Search Results

Keyword: ‘Visiting California for the Workers’ Comp – Part’

California Has No Jurisdiction Over Another Ohio Pro-Sports Case

January 10th, 2014 No comments

Are you tired of pro-sports cases? No? Good!

Today’s post is on the subject of Dan Fike, and, more to the point, his claim against the Baltimore Ravens/Cleveland Browns.  Mr. Fike was a professional football player from June of 1985 to December of 1992.  He sought to have his industrial injuries addressed under California’s workers’ compensation system, alleging a cumulative trauma to the head, neck, back, shoulders, and other body parts.

The defense was one typical of such cases: California did not have jurisdiction.  To support this defense, the Cleveland Browns provided evidence of self-insurance and extra-territorial coverage.  Testimony also established that between 1985 and 1992, applicant played only nine games in California.  Evidence also showed that no contract was entered into in California.

The WCJ found that, despite applicant’s 95.2% permanent disability, California had no jurisdiction under Labor Code section 3600.5.

On reconsideration, applicant argued, among other things, that the WCJ should have focused on the employer’s activities, rather than the employee’s in determining whether the employee was temporarily in the state.  After all, if the employer is regularly active in California, and the employee was just one of many cogs in the state, California should be able to assert jurisdiction over the claim, right?

No.  The answer is no.  Labor Code section 3600.5 is essentially a deal – a trust, a conspiracy between one state and another that says we won’t squeeze your employers for every penny if you won’t squeeze our employers for every penny, within these particular guidelines.   More to the point, even California understands that there are limits to how much your can rob visiting employers before employers stop visiting.

The WCAB denied applicant’s petition, and confirmed that employers from Ohio can safely send their agents into California, without fear of ever needing your humble blogger’s services.  The Court of Appeal denied applicant’s petition for a writ of review.

Now, interestingly enough, we have a statutory limit, aside from Labor Code section 3600.5(b), to such a claim at this point (maybe), and that’s subsection (c).  3600(c) NOW says that if the injured pro-sports athlete was hired outside of California and the employer has insurance outside of California, California does not have jurisdiction if the last year of the athlete’s career had less than 20% “duty days” in the Golden State.

Your humble blogger doesn’t have all the facts for this particular case, but 3600.5(c) is definitely a section worth exploring if you’re defending against a pro-athlete claim.

Categories: Uncategorized Tags:

Bengals Escape California WC Jurisdiction

June 24th, 2013 No comments

Are you sick and tired of that gloomy intersection where pro-sports and workers’ compensation reluctantly meets?  Well too bad, because there’s more!

Now, I’m not going to bore you with all the details in the recent en banc decision from the Workers’ Compensation Appeals Board, Wesley Carroll v. Cincinnati Bengals.  Here is the skinny on that case: injured pro-sports player Wesley Carroll filed a claim in California after playing some 6 games in California (out of a total of 48; 12.5%).

The Workers’ Compensation Appeals Board found that one of the teams, the Cincinnati Bengals, was exempt from California’s crushing, ruthless, and back-breaking workers’ compensation system thanks to that coveted escape route of Labor Code section 3600.5.

As you may recall, section 3600.5 allows an out-of-state employer to escape California comp jurisdiction if:

  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.

Ok, so, why do you care?  After all, it looks like these claims might go the way of the dodo soon enough if certain legislation makes it through the Sacramento maze.  And, even if that fails, there are about 1,700 pro-football players in the United States, some of which are employed in California.  Compare that to almost 16 million people employed in California alone.  Why does this opinion matter to those of us who don’t represent or handle pro sports cases?

I’m glad you asked! (You did ask, right? This slowly unraveling blogger could have sworn he heard a voice ask…)

If we forget about the fact-specific ruling of the Carroll opinion, what is the average person left with?  The WCAB is telling us, in a binding authority opinion, the following:

A person who spent 12.5% of his time in California and the rest employed elsewhere is in the state only temporarily.  As is 15.7% (5 of 32 games played for the Bengals).  In fact, the language of the opinion lends itself to the theory that, even if applicant had spent 99% of his time in California, so long as he had the intent to leave California after his task was completed, he could still be regarded as only temporarily within the state.

Another holding to keep for future need is the WCAB’s opinion with respect to Ohio.  The WCAB here concludes that Ohio recognizes the extraterritorial provisions of other states; and that Ohio exempts California employers and employees from its own workers’ compensation system, thereby satisfying the elements of section 3600.5.

So, if you’ve got an Ohio employee temporarily in the state for a conference, recruiting, training, or a short-term project, you can rely on this opinion to help you raise the 3600.5 defense.  (Note: in a similar case, California jurisdiction was denied based on a forum selection clause.  See: Dennis McKinley v. Arizona Cardinals)

Now here’s something interesting – the WCAB ordered the Bengals dismissed and sent the matter back down to the Workers’ Compensation Judge for further action on this issue.  But what could be left to litigate about?  Well… there’s also the New Orleans Saints.  The opinion doesn’t offer much about the fate of the Saints, but it will be interesting to see the defense the Saints intend to mount (if any).

Categories: Uncategorized Tags:

Sacramento Moves to Limit Pro-Sports Comp Liability

March 8th, 2013 No comments

The Workers’ Comp thunderstorm in pro-sports paradise continues, as players and teams struggle over whether players can collect workers’ compensation benefits in California after playing one game or attending a training session here.

It looks like the Los Angeles Times has decided to focus its wrath and anger on Assembly Member Henry T. Perea (D – Fresno), for introducing Assembly Bill 1309 which would exempt professional athletes in the fields of baseball, basketball, football, hockey, or soccer if the employee is temporarily in the state if he or she spends less than 90 days in California in the year prior to the date of injury (whether specific or cumulative).

Far be it from your humble blogger to question the wise sages of Sacramento.  After all, he is but the humblest of the humble, both with respects to his blogging and his citizenship.  But, unlike the LA Times, this bill does not go far enough.

I might alter a child’s world by explaining to him that I’m not actually taking his nose, but I think my beloved readers have a firm grasp on the concept that California is not particularly business friendly.

I would submit to you, my readers, that this bill does not go far enough.  Instead of limiting itself to some sports, the bill should be expanded to include all visiting employees, whether here for a 10-day project or a 1-day conference.  Programmers and hospitality service specialists don’t make the headlines the way quarterbacks and goalies do, but how would you like to hire someone in North Dakota and have them attend a 3-day training seminar in California, only to claim a cumulative trauma immediately prior to retirement twenty years later?  And mind you, my dear North Dakota-an (esteemed gentleman or lady from North Dakota), you’ll be paying California dollars on the workers’ comp, not North Dakota dollars.

Right now, the professional sports teams are trying to get this thing passed in Sacramento, and they may or may not succeed.  Imagine if they can’t – imagine if the sports teams are stuck paying out the big bucks for each player looking for a retirement bonus.  At a certain point, wouldn’t it be cheaper to just boycott California games?

As grand as California is, every state is a good state for a training camp, and every state is a good state for a game.  The 49ers will just have to build a new stadium on the other side of the Arizona border, and the Raiders will have to host games on a floating stadium 10 miles out to sea.

Instead of sending our fearless governor to other states to make this state more attractive, perhaps we could start with baby steps – don’t punish non-California employers for visiting California (let alone moving here!)

Categories: Uncategorized Tags:

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

March 8th, 2012 No comments

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

March 7th, 2012 2 comments

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.

Visiting California for the Workers’ Comp – Part 1 of 3

March 6th, 2012 2 comments

California workers’ compensation does not often get attention from the world at large.  Most people work, some people get injured, and the lawyers usually fight it out – your typical newspaper or anchor will not discuss workers’ compensation because of its narrow application.  But then, something happens now and again, which shines a flood-light onto the swamp, and sends all of workers’ compensation’s dirty little secrets scurrying for cover.

One such light-bringing event was the front-page story of the Wall Street Journal (this one is behind a pay-wall), which covered, at length, the extent to which small hospitals go to perform expensive and often unnecessary treatments, using an army of lien-representatives to exploit the weakness of California’s workers’ compensation system.  Another is the problem plaguing professional sports.  Your humble blogger had the privilege of summarizing the problem for Lockout Lowdown, a sports law blog, some time ago.

The problem faced by professional sports teams is very real – players will have a lengthy career of several years, play as little as a single game in California, and then file a claim for a career-long cumulative trauma, seeking California benefits.  Often enough, the player’s only contact with California is the one game.  This was the case with Cleveland Crosby, who played between 1980 and 1985, and played a single game in California in 1982.

In Injured Workers’ Insurance Fund of the State of Maryland v. Workers’ Compensation Appeals Board (2001) 66 Cal. Comp. Cases 923 (writ denied), the WCAB held that, because Cleveland Crosby played a game in California while employed by the Baltimore Colts, California had jurisdiction over the Colts for Applicants cumulative trauma injury.

Defendant fought back, naively invoking common sense and reason before bringing out the big guns of Labor Code section 3600.5(b). But Insurance Fund didn’t have the right ammunition: it did not provide certification of reciprocity with California, and the insurance coverage did not appear to cover out-of-state injuries.  Because the defendant in this case failed to prove reciprocity or extra-territorial coverage, applicant prevailed.

But don’t lose hope! Come back tomorrow for Part 2 of 3…

COA: Fraud Conviction Does Not Bar WC Benefits

November 13th, 2017 1 comment

Happy Monday, dear readers!

You know, there is this wonderful movie that is not very well-known.  It’s called Johnny Dangerously, and therein lies a wonderful quote by the titular character: “Remember kid, crime doesn’t pay… well, [as Mr. Dangerously climbs into his ill-gotten limousine] it paid a little.”

That seems to be the lesson in a recent Court of Appeal decision, regrettably published as of November 1, 2017: Ford v. WCAB.  The Court of Appeal ruled that despite a conviction for fraud, if an injured worker can establish compensable industrial injury independent of the fraud, he or she is still entitled to benefits.

Applicant crushed one of his fingers in a car door while working, and sought workers’ compensation benefits.  In 2008, he was diagnosed with complex regional pain syndrome by a neurologist.  An AME examined him in 2009 but applicant refused to submit to grip strength testing, and the AME noted that applicant would not cooperate in an exam of his left upper extremity.  When visiting his treating physician, applicant would wear a sling.

Now comes the fun part!

Surveillance caught applicant removing his sling after doctors’ visits and driving his car, using his left hand to open the door and steer.  He was even videotaped using his left hand to carry a bag of groceries, and on another occasion videotaped driving to an appliance store where he lifting a washing machine into the back of the truck he was driving!

After the DA investigated, charges were filed and ultimately plead guilty to violating Insurance Code section 19781.4 and was placed on probation and ordered to pay $9,000 in restitution.

However, as the criminal case proceeded so did the workers’ comp case, and, despite the videos, the AME concluded that applicant lost most of the function of his hand, reducing it to a claw-like appendage.  A WCJ relied on these conclusions to issue an award of 70% PD, and the WCAB denied reconsideration.  When the employer sought reconsideration, this decision followed.

I’ve spoken at length about this issue with applicants’ attorneys on numerous cases.  The position is almost always the same as the reasoning in this Court of Appeal decision: just because he lied or “exaggerated” his limitations doesn’t mean he wasn’t actually injured.

Well, here’s the problem with this line of thinking.  QME examinations are not conducted in silence.  The QME and the PTP ask questions, inquire as to subjective complaints, and assume cooperation and genuine effort during the exam.  Unless they are performing an autopsy, the doctor has to rely on the information provided by the patient/applicant.

Once you have been established as a liar – particularly when there is a conviction on the books – the credibility is shot.  Just about any physical exam or diagnosis is going to rely at least in part on the credibility of the patient, especially when it’s something like losing almost all use of the hand, rather than an objectively verifiable injury (such as a fracture or amputation).

A conviction for fraud should carry more weight in California than this case suggests it does.

So, while crime might not pay, in workers’ comp, it pays a little.

Categories: Uncategorized Tags:

Orange County Denies WC Benefits to Deputies Injured During Vegas Shooting

October 30th, 2017 No comments

On the night of October 1, 2017, a person who will not be named so as to avoid bringing more notoriety to a mass murderer,  opened fire on a crowd of concert goers in Las Vegas, Nevada.  It was a mass shooting in which 58 people were killed and over 500 were injured.

Among the crowd of concert goers was a number of off-duty Sheriff’s Deputies from Orange County, California.  These deputies quickly sprang into action, assisting with first aid, evacuation of concert goers, and guarding the perimeter as the confusion cleared and the crisis came under control of first-responders.

Without a doubt, the events of October 1, 2017 ranged from fatal for some, traumatic from others, and, of course, shocking the country as it watched.

Now, four of those Sheriff’s deputies have filed workers’ compensation claims in Orange County, seeking compensation benefits as a result of their exposure during the mass shooting, including psyche and physical injuries.  Fair warning, dear readers, the comments are nothing short of poison, so read them at your own peril.

Part of the issue here is, of course, policy – does the Orange County Sheriff’s Office want its deputies to spring into action as peace officers when they are not in California?  Would the same want Nevada’s visiting peace officers to spring into action and assist?

The other question is, of course, one of law.  Should a claim for injuries sustained by off-duty deputies outside of the state, let alone the county, be compensable?

Labor Code section 5305 provides for jurisdiction injuries sustained outside of California if the applicant is regularly employed in California.  Section 3600.5 provides the same if the injury is “arising out of and in the course of employment outside of” California.

Well, last week, Orange County denied the claims.  Citing Labor Code section 3600.2(a), “[w]henever any peace officer … is injured, dies, or is disabled from performing his duties … by reason of engaging in [your typical cop stuff] anywhere in this state … but is not at the time acting under the immediate direction of his employer …” he gets the WC benefits.  In other words, off duty cops in California are covered if they act as on-duty cops and sustain injury.

Orange County is taking the position that this statute excludes the same OUTSIDE of California.

As much as your humble blogger hates to admit it, these appear to be legitimate claims, although, of course, the question of nature and extent seems open still.  In reading this section, I would interpret 3600.2 to limit its application to clarify that off-duty cops get the same coverage as on-duty cops.  After all, injuries sustained outside of California by California employees while working abroad are still compensable.

We have provided WC benefits to those California employees injured on a film set in Hawaii, after all.  To interpret this statute as some sort of limitations appears to your humble blogger to be a stretch.  In fact, it seems pretty clearly worded to expand the scope of coverage rather than to limit it.  But perhaps we will see some new, very narrowly tailored, law come out of this situation.

Special thanks to Jeff for sending this story my way!

Categories: Uncategorized Tags:

One Day Too Late to File Sports CT Claim!

December 2nd, 2015 No comments

Happy Wednesday, dear readers!

My plan for today’s blog post was to provide you with a list of 10 reasons why, when you have something you need to do, procrastination is not acceptable.  Unfortunately, I kept putting this assignment off, so I didn’t get to it in time for today’s post.

Instead, I bring you the case of Walker v. WCAB.  By way of background, back in 2013, California was in a middle of a mass hysteria of blood-lust for professional athletes.  Basketball players were herded together, only to be tarred and feathered.  Angry mobs descended on hockey players, pouring warm water over ice skating rings to create potholes, and burning copies of the Mighty Ducks.

In response, to pacify the angry hordes taking to the streets, the Legislature offered Assembly Bill 1309, which limited out-of-state professional athlete claims for workers’ compensation.  As part of the language of the bill, it “would provide that these changes apply to all pending claims for benefits filed on or after [Sunday] September 15, 2013, as specified”.

In Walker, it looks like the applicant filed his application on Monday, September 16, 2013.

The parties were in agreement that, if AB1309 applies, the claim is barred, but applicant argued that CCP section 12a and section 10508 (allowing an additional day to perform an act if the last day to act falls on a Saturday, Sunday, or Holiday), means that the claim should not be barred, because, as the law went into effect on a Sunday, all those injured professional athletes should have an extra day to file their claims.

The WCJ agreed, and found the claim is NOT barred.

Well, on appeal, the WCAB reversed, finding that CCP 12a and section 10508 turn on the last day to perform an action.  To the WCAB’s reading, AB1309 did not provide a last day to perform an act, but rather applied additional conditions to filing a claim, such as requiring a minimum amount of time in the State of California prior to filing a pro-sports CT claim.  Accordingly, 12a and 10508 do not apply.  The WCAB ruled the claim is barred.

The COA denied review of the WCAB’s ruling.

Now, your humble blogger is all in favor of claims being denied, but let’s think about this one for a second – AB1309 did not explicitly provide a statute of limitations, BUT it did create conditions which put an expiration date on certain claims.  Given this, isn’t there an implied “last day to perform an act”?  Because the law went into effect on a Sunday, Mr. Walker’s last day to file his application would have been a Saturday, which would have extended his last day to file, as applicant argued to begin with.

Another thought, dear readers — since the world has not ended, and we’re all still here, is it time to consider expanding the effect of AB1309?  Why just professional athletes?  Why only some sports?

What about the guy visiting California to attend a conference in the insurance industry?  What about the lady who is in California temporarily to conduct a job interview of a potential hire from a local law school, only to claim a CT in California for her carpal tunnel syndrome?  Perhaps we need legislation to require a minimum amount of time in California for ANY CT claim.

Perhaps you’d be interested in joining your humble blogger’s fantasy legislation league?

Categories: Uncategorized Tags:

Social Security Finding of Incapacity Sufficient for Death Benefits

November 6th, 2013 No comments

Death benefits – hardly a cheerful subject, and made no less gruesome by the fact that, as the body departs, the haunting specter of dependent benefits lingers.

Take, for example, the recent writ denied case of Jamie Xelowski (Dec.)/J. Campbell v. Community Health Network.

The facts are pretty simple – Jamie Xelowski sustained an industrial injury while employed by the Community Health Network/City and County of San Francisco, and, unfortunately, passed away as a result of her injury.  Her daughter, J. Campbell (“JC”), sought benefits under Labor Code section 3501, which provides that a child of any age found by any trier of fact to be physically or mentally incapacitated from earning, shall be conclusively presumed a total dependent.

And, as Labor Code section 4703.5 provides, in additional to the total death benefit for all of applicant’s dependents, the “physically or mentally incapacitated child” is entitled to temporary disability benefits until his or her death.  In short, a defendant is better off having an injured worker be found 100% permanently disabled rather than pass away.  Yes, yes, I know – I don’t like writing about this stuff too much for the very reason that it makes your humble blogger feel dirty for calculating how to minimize liability by wishing for one death or another.

So, back to the Xelowski case – JC had sought and received social security benefits in October of 2010, after her application was initially denied on May 5, 2010.  JC had appealed the first result, and her case was reviewed by an analyst and a physician.  There was no appearance on the part of JC at any Social Security Administration Hearing.

JC argued that the finding by the Social Security Administration triggers the effects of Labor Code section 3501, in that she is “a child of any age found by any trier of fact … to be physically or mentally incapacitated from earning.”  Defendant, not wanting to be stuck with an employee’s daughter’s lifetime of temporary disability benefits (it’s like having an employee on the payroll but not getting any work out of him or her) decided it might be worth a billable hour or two to fight.

The WCJ was persuaded – what happened before the SSA was the equivalent of a Panel Qualified Medical Evaluation – there was no judicial officer involved.  So, while JC might still prove her incapacity, mentally or physically, the presumption was not there yet.  Additionally, the finding still allowed JC to earn some income, so this finding did not satisfy the requirements of 3501.

Well, the WCAB didn’t agree – the panel of commissioners found that the Social Security Administration’s finding of disability triggered section 3501.

Now, your humble blogger has a bone to pick, but not with this particular case.  The Commissioners properly  applied section 3501, as it is, and when your humble blogger has to feed the meter in San Francisco, he can explain to his visiting friends why the meter makes more per hour than he does (San Francisco is self-insured, after all).

But, the proverbial bone your humble blogger has to pick is with the language of the statute itself.  Section 3501 conclusively presumes a fact (mental or physical incapacity) without affording the defendant fair notice of a hearing and an opportunity to be heard.

Picture, if you will, some poor unfortunate soul attending a hearing before the Social Security Administration, with proof of physical or mental incapacity, and some attorney like your humble blogger kicking down the hearing room doors and demanding to be heard because the poor soul’s mother or father works for his client.  “Her mother might die on the job, some day, and I want to make sure you don’t make a ruling that would affect us…”

Exactly – insanity.  The conclusive presumption should be done away with – if a person is found incapacitated from earning, then those same documents can be used to prove the case again before a workers’ compensation Judge.  After all, the SSA is giving away other people’s money, and might not be as zealous in its defense as a client with a million dollars on the line (picture $500 per week for 40 years).

If there is time for public comment at the next midnight reform session, perhaps we can bring this up?

Categories: Uncategorized Tags: