WCDefenseCA

Does the Workers’ Compensation Appeals Board take sides in the fast-food wars?  Do the Commissioners, normally unbiased and committed to the law, take some special form of vengeance against the good people over at Carl’s Jr.?  Undoubtedly, some night years ago saw a drive-thru order for curly fries erroneously and callously fulfilled with regular French fries.   Perhaps a diet soda was served where a regular soda was ordered.  And, who can forget the shame of a ketchup stain on a commissioner’s favorite robe?

This blog had occasion to report to its sharp-witted and kind-hearted readers the case of Bertha Chan v. Carl’s Jr., in which the WCAB held that the post-termination defense of Labor Code section 3208.3(e) did not bar Ms. Chan’s claim for cumulative trauma.  Now, it appears that your humble blogger must once again report to his loyal and dedicated readers that the WCAB has again rejected poor Carl’s defense of a post-termination claim.

The case is that of Maria de Jesus Flores v. Carl’s Jr.  The basic facts are these: Ms. Flores gave two weeks’ notice that she was quitting her job, but was fired before the two weeks had ended.  Less than two weeks after her last day, applicant filed a claim for an alleged injury to her back, upper extremities, lower extremities, neck, head neurological system and psyche, allegedly sustained as a cumulative trauma.

The workers’ compensation Judge ordered applicant to take nothing, reasoning that she was let go by her employer and the post-termination defense barred her recovery.  Applicant petitioned for reconsideration and the WCAB was happy to oblige, glaring angrily at Carl’s Jr.’s Answer from behind their respective Happy Meals.

The commissioners reasoned that an employee who voluntarily quits will not be barred by Labor Code section 3600(a)(10).  The reasoning is fairly straightforward:  the defense in question was intended to protect employers from angry former-employees seeking revenge for being fired, and when an employee voluntarily resigns that’s unlikely to be the case.  After all, it’s the guy who gets dumped that’s bitter about the relationship, not the girl who dumped him.  Well, it’s her loss… Ms. Flores’ loss for quitting, of course.

There are, of course cases, in which this logic would not hold – for whatever reason, Ms. Flores’ employer let her go early – they were entitled to more days of her labor and they didn’t want it.  The facts that Ms. Flores was quitting and that Carl wanted her out suggest that there may have been some hard feeling after all.

In a typical employee-employer relationship, an employee could do some single act which would warrant an immediate termination of employment.  The fact that the employee was already on the way out does not negate the reasoning behind the code section.

Carl, this blog wishes you the best of luck with the Court of Appeal!  Hopefully, your fine cuisine will have more fans on the higher bench.

Some of his blog’s readers may recall a certain workers’ compensation claimant who suffered from various injuries, including weak knees.  Modupe Adunni Martin, a custodian for a Hayward high school, had filed a claim in 2009 for an alleged injury to her ankle.  She forgot to amend the application to include injury to her knees, which apparently buckled at an inopportune moment when meeting her boyfriend in a park.

Private investigators happened to be filming at that time, and this footage and more showing Martin walking without her supposedly necessary crutches, led to a workers’ compensation fraud prosecution by the Santa Clara County District Attorney’s Office.  It now appears that Ms. Martin no longer proclaims her innocence, and instead has pled no-contest to the charges.

As a result of her plea, she will serve up to a one-year sentence in county jail.

Does this seem fair to you?  Your humble blogger isn’t too satisfied with the result.  A woman knew she was lying about her injury, wasted countless physician hours and employer dollars, and performed a sex act in a public park.  For that, she will serve up to one year in county jail.

Once again, the employer will never recoup the costs of investigation, the county will not recoup the costs of prosecution and incarceration, and more fraudsters will be emboldened to try their luck – for the maximum risk of a one-year county jail sentence, get a paid vacation for several years!

Doom and Gloom.  Nobody likes hearing it, and most people don’t like speaking it.  But, dearest readers, your humble blogger brings tidings more of ill than of good.  The good news first: much to the surprise of anyone involved with the California workers’ compensation system, California is not the most expensive state for workers’ comp.  It is not even the second most expensive state in the Union.  The first prize goes to Alaska and the second to Connecticut, based on a recent study by the Oregon Department of Consumer and Business Services.

Now comes the bad news – California is ranked #3, up from a rank of #5 in 2010.  Costs are plenty to go around in the state of Napa fruit and San Francisco nuts – there’s the litigation, the administrative costs, and the medical bills (don’t forget that little number).

Additionally, there is the underground economy – employers, in violation of the law, declining to insure their employees against industrial injuries and unfairly taking business away from their competitors that do.

California’s neighbors, Oregon, Nevada, and Arizona, all enjoy significantly lower rankings of 39, 46, and 37, respectively.

Despite the free status of this publication, your humble blogger remains a very self-interested workers’ compensation defense attorney, and has discovered, to his infinite sadness, that his bar won’t stock itself.  California needs business to stay put and stop running for the state border with jobs and tax revenue in tow.

Some of the provisions of SB-863 will hopefully help with that, but, in the meantime, rejoicing in the fact that California is not Alaska or Connecticut, is a small victory indeed.

Would applicant’s prefer to litigate Labor Code 132a issues in civil court instead of before the Workers’ Compensation Appeals Board?  On the one hand, perhaps the applicant might luck out with a sympathetic jury, one which would value the world’s tiniest violin over the law.  There is also the advantage of driving up the expense and delay for the defense, pressuring a bigger settlement.  And who knows, perhaps, there would be no cap to “damages” for a 132a claim in a civil trial.

Fortunately, we don’t have to worry about these pocket-sized insanities in the workers’ compensation arena.  The Court of Appeal, in a partially published decision, held that an applicant claiming wrongful termination and discrimination based on Labor Code section 132a.

In the case of Michelle Dutra v. Mercy Medical Center Mt. Shasta, plaintiff filed an action for defamation and wrongful termination in violation of public policy, specifically Labor Code section 132a.  Essentially, Ms. Dutra allegedly injured her back while working as a housekeeper for Mercy, and filed a claim in 2008.  Her employment was terminated later that year.  Undoubtedly, Mercy was just retaliating against Ms. Dutra for filing a claim, although the fact that she had committed check fraud, falsified her time-card, abandoned her post without clocking out, and repeatedly gossiped on duty after being repeatedly cautioned not to, might have had something to do with it as well.

But Ms. Dutra did not file a Petition for penalties or increased benefits under Labor Code section 132a.  Instead, she cited one part of 132a, specifically the initial statement that it “is the declared policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment.”

The Court of Appeal found that applicant’s claim was rightfully dismissed by the trial court, as Labor Code section 132a rests exclusively within the domain of workers’ compensation.  However, there may be other remedies under the Fair Employment and Housing Act, which Ms. Dutra declined to pursue.

In any case, it looks like employers don’t need to worry about jury selection just yet.

The California Supreme Court has decided to take up the Valdez case!

As my readers will no-doubt recall, your humble blogger has diligently documented the progress of the Valdez case, and all its potential benefits for the defense in California’s workers’ compensation system.

Based on nothing more than the description on the Supreme Court website, it appears that the only issue left in Valdez is admissibility – whether treating physicians outside of a valid Medical Provider Network are admissible.  It appears that the holding of the Workers’ Compensation Appeals Board with respect to liability for such physicians’ bills is undisputed – the defense will likely remain liability-free, much to these lien claimants’ dismay.

But what happens if the reports are admissible?

For one thing, applicant’s counsel will be able to unnecessarily prolong litigation my delaying resolution and the close of discovery to allow for more evaluations and reports.  Additionally, applicant-friendly QMEs will have more ammunition upon which to base their reports – imagine a QME who fails to include necessary discussions on such topics as apportionment; a crafty applicant’s attorney will argue that between the extra-MPN physician’s report and the QME’s report, there is a complete report upon which to award Total Permanent Disability for that vicious paper-cut cruelly suffered by applicant on his day off while he was thinking about work.

Hopefully the Supreme Court will recognize that, although applicants should be able to hire as many witch-doctors and butchers to “treat” themselves on their own dime, those so-called reports should remain inadmissible, and the arena of discovery should be limited to the MPN-based treating physician and the Agreed/Qualified Medical Evaluator (or evaluators).

In the meantime, extra-MPN liens should be settled for token amounts and the possibility that extra-MPN reports will be found inadmissible should be used to leverage a more reasonable settlement for the cases-in-chief.

When your humble blogger knows more, dear readers, so will you.

“Cheer up,” I told my brother-in-law, Jasper.  “Not all injuries sustained in parking lots are compensable.”  At that, Jasper seemed to rekindle the possibility of a parking-lot obstacle course and he began to listen closely.

For example, in the case of Jessica Rodgers v. Workers’ Compensation Appeals Board, an employee took a break from work to go to the bank.  She then returned to the work parking lot and arranged her money before stepping out of her car and returning to work.  In between her car and the building, however, a “biker,” who had followed her from the bank, attacked her and stole her money.

Even though the injury was sustained during work hours, between starting and finishing the day’s shift, and in the employer parking lot, the Court of Appeal held that the injury was not compensable because the cause of the injury was formed independent of any work-related activity – the biker just wanted to rob her, regardless of where she worked or who she was.

Likewise, in the panel decision of Basil Perkins v. City of Los Angeles, the applicant, a city animal control officer, was shot while napping in his work-vehicle, while parked in the employer-owned lot, and wearing his uniform.  As his home was over 130 miles away, he made a regular practice of napping in his car after a shift had ended.

Initially, the workers’ compensation Judge found the injury compensable, but the Workers’ Compensation Appeals Board reversed, finding the injury was not compensable, as the shift had ended, and the employee was only in the parking lot for his convenience.  In other words, the scope of employment cannot be artificially extended by dallying on the employer’s premises.

The same occurred when a worker arrived to work too early, as in the writ denied case of Paul Grove (Dec’d), Sharon Grove (Widow) v. Miller Coors, LLC. In that case, the employee had arrived to work early and had used the restroom at work less than two hours before the start of his shift, when he sustained an injury in the restroom.  There, the workers’ compensation Judge found the injury to be non-compensable.

Fortunately, Jasper never got to try out his obstacle course idea – the wheel barrel industry took a down-turn, and he decided expanding beyond his garage was not a good idea at this time.  Regardless, here are some take-away rules:

1. Arriving at an employer-owned or provided parking lot begins the scope of the employment relationship and ends the commute, so long as the arrival is within the regular time for employment.
2. If travel to the employer or the employer’s parking lot presents a “special risk” to the employees, then the time during which the employee is exposed to the risk will not be barred by the Going and Coming Rule.
3. Injuries sustained in an employer-provided parking lot are subject to AOE/COE analysis, so injuries sustained for reasons unrelated to work, such as robberies, will not be compensable, unless the special risk doctrine applies.
4. Whatever the liability for workers’ compensation, the “Going and Coming” rule is not subject to the premises rule for civil liability and respondeat superior, as found by the Court of Appeal in Dean Hartline v. Kaiser Foundation Hospitals.
5. Do NOT invest in the wheel-barrel market if the president of your company is busy planning an obstacle course for his employees trying to get to work.

There I sat, dear readers, with my brother-in-law Jasper looking at the blue-print of the wheel-barrel factory parking lot he was considering buying, and imagining all the obstacles he could place between the street and the factory employee entrance with which to test his employees.

So, as I side-stepped the issue of intentionally exposing workers to snake-pits, quick-sand, and land-mines, I gently pointed out that he might still be liable for injuries sustained in his parking lot because of the “special risk” doctrine, which makes injuries sustained during travel to work compensable if the employee is exposed to a risk of injury, for the benefit of the employer, to which the general public is not exposed.

For example, the applicant in the case of Sandra Parks v. Workers’ Compensation Appeals Board, was attacked two car-lengths down the street from the employer-provided parking lot, as she was boxed in by school children crossing the street and other cars behind her.  In finding the injury compensable, the Court of Appeal reasoned that the car’s immobility caused by school children crossing the street was a special risk, and thus compensable.

Similar results were reached in R. G. Greydanus v. Industrial Accident Commission and John Freire v. Matson Navigation Company.  In Greydanus, a dairy employee who had to turn left across a busy road to pull into the dairy farm was found to be exposed to a special risk because of the dangerous turn.

Likewise, in Freire, a janitor who worked aboard a steamship could only reach the ship by walking across a public bulkhead.  The walk across the bulkhead was found to be a special risk, and the injury, though sustained some distance away from the ship itself, was found compensable.

Jasper looked deeply saddened as his eyes became watery and he glanced down at his blue-print.  Where, before, the set of American-Gladiator was re-born in his parking lot, now remained only painted lines between which employees could park their cars before proceeding to work.

Frustrated, Jasper shoved his blue-print aside and decided he wouldn’t have a parking lot at all.  As he angrily stared out the window, no-doubt jealously glaring at the restaurant’s parking lot, your humble blogger felt compelled to give some good news.

What could I tell Jasper to cheer him up?

Employees sometimes drive to work,
And then they find a parking spot,
Sometimes on a busy street,
Sometimes in a parking lot,
But injuries can still occur,
Between their cars and the front door,
And who will pay for slips and falls,
Will always be the Judge’s call.

Such is the nursery rhyme sung to children of applicants’ attorneys and defense lawyers in the dark and murky world of California workers’ compensation.

This issue came up recently while I was having lunch with my brother-in-law, Jasper.  Jasper had been doing well recently in the wheel-barrel industry, and wanted to expand his operations from his garage to a real factory.  He invited me to lunch to present me with some exciting investment opportunities in the wheel-barrel industry.  Currently, Jasper had his eye set on one location in particular because it came with a parking lot.

His plan was to set up a series of obstacles in the parking lot, in the hopes that the employee with poor agility and balance would sustain injury outside his factory and shield him from workers’ compensation liability.  Thus, only the workers that could swim faster than sharks, swing over quick-sand pits, and tight-rope over mine-fields would actually make it to work.

Without getting into issues of Serious and Willful Misconduct, for those readers out there that aren’t Jasper, when you’re facing a claim of injury in or near a parking lot, are you on the hook?  Let’s start with the basics.

In order for an injury to fall within the scope of California’s workers’ compensation system, as opposed to general civil tort, the injury must arise out of and occur within the course of employment.  (See Labor Code section 3600.)  This is commonly referred to as AOE/COE.  Generally speaking, injuries sustained during the regular commute to or from work are not compensable, unless they fit into one of several exceptions.

But what about that last stretch of travel, between the car door and the building door?

In the case of Lewis v. WCAB, Lewis parked in a lot leased for employees.  Walking down the street to her office, three block away, she fell.  In finding the claim compensable, the Supreme Court reasoned that there is a “reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done” included within the scope of employment.

The Court went further, noting that once the employee enters the premises under the control of the employer, including employer-owned parking lots, the commute has ended and the scope of employment has begun.  (See Santa Rosa Junior College v. WCAB, footnote 11.)

By providing an employee parking lot, Jasper could very well find himself increasing his liability with every square foot of parking under his control.

At this, Jasper got nervous and decided his plan would have to be changed.  Instead, he would have his employees park on the street and use the entire lot for more obstacles.  After all, he read an article in Wheel Barrels and Workers’ Comp., a very limited-circulation magazine which only exists in this story, which discussed a similar idea.  There, the article’s author discussed two cases.

The first, an unpublished decision by the Court of Appeal, was Sharp Coronado Hospital v. WCAB.  There, the Court held that an employee asked by its employer to park on the street instead of the parking lot was precluded from recovering for an injury sustained while walking from the employee’s parked car to the hospital.  The other, General Insurance Co. v. WCAB, held that an employee struck while crossing the street from his parked car to work could not recover because of the going and coming rule.

Furthermore, he had heard his friend, an applicants’ attorney, grumbling about the panel decision in the case of Sharon Ewegemi v. Oakland Unified School District.  In that case, he understood, a teacher had parked her car on the street and was just a few feet from the door of her school when she turned back to get some papers from her car.  Walking to her car, she tripped and fell in the street.

In denying her application, the Workers’ Compensation Appeals Board reasoned that, until she entered the school and began working, she was still engaged in her commute, even up to a few feet away from the school.

Jasper’s new plan could put all this into use, he though, by having his employees cross the obstacle course before entering the front door.

Now, bear in mind, dear readers, this is my brother-in-law, so things had to be stated delicately, or else every Thanksgiving Dinner would include Jasper mumbling about how he hopes I come see his snake-pit.  So, I had to explain that his new idea wouldn’t exactly work, either.

Why wouldn’t Jasper’s idea work?  Come back Wednesday to find out!

So, there I was, sitting in my Uncle Olaf’s kitchen as his possibly-independent-contractor scrubbed his prize-winning giant Clams, getting them ready for sale.  Uncle Olaf was beginning to get worried – what if his upstart nephew was right and, even though Uncle Olaf didn’t get insurance for the Clam Cleaner, an employment relationship was formed.  After all, if Mr. Clam Cleaner was an employee, Uncle Olaf would be liable for any injuries sustained by Mr. Clam Cleaner, and, having lost both hands to giant Clam Bites before, was very much aware of the risks involved.

“I’m pretty sure he is an independent contractor,” said Olaf.  Just then we heard a loud *SNAP* as a clam slapped shut, and the young gentleman in the Clam tank yanked his hand away just in time.  Uncle Olaf breathed a sigh of relief and said “but he signed a contract… the contract says ‘I am not an employee; I am an independent contractor.  I will clean Olaf’s clams.  And if I should lose a hand or two, I will only sue the clam or clams that got me, and not poor Uncle Olaf’.”

I shook my head and told poor Uncle Olaf of the panel decision in the case of Leonard Key v. Los Angeles County Office Education. Leonard Key had signed a contract stating that he was an independent contractor paid to teach music lessons at one of the Los Angeles County schools.  However, the Workers’ Compensation Judge found that Mr. Key was, in fact an employee, and his injury was compensable.  Workers’ Compensation in California is compulsory, after all, and Mr. Key was simply an employee by any other name.  And, after all, the farmers in the Borello case, discussed last time, had signed a contract as well.

The most important thing for Uncle Olaf to remember is the guiding policy of workers’ compensation – to shift the costs of industrial injuries to the produces and not the consumers/public.  Even the Legislature might make efforts to amend the law, defining a contractor vs. an employee based on a long list of factors.

So, dear readers, what should Uncle Olaf do?  Before the young gentleman sticks his hand into another one of Uncle Olaf’s clams, should Olaf pull him out of the tank and cease operations until he can get a workers’ compensation policy?

And so, dear readers, the story picks up just where it left off – there I sat in my dear Uncle Olaf’s kitchen as he ground his hooks into his wooden table, nervously watching the man he hired to clean his prize-winning clams for his Clam sale business, who he thought was his independent contractor but was actually allegedly (your humble blogger is a zealous defense attorney, after all) an employee, place his hands inside the snappiest of Uncle Olaf’s prize-winning clams.  “Scrub from the outside!” he shouted, but the young gentleman cleaning the clams couldn’t hear him…

The California Supreme Court issued its opinion in the case of S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989), outlining the proper analysis for determination of the question of employment or independent contractor status.  S. G. Borello & Sons owned farmland near Gilroy (a place with a wonderful Garlic Festival).  Although they kept regular employees for the various crops grown on these farms, for cucumbers, the nature of the market dictated another approach.  Cucumber harvesting was contracted out to various migrant farm-worker families.

The families were provided with the opportunity to lay claim to a certain amount of plots of cucumbers, were provided with crates into which to harvest the cucumbers, but were otherwise left to their own devices.  The cucumbers were sold to a pickle company in the area, and the profits were shared between the land-owners and the harvesters.

For the multi-week cucumber harvesting season, the harvesters were responsible for taking care of the cucumbers, picking only those ripe and ready for picking, and generally seeing about maximizing profits.  The most aggressive task-masters in S.G. Borello & Sons employ found themselves absolutely powerless at the edge of the cucumber plots, for no employees dwelt there – only independent contractors.

That is, until, the Department of Industrial Relations issued a stop-work order.  Finding that the independent-contractors were actually employees, and uninsured employees at that, the DIR went on the war path against poor Mr. Borello and his sons (as well, effectively, against all other farmers in the Gilroy area that adopted the same practices).

Borello’s argument before the Supreme Court was simple – unlike other crops, cucumbers required a degree of knowledge and skill for harvesting, and the harvest workers were compensated for the final product and not the means of rendering service.  But the Supreme Court found that other factors, primarily found in the Restatement Second of Agency, play into the analysis as well, among them:

1. The right to discharge at will, without cause;
2. Whether the workers is engaged in a distinct occupation or business;
3. Whether the occupation, in that locality, is typically performed by a specialist without supervision;
4. The skill required in the particular occupation;
5. Whether the worker supplies the instrumentalities, tools, and the place for doing the work;
6. The length of time for which services are performed;
7. The method of payment (hourly or by task);
8. Whether the work is part of the regular business of the principal; and
9. The intent of the parties.

The Borello Court noted that “under the [Workers’ Compensation] Act, the “control-of-work-details” test for determining whether a person rendering service to another is an ‘employee’ or an excluded ‘independent contractor’ must be applied with deference to the purposes of the protective legislation.”

The Court also noted that the workers made minimal investment in their work – no heavy equipment but just basic tools.

Other cases followed too.

In the case of Jose Luis Lara v. Workers’ Compensation Appeals Board (2010), for example, the Court of Appeal examined whether a garden-variety handy-man could be an independent contractor.  Lara sustained a pretty serious injury while doing work for a small shop called Metro Diner.  Metro Diner didn’t have Lara covered by its workers’ compensation policy because he had no regular employment – he was called up to do odd work such as trimming bushes along Metro Diner’s roofline.

Lara provided his own equipment, paid his own taxes, and, although he was paid by the hour, was hired by the job rather than on a general basis.  Nor did Metro Diner set Lara’s hours – he was just told to come early or late to avoid interfering with the operation of the Diner.

The workers’ compensation Judge found that Lara was an employee, and the Workers’ Compensation Appeals Board reversed.  In affirming the WCAB’s finding that Lara was a contract employee, the Court of Appeal cited Borello.  Specifically, the Court noted that gardening was Lara’s line of work (and not the Diner’s), that Diner could not control the manner of Lara’s work, Lara had his own clients (other than Diner), and Lara had a substantial investment in his business (lots of tools, equipment, etc.).

As Uncle Olaf scratched his head (very carefully, mind you, as those razor sharp hooks hurt!), I could see that he wasn’t convinced.  His prize-winning-hand-eating-giant-clam-raising mind was working.  What else did Uncle Olaf think he had up his sleeve?