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Cal/OSHA Investigates Death Caused by Trench Collapse

One of two people who were trapped in a 15-foot trench in Pacific Palisades has died. The second worker in the construction project incident was rescued after an effort that lasted more than an hour after firefighters arrived on the scene.

The Los Angeles Times reports that the victims were working for a subcontractor on a storm-water treatment project at 200 Temescal Canyon Road and were excavating the trench, according to the Los Angeles Fire Department.

The worker who was pulled alive from the trench was rushed by ambulance to the nearby beach, where he was met by a helicopter and airlifted to UCLA Medical Center. The Los Angeles County coroner’s office identified the dead man as 50 year old Gilbert Vargas. Emergency workers recovered his body after about nine hours of digging in the 200 block of North Temescal Canyon Road, just north of Pacific Coast Highway. Vargas and the unidentified injured man had been excavating with back hoes on a city storm water project.

Peter Melton, a spokesman for Cal-OSHA, said the agency has ordered work stopped at the site until any hazards have been resolved.

The state Division of Occupational Safety and Health has six months to complete its investigation, but Melton said Los Angeles Engineering Inc., the men’s employer, “is going to want to get this taken care of as soon as possible to get back to work, if they can get back to work.”

Santa Rosa Orthopedist/QME Suspended Pending Criminal Charges

An orthopedic surgeon accused of meeting a girl for sex in Novato surrendered his medical license pending the outcome of the criminal case. As a result of the medical license suspension, the Division of Workers’ Compensation has also suspended his QME certificate. According to the report in the Marin Independent Journal, 53 year old Raymond Severt M.D. made his initial appearance in Marin Superior Court, where he is charged with four felony sex charges. Deputy District Attorney Aicha Mievis he delayed entering a plea until his next hearing on April 10.

Severt, in stipulating to the suspension of his medical practice, is also barred from prescribing or dispensing drugs, and he must surrender his wall certificates and prescription pads, according to a filing by Deputy Attorney General Brenda Reyes. At the time of his arrest last month Severt worked for Santa Rosa Orthopeadics. He is on leave.

Severt, a Santa Rosa resident, was arrested by Novato police on Feb. 11. The investigation began when police received information that a man was sending sexually explicit messages to the girl and had arranged to meet her in Novato. Investigators intercepted Severt in the area of South Novato Boulevard and Gateway Court. Police said he initially met the girl through an online chat room.

Severt’s lawyer, Stephen Turer, said that the girl initially told Severt she was 21 years old. Police allege she later told Severt that she was under 18, but Severt agreed to meet anyway because he did not know which age she was telling the truth about, Turer said. Severt never actually had the chance to meet her and see that she was underage, because police arrested him first, Turer said. “It becomes one of those not-so-unique situations where people get involved online under, at least, ambiguous or confusing circumstances,” he said. “It doesn’t appear that initially his interest was in young girls,” he added. “There’s no indication he has any history in any way of soliciting minors. It’s unfortunate what he did even if she was 21, given his age, but it’s not a crime.”

Severt is charged with attempted lewd acts with a child under 14, communicating with a minor for the purpose of lewd behavior, arranging a meeting with a minor for purposes of lewd behavior, and distribution of lewd material to a minor. The latter charge is for the sexually explicit messages he allegedly sent the girl. Severt could face up to four years in prison on charges of attempted lewd acts with a child under 14, communicating with a minor for the purpose of lewd behavior, arranging a meeting with a minor for purposes of lewd behavior, and distribution of lewd material to a minor. The latter charge is for the sexually explicit messages he allegedly sent the girl.

DWC, WCAB Revise Policy and Procedural Manual

The Division of Workers’ Compensation and Workers’ Compensation Appeals Board have revised their Policy and Procedural Manual (PPM) and posted it on the WCAB website.

The PPM is an internal employee guide, prepared under the authority of the administrative director of DWC and the chair of the WCAB. The manual is designed to promote uniformity and provide direction to judges and other employees in the day-to-day operation of DWC’s district offices and the Appeals Board. It is also a resource for attorneys, claims administrators and other parties wanting information on the rules of court. Because it an internal document, the PPM is not subject to regulations, which require formal rulemaking procedures and public hearings.

The PPM became operative in 2003, with some revisions made in the following years. The 2012-13 revisions, which are effective on March 8, were drafted by a committee consisting of Appeals Board Secretary and Deputy Commissioner Rick Dietrich, DWC Chief Judge Richard Newman, Associate Chief Judges Thomas Clarke, Mark Fudem and Ellen Flynn, and Marina del Rey Presiding Judge Paige Levy, who was the project manager.

DWC monitors the administration of workers’ compensation claims, and provides administrative and judicial services to assist in resolving disputes that arise in connection with claims for workers’ compensation benefits. The WCAB, a seven-member, judicial body appointed by the Governor and confirmed by the Senate, exercises all judicial powers vested in it by the Labor Code. Its major functions include review of petitions for reconsideration of decisions by workers’ compensation administrative law judges of the DWC and regulation of the adjudication process by adopting rules of practice and procedure.

Neighborly Help With Roof Repairs Does Not Create Employment Relationship

Decedent, Juan Sanchez, fell from the roof of the residence of Defendant Alejandro Perez. Prior to the incident, Defendant Alejandro Perez believed that there were some areas of dry rot under the eaves on various portions of the roof. The sole cost of the roof repairs was $186.68, which was the cost of supplies purchased by Perez. The decedent had several years of construction experience, including roofing repairs and according to his wife knew how to perform all aspects of construction.

On April 22, 2006, the decedent began making roof repairs to Defendant’s eaves. The decedent used his own tools and ladder to make the repairs, with the exception of one saw which was provided by Defendant Perez. Defendant Perez’s only assistance in the repairs was handing materials up the ladder. As decedent was familiar with roof repairs, Defendant Perez did not direct the details of the decedent’s work. Prior to the decedent’s fall, his wife warned him to be careful because he was near the edge of the roof. Defendant Perez subsequently found the decedent lying injured on the driveway. Decedent was transported to San Joaquin County General Hospital where he died the following day from his injuries. Prior to the fall, the decedent had been drinking beer. The decedent’s survivors sued defendant Alejandro Perez alleging negligence.

The trial court granted defendant’s motion for summary judgment. It concluded that: (1) all of plaintiffs’ causes of action were for negligence; (2) defendant did not owe the decedent a duty of care; (3) California Occupational Safety and Health Act (Cal-OSHA) regulations were inapplicable; (4) the decedent was not defendant’s employee; (5) defendant did not exercise control over the work; (6) defendant had no duty to warn the decedent of an obviously dangerous condition; (7) plaintiffs cannot establish causation; (8) the decedent assumed the risk; and (9) plaintiffs cannot establish a claim for emotional distress.

The plaintiff appealed the summary judgment. The Court of Appeal affirmed the dismissal in the unpublished decision of Dolores Rivera-Sanchez v Alejandro Perez.

Plaintiffs claim that the decedent was defendant’s employee under the presumption created in Labor Code section 2750.5. But the Court of Appeal found that the presumption does not apply because the job fell within an exception under Business and Professions Code section 7048.

Labor Code section 2750.5 states: “There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to [the Contractors’ State License Law], or who is performing such services for a person who is required to obtain such a license is an employee rather than an independent contractor. . . .”

Plaintiffs tried to apply Labor Code section 2750.5 to establish that the decedent was defendant’s employee because the work the decedent was doing required a contractor’s license (and the decedent did not have a contractor’s license). However, Business and Professions Code section 7048 states that the Contractors’ State License Law “does not apply to any work or operation on one undertaking or project by one or more contracts, the aggregate contract price which for labor, materials, and all other items, is less than five hundred dollars ($500), that work or operations being considered of casual, minor, or inconsequential nature.” The only evidence of the cost of the project in this case was $186.68 that defendant spent on materials. Because the project cost less than $500, no contractor’s license was required. The Court ruled that because no contractor’s license was required, the Labor Code section 2750.5 presumption that the decedent was defendant’s employee does not apply.

Plaintiffs also attempt to invoke Labor Code section 3357, which states: “Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.” However, this workers compensation statute does not apply “if the essential contract of hire, express or implied, is not present.” (Spradlin v. Cox (1988) 201 Cal.App.3d 799, 807.) A contract for hire requires “‘(1) consent of the parties, (2) consideration for the services rendered, and (3) control by the employer over the employee.’” (Ibid.) Here, there was no consideration for services rendered, and defendant did not exercise control over the decedent. Therefore, the Court ruled that decedent was not an employee under Labor Code section 3357.

Floyd, Skeren and Kelly LLP Schedules Employment Law Conference

Floyd, Skeren and Kelly LLP is pleased to announce its 3rd Annual Employment Law Conference, which will feature keynote speaker Phyllis W. Cheng, Director of the California Department of Fair Employment and Housing (DFEH). The conference will be held on May 9, 2013 at the Disneyland Hotel.

This is an all-day event, designed for employers, supervisors, managers, claims adjusters, risk managers, and any other professionals associated with human resources and employment law. The conference will focus on the latest employment law cases, most recent legislation, and provide helpful practical guidance related to numerous workplace topics, including: the new California disability regulations (which impact an employer’s policies and procedures on reasonable accommodation, the interactive process and medical certifications); an overview of important OSHA workplace requirements; a review of 10 critical steps an employer can take to stay out of court and avoid costly and time consuming employment related lawsuits; a workers’ compensation case law and legislative update; helpful guidance on preventing workers’ compensation fraud; a review of the new comprehensive pregnancy disability regulations now in effect; and, an update on the evolving role of social media in the workplace.

Cost of attendance is $120.00

Discounted room rates at the Disneyland Hotel and discounted Disneyland tickets are available for attendees and their guests. Upon registration this information will be provided to you.

Please visit www.fskhrtraining.com for more details and online registration. You can also contact Christina Bardelli by phone (818) 854-3239 or, email christina.bardelli@fsklaw.com.

Court of Appeal Expands Employee Privacy Rights

Yum! Brands is the corporate parent of several fast food franchises, such as Taco Bell, Pizza Hut, and KFC (formerly known as Kentucky Fried Chicken). Yum employed Melissa Ignat between 2005 and 2008 in the Yum Real Estate Title Department, located in Irvine. She assisted paralegals in the department with securing title to the real estate on which Yum’s franchised stores conducted business.

Ignat suffered from bipolar disorder, for which she was being treated with medications. Sometimes these were effective, sometimes not. Side effects of medication adjustments occasionally forced Ignat to miss work. Ignat alleged that after returning from one such absence in mid-2008, her supervisor, Mary Shipma informed her that she had told everyone in the department Ignat was bipolar. Ignat alleged her coworkers subsequently avoided and shunned her, and one of them asked Shipma if Ignat was likely to “go postal” at work.

Ignat was terminated in early September 2008. She filed suit against Yum! Brands and Shipma on November 12, 2008, alleging one cause of action for invasion of privacy by public disclosure of private facts. The trial court granted summary judgment in favor of the employer. Summary judgment was ordered on the ground that the right of privacy can be violated only by a writing, not by word of mouth. Because Ignat had not produced any document disclosing private facts, she could not pursue this cause of action. The trial court lamented the “irrationality” of this rule, but felt itself bound by precedent.

Ignat appealed. The Court of Appeal reversed in the published opinion of Ignat v Yum! Brands Inc.

In reviewing the case law the Court of Appeal noted that the “rule” requiring a written publication as an element of a public disclosure of private facts privacy claim in California originated in dictum in Melvin v. Reid (1931) 112 Cal.App. 285 – which lacked support in the case law on which it was based – an opinion that rejected the tort and all its principles, instead basing its holding on another principle entirely. It was followed by two cases from the 1960’s.(Gautier v. General Telephone Co., supra, 234 Cal.App.2d at p. 303; Grimes v. Carter, supra, 241 Cal.App.2d at pp. 698-699.) With these two exceptions, restricting privacy violations to written publications has been either roundly criticized or ignored by the courts dealing with disclosure of private facts in oral statements since the principle was first enunciated, in dictum, in Melvin . The Court of Appeal concluded that “This is not a firm foundation for a ruling dismissing a cause of action”.

The Court concluded “that limiting liability for public disclosure of private facts to those recorded in a writing is contrary to the tort’s purpose, which has been since its inception to allow a person to control the kind of information about himself made available to the public – in essence, to define his public persona. (See Briscoe, supra, 4 Cal.3d at p. 534; The Right to Privacy, supra, 4 Harv. L.Rev. at pp. 198-199.) While this restriction may have made sense in the 1890’s – when no one dreamed of talk radio or confessional television – it certainly makes no sense now. Private facts can be just as widely disclosed – if not more so – through oral media as through written ones. To allow a plaintiff redress for one kind of disclosure but not the other, when both can be equally damaging to privacy, is a rule better suited to an era when the town crier was the principal purveyor of news. It is long past time to discard this outmoded rule.”

Operators of Leasing Company Charged in $1.7 Million Fraud Case

A Corona man and his daughter who have been charged with taking more than $1.7 million in what officials say was a workers’ compensation fraud scheme have pleaded not guilty.The Press-Enterprise reports that Antonio Torres Arias, 47, and Nayeli Iliana Torres, 22, each pleaded not guilty during their Thursday, March 14, arraignment in the downtown Riverside Hall of Justice courthouse. Their next court date is April 4. Jail records showed Torres is out of custody; Arias remained in jail early Thursday evening on $1.7 million bail.

Investigators said the defendants operated several companies that leased employees to the Cardenas Markets supermarket chain. There is no information that Cardenas Markets was involved in any of the alleged wrongdoing, a news release from the district attorney’s office said.

Arias and Torres are each charged with five felonies – four counts of misrepresentation to obtain workers’ compensation insurance and one count of tax evasion. If convicted as charged, each could face up to 16 years in prison. Arias and Torres conducted the alleged fraud to reduce the amount of premiums owed for workers’ compensation insurance. They used “cash pay” employees, misclassified employee jobs, and concealed the history of employees’ workplace injuries as far back as 2009, prosecutors said.

Two of the defendants’ companies included Torres Services and Torres Cleaning. The companies that authorities say were wronged in the case include First Comp Insurance, Chartis Insurance, National Fire Insurance and the state Employment Development Department.

The case was investigated for about nine months by a task force that includes the Riverside County District Attorney’s office and the California Department of Insurance. Authorities were alerted to the case by investigators from First Comp Insurance. The case is being prosecuted by Deputy District Attorney Michael Mayman, of the office’s Insurance Fraud Unit of the Special Prosecution Section.

WCAB Panel Dismisses Liens For Late Payment of Activation Fees

S.B. 863 requires lien claimants to pay an activation fee prior to attending a lien conference, and a filing fee for filing new liens. The panel decision in the case of Jose Pedro Soto v Marathon Industries Inc. held that lien claims are properly dismissed when the activation fee is paid a few hours late.

Jose Pedro Soto claimed to have sustained industrial injuries to his back. He settled his cases by Compromise and Release approved by Order Approving Compromise and Release dated September 6, 2012. On November 29, 2012, defendant filed a Declaration of Readiness to Proceed requesting a lien conference. A lien conference was scheduled for January 10, 2013.

After passage of S.B. 863, Labor Code Section 4903.06(a)(4), effective January 1, 2013, provides: “All lien claimants that did not file the declaration or readiness to proceed and that remain a lien claimant at the time of a lien conference shall submit proof of payment of the activation fee at the lien conference. If the fee has not been paid or no proof of payment is available, the lien shall be dismissed with prejudice.”

Administrative Director Rule 10208(a), operative January 1, 2013, provides in relevant part: “No lien claimant that is required to pay an activation fee shall file a declaration or readiness or participate in any lien conference including obtaining an order allowing its lien in whole or in part, without submitting written proof of prior timely payment of the fee, or without electronic proof of timely payment of the fee that is available to the judge and parties at the conference. ‘Prior timely payment’ means payment of the activation fee (1) prior to the filing of a declaration filing a declaration of readiness, or (2) prior to an appearance at a lien conference by a lien claimant of record that did not file the declaration of readiness.”

The lien conference was scheduled for 8:30 a.m. The lien claimants in that case paid the activation fee between 10:56 and 11:06 a.m. on that day. Pursuant to Rule 10208(a), payments of the fees were not “prior timely payments.” In order to have been “prior timely payments,” the payments would have had to be made prior to 8:30 a.m. on the date of the lien conference. Therefore, the liens were properly dismissed at the lien conference on January 10, 2013.

The WCAB reinstated the Orders Dismissing Liens of Pacific Orthopedic and Rehabilitation, Vanguard Psychiatric, National Duramed, LA Mediwave, Inc., Westside Wilshire Medical Center, Orthopedic Rehabilitation of San Fernando Valley, Marina Russman, M.D., Jan Medical Equipment, Healthcare Interpreting, and Global Interpreting dated January 10, 2013.

WCAB Rescinds Order to Pay for Medical Marijuana

In the case of Christopher Cockrell v Farmers Insurance a June 20, 2012 Findings and Award ordered reimbursement “for self-procured medically recommended marijuana as opposed to providing or paying a supplier of this drug is awarded in a sum not to exceed the lower of the fee schedule for medications being replaced by the medical cannabis or the actual expense of the self-procured item.”

The defendant filed a Petition for Reconsideration contending that the WCJ erred in finding that applicant was entitled to reimbursement for self-procured medical marijuana.

The WCAB Noted that neither the parties nor the WCJ considered the application of Health and Safety Code section 11362.785(d), which states that “Nothing in this article [Medical Marijuana Program] shall require a governmental, private, or any other health insurance provider or health care service plan to be liable for any claim for reimbursement for the medical use of marijuana.” (See also Lab. Code, §§ 4600.35 et seq.)

For that reason, the WCAB granted reconsideration, rescinded the Findings and Award of June 20,2012, and returned the matter to the trial level for further proceedings to consider application of Health and Safety Code section 11362. 785( d) to this matter.

CWCI Says MPN Physicians Now Provide 80% of Care

Treatment by network physicians is becoming increasingly prevalent in California workers’ compensation, with new data showing that nearly 80 percent of first-year physician-based outpatient medical services for 2010 California work injuries was provided by physicians who are part of a medical network – up from just over half of the services in 2004 – a trend that has grown steadily since 2004 legislative reforms extended medical control for employers that offer Medical Provider Networks.

Looking at first-year medical service data from more than one million claims for California work injuries occurring between 2004 and the third quarter of 2011, the authors calculated and compared the percentage of injured worker outpatient treatment visits to network providers before and after MPNs began operating in January 2005. The results show that the use of network providers for first-year physician services increased from 51 percent for 2004 work injuries to nearly 2/3 of the services for 2005 injuries – indicating an initial surge as first-year treatment shifted to MPNs. The latest figures confirm that the trend has continued, with networks accounting for 8 out of 10 physician-based services for 2010 injuries.

Prior to MPNs, employers usually controlled their injured workers’ treatment for 30 days after the injury, but with the advent of MPNs, medical control was extended to the life of the claim for employers that offered these networks. To determine how much of the increase in first-year network physician use is associated with the expansion of employer medical control, the study measured changes in the percentage of services by network providers within and beyond 30 days of injury. For pre-MPN (accident year 2004) claims, network providers rendered about 70 percent of physician-based outpatient medical services in the first 30 days post injury, while the latest data (claims for injuries from the first three quarters of 2011) show that rate is now 86.5 percent. At the same time, however, the network provider utilization for services beyond 30 days post-injury has nearly doubled from around 39 percent for AY 2004 claims to about 76 percent for AY 2010 claims, suggesting that the expansion of medical control under MPNs has been the primary factor behind the growing use of network providers in California worker’s compensation.

The research also shows that overall, the increasing share of first-year treatment payments to network providers has tracked with the growth in utilization. Payments to network providers rose from less than 40 percent of total reimbursements for first-year visits for 2004 injuries to nearly 54 percent for 2005 injuries, then continued to trend up, increasing to nearly 72 percent of the payments for first-year services for 2010 injuries.

Again, this growth was primarily driven by payments to network providers for services after the first 30 days, which more than doubled from less than 32 percent of the payments on AY 2004 claims, to more than 67 percent of the payments for AY 2010 claims.

The Institute has published the results of the study in a Research Update, which includes data tables showing AY 2004 – 3Q2011 network provider utilization rates and the proportion of payments for physician-based treatment within and beyond 30 days of injury. Results are also broken out separately for three major treatment categories: Evaluation and Management; Surgery Services (excluding injections); and Physical Therapy.