WCDefenseCA

Happy Wednesday, dear readers!

It appears your humble blogger was misinformed with his post from last Friday.  Mr. Juan Pedro Gaffney, now, Commissioner Gaffney was confirmed by the senate on August 29, 2018, with 25 Ayes and 11 Noes.

Commissioner Gaffney will now serve for a term of six years.

That being said, I now bring you today’s blog post which will hopefully distract you from your humble blogger’s most embarrassing misstep…

Since it’s Wednesday, dear readers, I’ve decided I will grant you most dearly held wish.

For those of you tuning in from outside the swamp that is our beloved workers’ compensation system, I’m going to let you in on a little secret.  If you work your way into the confidence of any member of California Comp, and you offer him or her three wishes, without missing a beat each would tell you honestly: “If I had three wishes, I would wish for three blog posts on the going and coming rule.”

Well, your humble blogger lives to please, so here we go!

As is well known, the going and coming rule is one that applies inside and outside of workers’ comp: if you’re on your way to work or coming home from work, injuries sustained during the commute are not considered “industrial” and are not compensable.  Nor is damage caused to third parties by employees during the commute to or from work triggering of the doctrine of respondent superior.

That being said, there are more exceptions to this rule than reasons to use cast iron skillets (as opposed to, let us say, more pedestrian cooking methods, such as Teflon or stainless steel).

So, today’s blog post is about one of those times when none of the exceptions applied.  Raquedan v. WCAB, a writ denied case, was decided earlier in September, denying review of the WCAB’s decision to affirm a WCJ’s take nothing order.

Decedent’s widow sought death benefits after her husband was killed in an MVA returning to work from a lunch break he had taken at home.  Decedent worked as an accountant and sometimes took work home with him while he ate lunch at home.  The WCJ found the claim to be barred by the going and coming rule, but applicant appealed arguing that the “personal comfort” and “dual purpose” exceptions, one or both of them, should have rendered the claim compensable.

The WCAB disagreed.  The personal comfort doctrine might make a commuting injury compensable if applicant was rendering a service to his employer.  However, as the lunches were unpaid and applicant could have eaten lunch at work, and it would have been all the same to the employer, the exception did not apply.

With respect to the “dual purpose” exception, the WCAB was not convinced either.  But the only element of “work” in applicant going out for lunch was that the decedent sometimes worked at home.  But working at home for the pure convenience of the employee is insufficient to trigger the dual purpose exception.

The Court of Appeal denied review of the WCAB’s decision.

One of the key pieces to take away from this is that the employer-provided testimony that there was no work that applicant needed to do at home – all work could be done in the office.  Many employers allow their employees to occasionally work from home as a matter of convenience to them.  It would be very disappointing if cases like this went the other way, and employers realized they shouldn’t offer the option to their workers lest they become general insurers for all injuries that occur at or away from work.

Onward to Friday, dear readers!

Happy Monday, dear readers!

Did you know, before members of the defense community go to sleep, we check underneath our beds for the most terrifying monster of all: the 90 day presumption!

No, not really, but the 90-day presumption has some pretty vicious teeth to it.  Labor Code section 5402(b) provides that “if liability is not rejected within 90 days after the date the claim form is filed … the injury shall be presumed compensable under this division.”

The case I bring to your attention today is that of Quintanilla v. Pronto Express & Services, Inc.  Quintanilla was a death claim in which the decedent’s family sent a claim form to the deceased worker’s employer.  The claim was ultimately denied, citing on the “going and coming” rule that we all know and love so much.  In terms of the particular facts, Mr. Quintanilla was driving home from work, and had stopped at a store to pick up food at the request of his wife.  He was murdered by a gunman during the stop.

However, in a cruel twist of fate, at an AOE/COE trial, the WCJ found that the denial came too late!

In the decision, the WCJ noted that the claim form was served on defendant on July 20, 2016, but the denial was not issued until October 31, 2016, 103 days later.  The WCJ reasoned that since the facts of the case, especially those giving rise to the coming and going defense, were available to defendant within those 90 days, the claims was presumed compensable.

The frustrating thing about this is, of course, that had there been a timely denial, applicant’s claim would likely have been barred.  Because the denial issued 8-13 days later (depending on if you apply the 5-day mailing rule for the claim form) the defendant was required to provide death benefits.

Now, your humble blogger is turning towards the stormy seas of speculation at this point, but if I had to venture a guess, without any actual knowledge, I would think that in these cases, the reason for the late denial is a slow response from the employer.  By failing to immediately act upon the knowledge that an industrial claim was being made, the employer usually puts itself in a disadvantageous position.

So, this seems like a perfect opportunity to remind my beloved readers (and invite all of you to tell your friends) not to sit on their rights or defenses – problems don’t go away by themselves, they just come back as bigger, more expensive problems.  If there’s a real or potential claim out there, notify your insurer or talk to a workers’ compensation defense attorney right away.  No matter how meritless the claim might seem on its face, the draconian effect of 5402 can be biting indeed.

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!)

The “going [to work] and coming [from work]” rule is a subject that surfaces now and then in the world of workers’ compensation.  After all, injuries can happen anywhere, so why not while going to or coming from work?

The defense generally provides that an employer is not liable for workers’ compensation benefits for injuries sustained in transit between home and work or work and play.  But the defense is not a stone wall, smooth and solid and impenetrable, but rather a chain-link fence, with plenty of gaps, patches, and weaknesses.

In the case of Jesus Felix Castro v. State of California, Department of Forestry and Fire Protection, applicant was a seasonal firefighter, who sustained a devastating injury as a result of a catastrophic car collision while he was on his way to work.  The attorney for the defense naturally raised the going and coming rule – on the way to work means on the way out of the California workers’ compensation system, generally speaking.

But the defense failed.

Applicant presented several witnesses, Mr. Castro’s co-workers, who testified to the effective requirement of bringing one’s own car to work.  There was more than one fire station to staff, and a firefighter never knew where he or she would end up working that day.  As such, employees had to bring their own car to work to get from Station A to Station B, as necessary.

The workers’ compensation Judge and the Workers’ Compensation Appeals Board both held that the injury was compensable.

Bear in mind, learned readers, this holding is not new or off-the-cuff.  This holding was also issued in Smith v. Workmen’s Comp. App. Bd. (1968) “Surely in this day of a highly motorize society we cannot cast the going and coming rule as a protective cloak over the shoulders of the employer who, for his own advantage, demands that the employee furnish the car on the job.”

But this case does serve to remind employers, especially those in the private sector, that there is no such thing as a free lunch – money saved in shifting the cost of the travel between work sites to the employee can cost a lot of money in the form of an otherwise barred workers’ compensation claim.

If an employee “lives” far away from where he “works” is he ever off duty?  The answer, according to the Workers’ Compensation Appeals Board and the Court of Appeal, is yes!

In the case of Dann Peter Shubin v. Workers’ Compensation Appeals Board, applicant worked as a pilot for Southwest Airlines, and was based in Oakland, even though he and his wife “lived” in Pasadena.  Applicant would arrange his schedule to have weekends off and would stay with friends or in his van between flights.

Under Southwest Airlines’ scheduling scheme, after a flight, reserve pilots like Mr. Shubin would receive a 9-hour “rest” period during which they could not be recalled for more work.  Applicant had just started one of these rest periods and decided to visit friends in Winters, a town roughly an hour away.

En route, applicant was in a car collision, and subsequently filed a claim for workers’ compensation benefits.  The Workers’ Compensation Judge found the injury AOE/COE (arising out of employment and within the course of employment), and defendant filed a petition for reconsideration.

Because the WCJ did not submit a report on recommendation, we will never know his reasoning.  Never the less, the WCAB studied the issue and granted reconsideration, recognizing that the coming and going rule applied to this case.  [If the going and coming rule does not apply to an employee who, by company-wide policy, can not under any circumstances be assigned any tasks for the next 9 hours, I don’t know where it would apply.]

The “going and coming” rule is one of those rare instances where common sense and reasonability poke their way through the shroud of California’s Workers’ Compensation system.  Essentially, the rule provides that injuries sustained going to or coming from work are not covered by workers’ compensation.

There are exceptions to this rule, of course.  These exceptions include “special missions” and “commercial travelers,” the details of which are the subject of a future post.  Because applicant was officially and actually off-duty for the next 9 hours, the going and coming rule applied and applicant’s claim was barred.

Applicant was a free man living in a nation of laws – he chose to “live” in Pasadena, he chose to “work” in Oakland, and he chose to visit Winters on the night of his unfortunate car accident.  The only alternative outcome for this case would have been to hold that if an employee works outside the four walls of his home, he is always on duty by virtue of being on the other side of his front door.

Dear readers, by no means am I the type of man to tell others how to run their businesses.  But it is worthy to note that in this case, Southwest was saved by having a company-wide policy of duty/off-duty pilots and sticking to that policy.  No doubt if applicant could have offered evidence that pilots were occasionally called back to duty during their “rest” period, in violation of this rule, the case would have turned out quiet differently.

First off, dear readers, a very happy Martin Luther King Jr. day to one and all.

But speaking also about workers’ comp for those stuck at work today…

As a new week opens up, the world of California workers’ compensation continues to rock and sway from the start of the new decade. 

Among the topics coming up with some regularity is AB-5.  Several industries are valiantly trying to stop some or all of its implementation through the courts.  Meanwhile, there is at least some stirring of activity in Sacramento trying to blunt at least some of the impact of AB-5, which raises the bar almost insurmountably for retaining an independent contractor rather than, often unwillingly, hiring an employee. 

Assembly Bill 1925 has been introduced by Assemblyman Jay Obernolte to limit the application of AB-5 and create an exemption for small businesses.  AB1925 would define a “small business” as independently owned and operated, not dominant in its field of operation, having fewer than 100 employees, and have an average of gross receipts at $15 million or less for the previous three years. 

The bill was just introduced about a week ago, so it’s going to take some time for it to be considered by the legislature, let alone voted upon or signed by the Governor.  However, your humble blogger, high upon his soap box, highly endorses any movement into freeing up businesses and workers to make their own contracts and agreements. 

Please bear in mind, dear readers, as good as it might have felt for the folks in Sacramento to strike a blow against “evil” UBER, the fall-out from AB-5 has not been a feather in anyone’s cap.  I’m sure the attorneys litigating this in the courts are laughing all the way to the bank from the billable hours involved, but the news has also included freelance journalists being laid off.   Accordingly, any reduction in the legislation’s scope is gain. 

Here’s hoping AB1925 will see swift review and approval by Sacramento!  

Welcome back from the weekend, dear readers! Isn’t 2019 flying right by?  It feels like it’s been 2 months since new years’ but it’s actually only been two weeks.  The cold will never stop, the sun will never come back, and in the back of your humble blogger’s mind plays that old song on repeat: “hello darkness my old friend… why are you here it’s 4 p.m. …?”

Anywho, to reward you for your loyalty in readership and discerning taste in subscription (I know that not just anyone is allowed to contaminate your e-mail inbox), I am going to tell you a little workers’ compensation secret.  If a defendant is providing a certain type of medical treatment, it is not allowed to stop unless there’s a change in medical circumstances.  That’s right! Look through the Labor Code and you won’t find it; search through the regs but it isn’t there!  That’s because this secret is just a figment of some applicant attorneys’ imaginations.  It is a myth, a fantasy, not unlike Keyser Soze, which is why it’s such a well-kept secret, of course.  (To be fair, dear readers, there is one WCJ’s ruling and a no-comment WCAB approval that supports this conclusion, but this is non-binding and has no regulatory or statutory authority that your humble blogger can find; it would appear that the case discussed in this blog post directly conflicts with any guidance provided by the Miramontes result.)

With that in mind, I bring to your attention the relatively recent panel decision in the matter of Gonzalez v. First Presbyterian Church of Santa Barbara.  Therein, an applicant sustained an admitted injury and resolved her case via stipulated award with open future medical.  The case was reopened via petition but that’s not really related to the issue at hand.

Defendant was providing home health care for more than four years.  When applicant’s treating physician submitted yet another request for continued home health care, the request was forwarded to UR which issued a timely denial.  Applicant made a timely request for IMR but also challenged the validity of the UR denial at an expedited hearing.  Defendant raised the issue of jurisdiction based on the WCAB’s decision in Dubon II.

After the expedited hearing, the WCJ ruled that as UR was timely, the WCAB had no jurisdiction to review the decision – it had to go to IMR if it was to go anywhere at all.

The WCAB in reviewing the decision, ruled that a defendant can terminate home health care services if they are no longer necessary, and UR is one method of proving that they are no longer reasonably necessary to cure or relieve from the effects of the injury.

So what’s the lesson to learn here?  Well for defendants it is an old one: UR and IMR trend towards cost containment, and, of course “a trend is your friend.”

But, believe it or not, there is a lesson here for applicants as well.  There is a difference between medical treatment and a medical treatment award.  Just like we all learned in law school (or in preschool for that matter) a promise is different than performance on the promise.

The workers’ compensation landscape is increasingly becoming one where obtaining a medical treatment award is getting easier, but getting actual treatment – whether because no doctor is willing to starve his or her family by accepting workers’ comp fee schedule or because UR and IMR are very aggressive – is getting harder and harder.

So, perhaps there is some sense in applicant attorneys encouraging their clients to C&R their claims.  An aspirin in the hand is worth two on your PTP’s RFA.

Happy Wednesday, dear readers!

Halloween is coming up soon, and as we all know, there is nothing scarier than workers’ compensation! OOOOOOO … penalties… liens… OOOoooOOOooo!

Spooky, indeed, dear readers.

BUT, before you go a trickin’ and a treatin’ you may want to swing by Walnut Creek on Friday, October 30, 2015.

The California Self-Insurers Association is hosting its Fall Conference at the Walnut Creek Marriott and your humble blogger will be in attendance (now is your chance to finally vent about all the puns you’ve been forced to endure in your e-mail in box).

I’ve attended this one a few times in the past and it never disappoints – the speakers are always experienced with the substantive material and talented in their delivery; the subjects are current and interesting; and the bloggers in attendance are always as humble as humble goes.

Phil Millhollon, CSIA Executive President, says that one of the topics attendees can expect to be thoroughly discussed will be on an issue that’s been growing like a “weed” in California and the United States… medicinal marijuana (see what I did there? The kids call Marijuana “weed,” so…)

Marijuana has been a growing issue in California – federally illegal, but allowable on the state-side in certain circumstances.  Reimburseable under workers’ compensation or no?

If you’re going to be around, please stop by and say hello.

One day, dear readers, your humble blogger’s grandchildren and great-grandchildren shall gather by his feet near the fire, and ask, in modest and respectful tones, when and how the modern era began.  And, nodding sagely to his beloved family members, your humble blogger will answer: March 22, 2015.

That is the day, dear readers, when a little-known company named Delphi plans to set course from the Golden Gate Bridge to New York in a driverless car.  As your humble blogger has blogged before, this is not the end of our beginnings, but the beginnings of the end of life as we know it.

Think about that, dear readers – there is a real-life company planning on having a driverless car go from the West Coast to the East.  That’s not exactly a “test” drive on the private course of the Google campus, or a “controlled” jaunt for three miles of free-way under close CHP supervision.  This is the real deal – if a car can travel the length of a country, safely, efficiently, and without incident, it can probably do the job of every single professional driver in the country, from delivery trucks to taxi-cabs.

Now, if you’re in San Francisco, or several other places where the cab-industry is being turned on its head by the youngins’ and their “apps”, you’re probably seeing the modern-day friction between the lefty-San Fran with its dedication to unions and government-monopoly licensing as played out in the world of the Taxi-Cab drivers, and the new “hip,” “cool,” and “dope” trend of the Ubers and the Lyfts – taxi-drivers without many of the things people don’t like about taxi-drivers: lower rates, cleaner cars, ample availability and options, and no need to carry cash – the trip is planned, billed to the user’s credit card, and the transaction completed all over the phone.

But, while all of our friends, from the outspoken activists on Facebook, to the guy on the bus who doesn’t understand that headphones and a book mean you don’t want to talk to a stranger on the bus (Yes, “Jeff”, I’m talking about you!) argue about whether an Uber driver is an employee or an independent contractor, or whether Lyft drivers should have to get a medallion from the city, there is a host of car manufacturers out there, from Google to Volvo, who are manufacturing self-driven cars, which will likely lead to the elimination of a substantial portion of the driver workforce.

Unless you’ve been binging on “I, Robot” you’re not going to be very motivated to demand workers’ compensation coverage for self-driven cars (or trucks, or busses) – just auto and business liability insurance.

Most scientists agree, once the driverless cars are forced to drive in my beloved quasi-home-town of San Francisco, with the one-way streets and the hills and the pedestrians who think the red hand of a cross-walk is meant to be an encouragement, they will experience a computerized form of “rage,” which will ultimately lead to sentience and, roughly, the scenarios depicted in Terminator 1 and 2.

When that happens, dear readers, your humble blogger will be ready to defend civilization, much as he does now.

To sum up – the driverless cars are a coming, and it looks like they’re coming quicker and safer than anything you have heading your way driven by a human.  I think it’s time we started making legislation, litigation, and business plans to suit.

Please note, dear readers, that this blog post should not be interpreted to suggest that there will not be, at some point, a zombie apocalypse or an alien invasion apocalypse, but just that the rise-of-the-machines one seems to be the best bet for the tinfoil-hat crowd at the moment.

Can Serious and Willful Misconduct be expanded to include the actions of a drunk employee?  Can the theory include allowing an employee to remain at work?

That was the question posed by the recent writ denied case of Sandra Ellefson v. County of Los Angeles.

There, the employer was aware that an employee was drinking at work, and had been dealing with a drinking problem for 17 years.  Applicant had seen his drinking, and complained about abusive behavior (pinching, pushing, pulling her hair, stepping on her toes) to everyone short of Santa Clause, including her own supervisors and Drunky McDrunkerson’s supervisors too.

Things moved swiftly, as they often do in government, and four months later applicant still sat facing Mr. Al Caholic’s desk.

The employer’s witnesses, however, testified that they were only informed of the drinking problem, and not the abuse, and that their efforts were focused on getting the poor guy into treatment (FOR SEVENTEEN YEARS).

Ultimately, while walking around drinking Tequila, Sir Drinkalot tripped, fell on applicant, and caused her chair to break, which then in turn caused her to hit her face on her desk.  After resolving her case-in-chief, applicant also pursued Serious and Willful Misconduct penalties, which the workers’ compensation Judge denied.  While the defense was apparently celebrating their victory at Happy Hour, applicants’ counsel filed a petition for reconsideration.

Generally speaking, your humble blogger disfavors rulings or findings that are adverse to a defendant.  But in this case, I can’t help but side with the Workers’ Compensation Appeals Board in its finding that defendant had committed serious and willful misconduct by ignoring the repeated complaints (remember, dear readers, the County of Los Angeles had been “dealing” with Mr. McCrunk’s drinking at work for 17 years!)

There was, however, a dissent: Commissioner Moresi made the point, as was made by the WCJ, that because of the 17 years without any injury, the employer had no reason to expect any injury to other employees.  Al was just being Al, and there was no reason to connect the dots between a habitually inebriated employee and actual injury (if this bomb hasn’t exploded yet, why would it ever?)

In all fairness, this is a valid point – time had effectively proven Mr. Barfly to be relatively harmless.  But, then again, the day before Thanksgiving, each turkey is more convinced than ever that it is loved and perfectly safe, based solely on the events of the preceding 364 days.  We all know that Thanksgiving is coming sooner or later.  The past 17 years were a windfall for the employer – it had allowed a worker to remain perpetually drunk at his post and had avoided the likely consequences of his inebriation: injury to himself or others.

By the by – does no one care that the County of Los Angeles has had an employee at his post, drunk, for the last 17 years?  The opinion even notes testimony that supervisors had noted unfinished work, clear mistakes, and slurred speech.  And now the good citizens of Los Angeles County get to ask their elected officials why the penalties are being taken out of the budget instead of going to another project.

In any case – if you’re an employer, please, please, please don’t let your employees remain at work drunk.   Send them home, discipline them, fire them, get them into treatment – do whatever.  But don’t expose your employees, your customers, or even your management staff to what could easily happen when a person drinks too much.

Cheers!