WCDefenseCA

In California’s Workers’ Compensation system, the standard to establish compensability is fairly low — if you got hurt at work, or your injury is the type that could occur at work, you will likely be compensated.  Most of the fighting in workers’ compensation is really over how much compensation – the deck is usually stacked against the employer from the start of the process.

In this way, the burden placed upon the applicant in the workers’ compensation arena is lower than the negligence requirements placed upon a tort plaintiff.

But a claim for additional compensation for serious and willful misconduct presents a much higher standard (Labor Code § 4553).  In the writ denied case of Flores v. Workers’ Compensation Appeals Board (2011 Cal. Wrk. Comp. Lexis 138), applicant’s efforts to recover under § 4553 did not carry this higher burden.

Flores was a lead mechanic in a tomato cannery and was summoned to the scene of a low pressure steam line that had separated when a clamp came loose.  Ignoring the company safety protocols regarding calling a supervisor to turn off the pipe and giving time for it to cool, Flores went diligently to his repair work until a burst of steam burned his leg.

The theory in this case, which applicant stood firm with all the way to the Court of Appeal, was that his past suggestions, that double bolt clamps be used instead of butterfly clamps to bind steam lines, satisfied the “notice” and “reckless disregard” requirements of § 4553, was rejected by all three courts.  Further testimony showed that butterfly clamps were, in fact, factory recommended for low-steam pipes.

Labor Code § 4553 sets out a relatively higher standard for prevailing on a serious and willful claim, and rightly so.  To justify the conduct that § 4553 seeks to punish and discourage, an employer or its agent would almost have to try or intend to get the applicant injured.

All that happened in this case was what the workers’ compensation system was designed for – Mr. Flores sustained an injury in the course of his duties, and he was compensated generously appropriately.

Fortunately for the tomato canning industry, the Workers’ Compensation Judge, the Workers’ Compensation Appeals Board, and the Court of Appeal all agreed on this last point.

Alright, dear readers, bear with me, because you’re about to get a dose of two-parts nerd and two-parts dork.

For the longest time, Nintendo has had a franchise called “Pokemon” in which the players collect and train fictional monsters.  Well, modern technology has allowed this franchise to go one step further: the Pokemon Go game allows players to use their GPS and a basic map function to search for these monsters in the real world, and to “catch” them by using the phone’s camera function.

If I haven’t lost you yet, dear readers, I’m about to tie this into workers’ compensation.

The “monsters” appear just about everywhere, but especially in publicly frequented areas and businesses – at Whole Foods by the deli, on the street in front of Pottery Barn, in the waiting room at the local Dignity Health hospital.  You know where else they appear?

While crossing the street.  While driving. While standing in a dangerous area.  This addicting little game which seems to be garnering a lot of attention on social media is also providing a vehicle for a lot of accidents and injuries.  Not only can employers expect their own less-attentive workers to sustain injuries due to being oblivious or taking ridiculous chances while going about their duties, but third parties can be expected to be careless as well.

Just a thought, dear readers – given this latest craze, employers left and right can expect to lose productivity from their employees as they chase virtual monsters all around them.  Let’s not double the loss by seeing a spike in “work-related” injuries.

Some ways to combat this?  Well, if the employer provides the actual phones for the employees, care should be taken to restrict which applications can be loaded onto the phone (hint: Pokemon game should probably be blocked).

If the employees are bringing their own phones, clear instructions should be made to ban such activity, and, really, the careless use of the phone while walking around or driving.

Finally, if there are any injuries reported that make you scratch your head and ask “who could possibly be THAT oblivious?!?” it’s time to investigate possible smart phone use.  Even if this doesn’t lead to an outright denial of the claim, it may give rise to a reduction of employee benefits under Labor Code section 4551 (employee serious and willful misconduct).

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!

Happy Monday, dear readers!

Your humble blogger has a riddle for you… when is a door, NOT a door?  Well, when it is a jar.  Get it?

Ok, how about this one, when is industrial disability leave NOT compensation?  Well, when the WCAB is calculating potential Serious and Willful Penalties.

That second one probably isn’t as clever, but follow me on this.

Labor Code section 4553 provides that “the amount of compensation otherwise recoverable shall be increased one-half … where the employee is injured by reason of the serious an willful misconduct…”

So let’s take a look at a recent Court of Appeal decision, California Department of Corrections and Rehabilitation v. WCAB, Michael Ayala.  Therein, the Court of Appeal was asked to address the question of whether the “compensation” that could potentially be increased by one half as per LC 4553 includes industrial disability leave.

Applicant, Mr. Ayala, was a correctional officer at Lancaster State Prison when he was severely injured due to an attack by inmates.  The PD was ultimately resolved for 85%, but applicant’s Serious and Willful petition was not resolved until a split WCAB panel found the defendant had engaged in Serious and Willful Misconduct.  Applicant contended that the compensation to which he was entitled was his full salary, as that is what he received, while defendant contended that applicant’s compensation should be calculated based on the TTD rate alone.

The trial judge sided with defendant, limiting applicant’s 4553 increase to the TD rate, while the WCAB reversed, finding that the industrial leave supplemental bringing applicant to full salary should be included in any S&W penalty.  On appeal, the WCAB sided with defendant. 

The Court of Appeal reasoned that “compensation” under Labor Code section 3207 refers to “every benefit or payment conferred by [division 4 of the Labor Code]…”  However, the Court of Appeal traced industrial disability leave to Government Code 19871 which is not part of Division 4 of the Labor Code.   

Accordingly, the calculation of Serious and Willful penalties is limited to consideration of those benefits that would be payable under Division 4 of the Labor Code, and no other benefits. 

As per this Court of Appeal decision, it seems that any benefit that enters he calculus for Serious and Willful exposure must be traced to somewhere in Division 4.  Otherwise, the Ayala Court of Appeal would have us excluded it.

Now, dear readers, your humble bloggers puns and dad jokes are obviously pure gold.  Should an applicant claim to have received such gold by reading my blog, you can confidently exclude the value of said puns and dad jokes from the S&W exposure analysis.

Straight on till Wednesday!

Happy Friday, dear readers!

Well, we made it yet another week and the weekend is just around the corner.  So, I figured I’d take a “shot” at bringing you a relatively unorthodox blog post today, and it’s about guns!

Naturally, since June 24, 2022, when the United States Supreme Court issued its ruling overturning Roe v. Wade, almost all attention has been focused on that decision and understandably so.  Few issues in American political discourse trigger such strong emotions and such polarizing disagreements.  Further, the issue is rarely one that is hypothetical but has real world applications.  But for this blog post, I direct you to another decision: New York State Rifle & Pistol Association Inc. v. Bruen wherein the Supreme Court struck down New York’s law regarding concealed carry permits.  A law nearly identical to that of California.

Although the feelings regarding this decision are many and fractured, one area of near unanimous agreement is about the result – this ruling will increase the frequency of concealed carry permits issued to private citizens.  The California Attorney General issued OAG-2022-02 on June 24, 2022, directing that “[p]ermitting agencies may no longer require a demonstration of ‘good cause’ in order to obtain a concealed carry permit.”

As a result, are we going to see more firearms in the workplace?  May employers already have prohibition on bringing firearms to work, but some don’t or have no mechanism of enforcement given that the very nature of the issue is that it is concealed.

A reminder, dear readers, that Labor Code section 3208.3 has a lower standard for AOE/COE for psyche claims when the applicant sustains “direct exposure to a significant violent act” (from 51% to 35-40%).  In all likelihood, any violent act involving a gun is going to be considered a “significant violent act.”

Further, Labor Code section 4660.1 allows for increased permanent disability for a compensable consequence psyche claim where there is “exposure to a significant violent act within the meaning of Section 3208.3.”

In light of the high probability that a growing number of Californians will be carrying firearms on their person, employers may want to determine if the circumstances merit adoption of policy regarding firearms at work.  Being the cynic and devil’s advocate that he is, dear readers, your humble blogger can’t help but wonder if failure to proactively address the potential for firearms at work might lead to Serious and Willful Misconduct claims as well.

Now, all that being said, there are some advantages to having sane, trained, and law-abiding employees armed at work.  For example, in 2015 Syed Rizwan Farook and Tashfeen Malik allegedly carried out the San Bernardino massacre, murdering 14 and injuring some 22 co-workers in a horrific act of terrorism.  Not one of the victims was armed and all were rendered defenseless. Similar mass shootings in California have typically had a defenseless pool of victims.  But each employer will have to decide for itself, using its best knowledge of its employees and the dangers of the world, where the greater risk lies: in disgruntled employees and accidental shootings, or in intentional violence and no opportunity for mitigation. 

It is truly a sad thing that this is the calculus we are faced with, but face it with must.

So, on that cheerful note, your humble blogger wishes you a good weekend and hopes to see you back here early Monday morning!

Happy Monday, dear readers!  Your humble blogger trusts that the weekend was peaceful and meaningful for his beloved readers.

If you are observing Passover, may your bread-free life pass painfully until the end of the festival.  If you are observing Easter, I hope you find all the eggs you hid and that you will not judge your humble blogger for raiding the clearance aisle for all the Easter candy the stores failed to off-load.  I’m just buying it for … um… the kids! Yeah, that’s the ticket: those Cadbury eggs are just for the kids and totally not for your humble blogger to eat in reckless abandon for his waistline.

Anywho, aside from observing holidays, let’s talk COVID and technology.  More specifically, the FDA has approved a breathalyzer test for COVID19, which reportedly produces results in 3 minutes with a 91% accuracy rate.

As many practitioners did, your humble blogger looked ahead and anticipated the issues that will go to trial over COVID19 and the various vaccine rules.  Is an employee engaged in “serious and willful” misconduct by refusing to vaccinate?  If an employer’s vaccine mandate is the only reason an injured worker is not being returned to modified duty, is the injured worker still entitled to TTD?  Is an employer’s different treatment of unvaccinated employees sufficient to give rise to psyche and stress claims?

Well, perhaps this can be the answer.  Instead of requiring proof of current vaccination status, perhaps an at-work screening for COVID19 positivity is a better solution.  After all, it is now pretty solidly established that the vaccinated can both catch and transmit the disease, as we’ve seen in some recent examples, so wouldn’t it be sounder policy to breath-test all employees as they come to work to ensure no one is bringing COVID19 to work?

This is a device and method worth watching, as it may offer a relatively pain-free solution to the animated (and sometimes violent) debate we’ve seen played out nationally and internationally about the balance of rights and responsibilities in public. 

What do you think, dear readers?

Happy Monday, dear readers!

My more regular readers will know that it is truly a rare thing when your humble blogger agrees with a result that disfavors the defense, but… well… here we are.

Before I had my life view permanently warped by the inner workings of the workers’ compensation system, as a perfectly normal, healthy, happy person I often wondered why employers would punish employees that sprang into action to prevent crime – why would you fire the hero that tackled the armed robber looting your restaurant?  Why would you suspend the sales clerk that tackled a fleeing shoplifter?

Well, workers’ compensation provides an excellent explanation of exactly why employers are incentivized to do that – it is far cheaper to replace stolen articles by raising prices on customers than it is to pay for the workers’ compensation benefits flowing from injuries sustained during heroics.  The punishments serve as a deterrent for future situations with other employees.

One of the very early blog posts on this most humble of blogs was on this very topic.  Well, a recent panel decision, Alex v. All Nation Security Services, Inc., provided the WCAB with an opportunity to reiterate and explain the policy that awards benefits to superheroes moonlighting as ordinary employees.

In Alex, a security guard confronted and chased after a disruptive person hurling profanity and harassment as customers and employees alike.  In the process, Mr. Alex was struck by the employee and sustained further injury after he left the employer’s premises in pursuit of said trouble-maker.  The employer argued that the claim was not compensable as Mr. Alex had received clear instruction and training that he was not to chase after or apprehend anyone – the stated job duties were far closer to “observe and report” than “serve and protect.”

By giving chase, defendant argued, the conduct exceeded the scope of employment, and by leaving the employer’s facility, the facts only strengthened the argument.  Well, neither the trial judge nor the WCAB agreed.  The situation arose when applicant was at his employer’s premises doing his job as a security guard – what followed was authorized activity… if only performed in an unauthorized manner.  The trial judge’s ruling that the injury was compensable was upheld by the WCAB.

Now, to the naysayers reading this blog, allow me to offer you a hypothetical.  If I hire a security guard to work the night shift at my 24-hour-person-crusher-factory, and I give specific and clear instructions on a weekly basis to my security guard NOT to get crushed by the person-crushers… am I safe from workers’ comp liability when the guard inevitable suffers the inevitable? 

Never mind why I have such a factory, but the point is still there – instructing the injured worker not to do things that will result in the injured worker getting hurt is insufficient.  In some cases there may be affirmative defenses or perhaps reduced benefits due to employee serious and willful misconduct, but this is, after all, a no fault system.

The Alex case lays out the authority and citations for this fairly well, chief among them the 1988 Court of Appeal case Westbrooks v. WCAB (employee misconduct, whether negligent, willful, or even criminal, does not necessarily preclude recovery … in the absence of an applicable statutory defense, such misconduct will bar recovery only when it constitutes a deviation from the scope of employment.”) and should drive the point home that employers seeking to mitigate their workers’ compensation exposure will benefit most from increased training, improving conditions, and pricing the inevitable workers’ compensation claim into the cost of services. 

The theory that the fault of an employee will bar the claim is much like the car your humble blogger’s parents owned in the Soviet Union (a non-starter).

What day is it, dear readers?  Why, it’s…

Your humble blogger previously wrote a bit about exo-skeletons: those robots you practically wear on the outside of your body that help take the load off for heavy or repetitive tasks.

Well, now I’m going to write about it again.  Why? Because these things are nothing short of miraculous.

Esko Bionics is bringing its exoskeletons to Ford’s Michigan factory workers.  A lot of the injuries we see now, especially the cumulative trauma claims, might take their place on the shelf of history next to the dinosaurs.  Why?

The physical strain on the human body done by much of this work, such as having to hold up heavy tools for 2-3 hour stretches at a time, could be transferred to the exoskeletons.

According to the video below, the exoskeleton provides 5-15 pounds of lifting assistance per arm for chest level lifting and above.

How will this apply in workers’ comp?

If a treating physician provides work restrictions of limiting shoulder-and-above work to 15 pounds or lighter, does wearing the vest increase those restrictions to 30 pounds?

If a QME opines about industrial causation to a cumulative trauma, but has not considered how such an exoskeleton works or what impact it has in applicant’s usual and customary duties, can the QME opinion still be considered substantial medial evidence?

Now, think about the flip side of this – if exoskeletons become the norm, or the growing trend, does failure to provide them constitute serious and willful misconduct?  Should such exoskeletons be considered basic safety equipment?

To some extent, the history of labor came with the notion that one will wear out his or her body over a lifetime of work.  It’s only natural – our bodies degrade due to our labors over the span of our lives, and our hope is that we greet retirement with only minimal pains and aches from a lifetime of toil.

What if that’s no longer going to be the case?

Call me charmingly naïve, dashingly handsome, and hopelessly optimistic (come on, do it!) but your humble blogger is expecting good things are coming our way real soon.

Your humble blogger doesn’t like to name names, and has no intention of doing so in this case, but I now bring you the story of a workers’ compensation attorney from southern California facing some serious accusations of misconduct before the state Bar.

Bear in mind, dear readers, I do this not to shame anyone, because the State Bar and the California Supreme Court, if appropriate, will do that well enough itself.  I do this because the misconduct alleged is important for us to be aware of so that it is not done.  In a stressful situation, it is easy to blur lines, forget rules, and justify all sorts of behavior.  But, as with most wrongful action, it’s a slippery slope with the State Bar waiting at the bottom (not to disparage the State Bar, but you get the point)

The case involved an attorney that represented an injured worker on a workers’ compensation case, involving injury, 132a discrimination, and serious and willful misconduct.  The same applicant also had employment and disability discrimination claims, for which she retained another attorney.

At mediation, the parties agreed to resolve the workers’ compensation claim for $25,000 (of which $3,750 was to be paid to applicant’s attorney), dismiss the 132a and serious and willful claims, and pay an additional $787 as a deposition fee.  Meanwhile her disability discrimination claim was settled for $65,000, with her attorney to receive 1/3 as an attorney fee.  It appears there was no fee splitting or sharing agreement between the two attorneys.

Here is where things gets difficult.

Applicant’s counsel was apparently not satisfied with the fees to be recovered by applicant’s respective representatives.  His $4,500 recovery was dwarfed by the other attorney’s $22,500.

So, he sent an e-mail to the disability discrimination attorney, demanding a portion of her fee, or, if she didn’t make nice, he would walk through the compromise and release and obtain a 15% recovery on the $65,000.  After rejecting her offer of a $1,000 referral fee, he swapped out pages, making the $65,000 as the settlement amount for the 132a and serious and willful claims (which the parties had agreed would be dismissed), and naming himself as the sole attorney for the whole amount.

The WCJ, thinking he was dealing with an honest and ethical attorney, approved the C&R.  The disability discrimination attorney then sought reconsideration, having been cheated out of her fee.  The employer also had a thing or two to say about this, as all of a sudden, it was subject to an order to pay $65,000 as a result of serious and willful misconduct and 132a discrimination (potentially leaving the other claims no longer resolved).

Then, applicant’s counsel went a step further, filing a petition for fees for attending the mediation: 10 hours attendance, 5 hours travel to and from, all at $350 per hour.  The WCJ, again thinking he was dealing with an honest and ethical attorney, granted the petition, having been deceived into thinking that this was a deposition rather than a mediation.

Eventually, this all came out, and the parties affected by this were less than happy, and as a result, it’s possible that a career might just be at its end.

Now, lawyers are notorious for the macho act – this gets into their heads and they sometimes start over reaching.  And, in some cases, it takes over every decision-making process.

Accordingly, this is a good example of where the macho Kool-Aid can take us.  Adjusters would do well to learn from this lesson too: over-relying on “entitlement” and being victimized by the workers’ compensation system and the exploitation of workers and their attorneys can lead to a dark place.

Your humble blogger hopes that this attorney, and all who find themselves engaged in similar conduct, are redeemed and returned to the honest, ethical pursuit of justice.

Workers’ compensation is weird – I know.  It’s full of exceptions and loopholes and odd twists and turns.

For example, have you heard of the power press exception?  A power press, as defined by Labor Code section 4558(a)(4), is a material-forming machine that utilizes a die which is designed for use in the manufacture of other products.  If the employer knowingly removed or failed to install a point of operation guard on a power press, the injured worker (or his relatives) can seek damages at law (tort law), and not just in workers’ compensation.

So, in plain Monday-pre-coffee speak, what is a power press?  In Ceja v. J.R. Wood, Inc., the Court of Appeal relied on the Administrative Code (title 8, section 4188), noting that “die” was defined as “[t]he tooling used in a press for cutting or forming material.  An upper and a lower die make a complete set.”  In Ceja, a power saw was expressly excluded from the definition, as were all small hand tools.  Think Looney Tunes 

Recently, an unpublished Court of Appeal decision reviewed this law as well.  In Jose Herrera v. Unistar Food Processing, Inc., a worker sustained very serious injury after his gloved fist became stuck to a piece of frozen pork he was putting through a meat grinder, pulling his arm in and causing an amputation.

Mr. Herrera sought damages under tort law under the Power Press exception to the workers’ compensation system.  The employer moved for summary judgment, arguing that the meat grinder did not meet the requirements set out in Labor Code section 4558, and so Mr. Herrera was confined to the workers’ compensation system.  The trial Court agreed and granted the motion.

On appeal, Mr. Herrera argued that the meat grinder was, in fact, a power press because the blades of the meat grinder formed a lower and upper part, and formed the meat product (from frozen cubes into ground meat) to make other products.   The Court of Appeal disagreed – whatever the inner workings of the meat grinder, it failed to meet the definition of the Labor Code, as it was not manufacturing other products.

“What goes into the meat grinder comes out of the grinder, albeit in smaller pieces.  Cubed pork goes in, and ground pork comes out.  Thus, a meat grinder does not manufacture a different product.  It merely minces the meat.”

Now, bear in mind, dear readers, your humble blogger has nothing but sympathy for Mr. Herrera.  This poor gentleman has gone through an intense trauma and will likely be deprived of his livelihood for some time to come.  That being said, the purpose of the Workers’ Compensation system is to provide necessary benefits at a quick pace, although with a lower total pay-out in the end.

Frankly, the power press exception is really just a very specific type of serious and willful claim – with the employer knowingly and willfully exposing its employees to very serious harm by failing to install or keep on manufacturer provided safety guards.  It appears that this was simply an industrial accident.