Archive for September, 2012

5-6 Nights a Year Defeat “Special Mission” Exception to Going and Coming

September 12th, 2012 No comments

Private security firms often present a tricky issue for workers’ compensation matters.  Injuries still occur, despite the rigorous training courses they provide:

And then comes the inevitable debate – who is to bear the cost of applicant’s (allegedly) industrial injury?

Be careful, dear readers, in opening the can of worms that is Robert Flores v. Garnett Protective Services & Security.  There certainly are a few layers to this case.

Applicant Robert Flores was employed by Garnett, which, under the terms of its contract, provided security to Joseph’s Café.  Joseph’s was a venue version of Batman, providing restaurant service by day and night club service by night.  On occasion, Joseph’s Café would tip Flores and other security guards for a job well done, or offer them additional hours on a cash basis for extra events that were not on the regular schedule.

Garnett had trained Flores, and had the power to hire, fire, or direct his work.  Joseph’s had no one of these powers.

Mr. Flores was called in to do an extra shift, as he is five or six times a year, and was on his way to Joseph’s Café when an unfortunate automobile collision resulted in a claimed industrial injury.  Joseph’s Café had insurance, while Garnett had allowed its insurance to lapse, bringing in the California Insurance Guarantee Association.  CIGA’s position was, to the surprise of absolutely no one, that Joseph’s was also Flores’ employer, and that the injury sustained by Flores was industrial as a “special mission” exception to the “going and coming rule.”

The Arbitrator agreed, reasoning that employment was established by showing that sometimes Joseph’s would hire Flores directly to cover special events that were outside the scope of Joseph’s contract with Garnett, and that the special event to which Flores was going on the night of his injury constituted a “special mission” because it was unusual.

Joseph’s insurer, Pennsylvania Manufacturer’s Association Insurance Company, petitioned the Workers’ Compensation Appeals Board for reconsideration, which was readily granted.  The WCAB held that Flores was not an employee of Joseph’s because Joseph’s had no power to control the manner of his performance or to terminate his employment, only to terminate its contract with Garnett.

Furthermore, because Flores worked special events, like the one he was headed to at the time of his injury-causing-collision, this was not a special errand or mission but just a regular discharge of his duties (although required of him infrequently).  Therefore, there was no industrial injury.

The dissenting opinion to the panel would have concurred with respect to employment, but not with respect to industrial injury.  Deputy Commissioner Sullivan would have found an industrial injury, reasoning that the scheduled event Flores was to work met the definition of a “special mission,” which “occurs when the employee is invited or required by the employer to perform an activity that is within the course of the employment, but is unusual or extraordinary in relation to the employee’s routine duties.”

Bear in mind, dear readers, that your humble blogger’s very instincts militate against agreeing with any notion that any injury should be considered industrial.  However, in this case, he is inclined to agree with Commissioner Sullivan’s opinion.  Although applicant’s regular job included duties year-round, a special mission was involved five to six nights a year.  Percentage-wise, the special events constituted 1.4-2% of the nights in the year, which should meet the definition of “unusual or extraordinary.”

But, there is cause for rejoicing all around, no?  After all, Pennsylvania is off the hook because it is not an employer; CIGA is off the hook because no industrial injury occurred, and Garnett is not on the hook as much as it thought it was, because the injury is now Flores’ responsibility (here’s hoping Mr. Flores had auto insurance!)

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Happy Patriot Day!

September 11th, 2012 No comments

Happy Patriot Day, dear readers!

We often get riled up, frustrated, angry, and heated over issues in workers’ compensation, and rightly so.  Comp is an incredibly frustrating system at times.  That being said, it’s important to remember all things have a context, and there is a much larger world out there.

Even if your day is hectic and crazy today, with the phone ringing off the hook, e-mails flooding your inbox, and an endless time-delay between you and the weekend, your humble blogger wishes you a moment of peace and remembrance for what’s important in life.

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Firefighter, Fighter, Fraudster (and, now, convict)

September 10th, 2012 No comments

As you may recall, dear readers, your humble blogger risked life and limb to bring you the story of Raphael “Noodle” Davis, a (now) ex-Los Angeles firefighter who continued to participate in Mixed Martial Arts (MMA) competitions and brag about his running times on twitter even though he was allegedly “disabled” and couldn’t return to duty as a firefighter.

This defense attorney’s tough exterior shielded him from an impromptu MMA match, but Mr. Noodle’s did not help him avoid prosecution by the Los Angeles County District Attorney’s office.

It looks like Mr. Noodle pled out, agreeing to repay $30,000 in restitution and performing 200 hours of community service.  Mr. Noodle was able to sustain such a sentence, because he developed a tolerance for such punishment as part of his MMA training.  In fact, there is a very painful attack in MMA, called “slap on the wrist,” which closely resembles this sentence.

Doesn’t LA have a problem with its budget?  Is money really flooding the streets of Los Angeles County that they can afford to give a wink and a nod to firefighters, policemen, and any other city and county employees who choose to get a fraudulent pay-day?  The City was effectively paying Mr. Noodle to pursue his MMA career!  Will the $30,000 really cover the cost of investigation, prosecution, and enforcement?

Fraud is hard to detect, and therefore hard to deter.  When you do catch a fraudster like Noodle, you have to throw the book at him so the rest of the workforce will realize it is not worth it.  As it stands, it’s pretty worth it right now in L.A.

WCDefenseCA would love to give a salute to the Los Angeles County D.A.’s office, but unfortunately no salute shall issue.

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Horton Hears a Contribution Demand

September 7th, 2012 No comments

“Even though you can’t hear them or see their jig, an insurer’s a person, no matter how big.”

Such was the rule articulated in Richard Horton v. Crown Cork and Seal, a recent panel decision from the Workers’ Compensation Appeals Board.

Applicant Richard Horton received a stipulated award for a 2002 injury in 2004, entitling him to indemnity totaling $45,262.50 and future medical treatment.  In 2006, he filed a petition to reopen for new and further disability, including a new injury to the psyche.  The matter was against resolved by stipulation, this time at 66%, up from the previous award of 49%.  This time, applicant’s pay day was an additional $21,760.

Well, between the 2002 injury and the 2006 injury, employer Crown Cork and Seal switched insurers from Travelers Insurance Company to American Protection Insurance Company, so APIC naturally filed a petition for contribution from Travelers.  The petition was referred to arbitration.

The arbitrator decided this case on the term “new and distinct benefits” as used in Rex Club v. Workers’ Comp. Appeals Bd.  Rex Club noted that “[i]f the WCAB determined that SCIF could seek contribution only as to the $200,000 awarded pursuant to the 1994 order approving compromise and release, the WCAB is correct to the extent the order awarded new and distinct benefit.”

The arbitrator interpreted this to mean that APIC was barred from seeking contribution form Travelers because the benefits awarded after the 2006 petition to reopen were not new and distinct from those awarded in 2004.

The WCAB disagreed and granted APIC’s petition for reconsideration.  In arriving at its decision, the WCAB reasoned that “[t]he second award provided benefits for new and further disability arising out of the original injury as well as disability arising from an injury to the psyche as a compensable consequence of the original injury.


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Bullying at Work on the Rise

September 6th, 2012 No comments

Is your boss a jerk? What about your co-workers? Your customers?  Your subordinates?  Apparently bullying at work is becoming the “new thing,” both in it’s happening and its focus in the workers’ comp world.

A new study by Career Builder finds that bullying at work is on the rise, with 35% of employees surveyed reporting that they had been bullied at some point at work.  “Bullying,” as defined by the study, included being falsely accused of mistakes, double standards, criticism, getting yelled at in front of coworkers, and various other “mean” things.

Now, having the pleasure of knowing several of my beloved readers personally, I can imagine more than a few pairs of eyes rolling upon reading this post.  But, like it or not, this is a very real threat to businesses and insurers.

Bullying can be real and serious and haunt an employee even beyond the 9-5 work day.  Bullying can also just be a real workplace with real deadlines and real demands and a real need for employees with a thick skin.  In either case, whether it is perceived or actual bullying, employees are made unhappy employees by it.  Workers who aren’t happy don’t want to return to work, and they don’t mind “sticking it to the man” by filing ridiculous claims.

If you’re the boss, keep an eye out for this sort of behavior, especially in your own actions.  No one wins when workers, injured in fact or injured in their imaginations, are on the war path for a place they feel has mistreated them.

It’s much cheaper to just be a decent human being than to face the psyche claims and increased workers’ compensation costs.

And if you don’t, I’ll find out about it and take your lunch money…

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CIGA Must Reimburse Longshore Payments

September 5th, 2012 No comments

Today’s post has to do with a narrow area of the law for most of us California comp people.  The Longshore and Harbor Workers’ Compensation Act is a Federal law which functions as a workers’ compensation of sorts for dock workers.  So if you’ve got employees unloading ships in the Port of Oakland, there’s a good chance you’re dealing with this draconian system on a regular basis.

Now, I won’t bore you with the details, but apparently there is no CIGA equivalent under Longshore – only a requirement that, when an employer’s insurance company becomes insolvent, the employer must continue paying benefits in place of the insurer.  However, in cases where the insurer and the employer are insolvent, there is a Special Fund that might step in.  But that’s not particularly comforting to the (insolvent) employer.

So if a California employer has a federal Longshore claim on one hand and an insolvent insurer on the other, can it knock on CIGA’s door?  The recent panel decision (and ultimately a writ denied case) of Kohn Koch v. R.E. Staite Engineering, Inc. says it can.

Applicant was a commercial diver for Staite and sustained an injury that was accepted by Staite’s insurer.  Applicant pursued a Longshore claim and, just three years later, Staite’s insurer was placed in liquidation.  Staite continued to make payments to the unfortunate Mr. Koch, but then sought reimbursement from CIGA.  CIGA naturally had a problem with this, and made its objections, which looked something like this:

In any case, the workers’ compensation Judge found that the matter had already been resolved and collateral estoppel applied.  After all, the exact same issue had been resolved in the case of Roy Rogers v. CIGA, a 2007 case in which the exact same facts presented with the only difference being Roy Rogers instead of John Koch (Staite was the employer in that case too!).

The Workers’ Compensation Appeals Board took a different approach to the same conclusion.  Reasoning that the injured worker can pursue California workers’ compensation benefits AND Longshore benefits, but is precluded from a double recovery, the WCAB found that CIGA would be liable if applicant pursued California comp benefits as well.  Given this, CIGA would be on the hook for those California benefits, and Staite should receive credit for those benefits paid under Longshore, to the extent they would be available under California law.

There was a dissenting opinion to the panel decision, which noted that just because something could have happened, such as the filing of a California comp claim, does not mean that a judicial determination should be made on that “could-have.”

In any case, employers – if you may fall under the Longshore Act, it appears that CIGA, willing or not, has you covered.


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SB-863 On Governor’s Desk

September 4th, 2012 No comments

Well, well, dear readers – welcome back!  As we recover from our Labor Day shopping, road trips, and other celebrations, we are greeted by a new law of the land.  That’s right, dear readers – SB 863 has passed both the State Assembly and the Senate, creating a tidal wave of momentum as it is rushed to Governor Brown’s waiting desk.  In case you’re wondering, Governor Brown has been pushing for SB-863, and popular speculation counsels that today’s early morning sunshine will show his signature adorning the bill.

SB-863 gives us plenty to talk about: 170 pages of reform and a new frontier for attorneys to litigate.  But it appears that most of the changes will take place for injuries on or after January 1, 2013.  That’s not long to wait, admittedly, but if you’ve got a few filing cabinets full of pre-2013 injuries, the cavalry will be coming only slowly.

Despite its many wonderful changes, one of the disappointments with this bill is found in section 1, subsection (c): “it is not the intent of the Legislature to overrule the holding in Milpitas Unified School District v. Workers Comp. Appeals Bd. (Guzman).”  But perhaps there is a silver lining: has the Legislature said something else in this declaration of legislative intent?  After all, there are two cases dealing with rebutting the AMA Guides and skirting their strict interpretation:  Almaraz and GuzmanGuzman III offers us considerably healthier language.

So here’s a thought – if the Legislature expressly states that it does not mean to overrule Guzman III, we know that despite the Legislature’s various limitations, it is able to articulate those cases which it does not wish to overrule.  Can we, then, assume that the Legislature does intend to overrule Workers’ Compensation Appeals Board decision in Almaraz II to the extent that Almaraz II differs from Guzman III?

Perhaps… time will tell.

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Happy Labor Day 2012!

September 3rd, 2012 No comments

Happy Labor Day!  As everyone knows, Labor Day commemorates the crazy antics of John S. Labor (pronounced: le-bore) who, through the coordinated use of bulls, peanut butter, and a feisty parrot, managed to tame the Wild West…

I hope my beloved readers are enjoying a very well-earned day off.  As always, your humble blogger is busy at his desk, which looks something like this:

funny labor day4 Enjoy your day off, suckas (21 photos)

Now where did I put my red stapler?

If you’re in the office, working hard or hardly working, feel free to drop a line and say hello!

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