurprising support of the Detroit Lions for HB 5002, the Michigan workers’ compensation reform bill.

The bill locks visiting players out of Michigan’s workers’ compensation system if their state makes reciprocal arrangements for Michigan’s players.

In other words, the legislature in Michigan is telling the legislatures of other states: pass similar laws or we’ll loot your professional sports teams.

Here’s the problem with Michigan’s scheme: California doesn’t appear to care very much about its businesses, sports teams included, so the 49ers, the Giants, etc. are more of the human shield variety for Michigan and the like.  Also, no other state has as crippling generous workers’ compensation benefits as California, so more pillaging will be done from this state than from any other.

In any case, I salute Michigan for heading in the right direction – I don’t want non-Californians clogging up my venues with non-California cases because of a single game played in the Golden State.

As we watch the events unfold before us, dear readers, remember to keep calm and carry on.

CWCI Releases List of New Legislation

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Earlier, I blogged on the flurry of law-signing activity that happened at the Governor’s mansion.  I had intended to blog on most of the legislation, but the good folks at the California Workers’ Compensation Institute beat me to the punch.

CWCI has prepared a list of the workers’ compensation legislation signed into law recently.

A couple to keep an eye on in particular are Assembly Bill 335 which adjusts the language of benefits notices and Assembly Bill 1168, which would establish a fee schedule for vocational rehabilitation experts.

Honestly, even as a notorious cynic, I’m impressed – Sacramento could have done a lot worse.

Wild Night at the Governor’s Mansion

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Previously, I posted on a few would-be laws that were headed for the Governor’s desk.  Your humble blogger had expressed guarded hope that bills such as AB 947 and AB 889 would meet a brutal and gruesome death on the Governor’s desk, while AB 378, which would rein in compound drug abuse, would become law.

Well – the Governor is done signing (and not signing) bills, and the results are in!

It looks like AB 947, which would have more than doubled the allowable period for temporary disability suffered Governor Brown’s veto, while AB 378 was signed into law.

As for AB 889, it is still in committee and has not received the Governor’s treatment (yet).

Several other workers’ compensation bills were signed and vetoed, and over the next couple of weeks, I hope to blog on them as well.

But, my dear readers, be aware, that lien claimants should tremble and compound-drug peddlers doctors should tighten their belts: Grinberg, armed with the now-signed AB378, is coming after your liens!