Author: WorkCompAcademy

Plans to stabilize the money-losing U.S. Postal Service have been bouncing around Capitol Hill for a long time, long enough to make you wonder if Congress will ever do anything about it. The proposals are designed to help the Postal Service deal with a changing business climate that left it with a net loss of $5 billion in fiscal year 2013. Yet the Washington Post reports that if the legislation in the Senate becomes law, its reach will extend well beyond the postal facilities and those who work there. The measure could have a significant impact on many federal employees, particularly those who are injured. That worries feds across the government.

The legislation would cut some payments provided through the Federal Employees’ Compensation Act (FECA), better known as workers’ comp, for staffers injured on the job. The Homeland Security and Governmental Affairs Committee has approved the legislation, sponsored by its chairman, Thomas R. Carper (D-Del.).

Is comes as no surprise that Colleen M. Kelley, president of the National Treasury Employees Union, said she “strongly opposes . . . unwarranted cuts in FECA benefits for injured federal workers who are either older or have family obligations. Under this bill, injured workers would have their FECA benefits reduced by one-third to one-quarter when they reach the retirement age for Social Security.”

A committee aide said that benefits would not change for workers who are permanently and totally disabled, or age 65 or older. The aide added that the bill includes programs to help injured workers get back to work.

So far, opposition by NTEU and other labor organizations has not been strong enough to prevent the workers’ comp provision from advancing along with the rest of the legislation. The overall bill won bipartisan approval in the committee with a 9-1 vote in February and the full Senate voted 62-37 on the same measure two years ago. The one “no” vote in February was cast by Sen. Jon Tester (D-Mont.). He complained that the legislation “includes sweeping changes to the federal workers compensation program, even though the committee has yet to hold a single hearing on the issue. It certainly seems there was time to hold a hearing, given how long the provision has been around. And the Senate seems in no rush to move the legislation now.”

Asked for an update on the legislation, the committee aide said Carper “remains hopeful that the full Senate can consider the bill later this year.”

All Workers’ Compensation Administrative Law Judges must follow the California Code of Judicial Ethics. Specifically Labor Code 123.6. (a) provides that “All workers’ compensation administrative law judges employed by the administrative director shall subscribe to the Code of Judicial Ethics adopted by the Supreme Court pursuant to subdivision (m) of Section 18 of Article VI of the California Constitution for the conduct of judges and shall not otherwise, directly or indirectly, engage in conduct contrary to that code or to the commentary to the Code of Judicial Ethics.”

The Supreme Court Advisory Committee on the Code of Judicial Ethics proposes amendments to the Code of Judicial Ethics from time to time. In February 2014, the Committee published its proposal the amend canon 2C and related provisions of the code. Canon 2C prohibits a judge from holding membership in an organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation , As currently written, this canon does not bar membership in a nonprofit youth organization.

In 2003, the Supreme Court revisited the nonprofit youth organization exception after receiving requests to eliminate the exception . The Bar Association of San Francisco initiated the request, joined by the Santa Clara County Bar Association. Once the bar association’s proposal was publicized, the court received many communications from judges, lawyers, and others. Some of those responding supported elimination of the exception, while others opposed any amendment to the canon. The court ultimately decided to leave the canon intact, but added commentary to canons 2C and 3E to caution judges to be sensitive to the concerns expressed by those advocating elimination of the exception.

Now some ten years later, the Advisory Committee raises the proposal to eliminate the exception once again. The committee analyzed the exception in the context of a judge being a member of the Boy Scouts of America. The Committee commentary on the proposal reasons that until recently, the official policy of the BSA read: “While the [BSA] does not proactively inquire about the sexual orientation of employees, volunteers or members, we do not grant membership to individuals who are open or avowed homosexuals or who engage in behavior that would become a distraction to the mission of the BSA. In May 2013, after a national council meeting, the BSA announced its decision to permit openly gay boys to participate as scouts until age 18, but to continue its bar against gay and lesbian adults as troop leaders or in other leadership positions. Because the BSA continues to discriminate on the basis of sexual orientation, the committee agreed that eliminating the exception, thereby prohibiting judges from being members of or playing a leadership role in the BSA, would enhance public confidence in the impartiality of the judiciary.”

The committee noted that the exception was developed in 1996 to accommodate judges who were members of or active in the BSA. “Effectively selecting one organization for special treatment is of particular concern to the Committee, especially in light of changes in the law in California and elsewhere prohibiting discrimination on the basis of sexual orientation. Eliminating the exception would not have any effect on a judge’s family members, who could still join or continue to be members of the BSA.”

The announcement states “The proposals have not been approved by the Supreme Court and are not intended to represent the views of the court . These proposals are circulated for comment purposes only.”

Some commentators have pointed out unintended consequences of the Committee proposal. Catherine Short, legal director of the Legal Defense Foundation wrote a letter stating “The Committee’s invitation ignores the fact that the change also encompasses other youth organizations whose membership is limited on the basis of gender, e.g., the Girl Scouts.”

In May 2008, Linda Hopkins fell from an outdoor balcony at the offices of her employer, Perfect Smile Dental Ceramics, Inc. As a result of the injuries she suffered in the fall, she was unable to work. Jurek Kedzierski and Margo Kedzierski own Perfect Smile and also own the office building in which Perfect Smile is located. Shortly after her accident, Hopkins began receiving workers’ compensation benefits. In April 2009, she filed a claim with the Workers’ Compensation Appeals Board, seeking additional benefits.

In September 2010, brought a negligence/premises liability claim against Jurek Kedzierski, as trustee of the Jerzy Jurek Kedzierski and Margo Kedzierski Revocable Living Trust (the Trust), and against Margo, as an individual, and a negligence claim against the Trust. Hopkins alleged that that the statute of limitations on these claims had been equitably tolled while she pursued her April 2009 workers’ compensation claim. Hopkins also alleged that respondents were equitably estopped from asserting a statute of limitations defense based on settlement negotiations that she claimed had taken place prior to her filing the original complaint in this action.

Hopkins’s former counsel, Eric Welch. testified that he received information in September 2009 that led him to believe that Perfect Smile owned the building where the accident occurred. In October 2009, Attorney Welch sent a demand letter to Jurek and Perfect Smile. Golden Eagle Insurance, the insurer for both Perfect Smile and the Kedzierskis, informed Welch that it was investigating Hopkins’s claim. On March 8, 2010, Golden Eagle notified Welch that it was denying the claim.

The trial court determined that neither doctrine applied. Based on these findings, the court concluded that Hopkins’s complaint was not timely filed. The trial court entered judgment in favor of respondents and Hopkins appealed. The Court of Appeal remanded the case to the trial court for factual findings as to whether Hopkins demonstrated the elements of equitable tolling in the published decision of Hopkins v .Kedzierski.

The equitable tolling of statutes of limitations is a judicially created, nonstatutory doctrine. It is ‘designed to prevent unjust and technical forfeitures of the right to a trial on the merits when the purpose of the statute of limitations – timely notice to the defendant of the plaintiff’s claims – has been satisfied. Where applicable, the doctrine will suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.

In Elkins v. Derby (1974) 12 Cal.3d 410, 414 (Elkins), the Supreme Court held that the doctrine of equitable tolling may apply to toll the statute of limitations on a claim during the period in which a plaintiff pursues another remedy for the harm that the plaintiff suffered. The Elkins court adopted a line of cases in which courts had concluded that “if the defendant is not prejudiced thereby, the running of the limitations period is tolled ‘[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one.’ ” (Id. at p. 414, quoting Myers v. County of Orange (1970) 6 Cal.App.3d 626, 634 (Myers).)

In Elkins, the plaintiff suffered an injury in September 1969 while working on the defendants’ premises. Approximately 10 months after the injury, the plaintiff filed an application for workers’ compensation benefits against the defendants. A workers’ compensation referee determined that the plaintiff was not an “employee” of the defendants under the applicable Labor Code provisions at the time of his injury and concluded that he was therefore ineligible for workers’ compensation benefits. The plaintiff filed a personal injury action seeking recovery for the same injury that served as the basis of his workers’ compensation claim. On appeal, the Elkins court held that the statute of limitations had been tolled for the period during which the plaintiff pursued his workers’ compensation remedy.

In the wake of Elkins, the California Supreme Court has stated that in order to prove the applicability of the equitable tolling doctrine, a party must establish “three elements: ‘timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff. The timely notice requirement essentially means that the first claim must have been filed within the statutory period and must alert the defendant in the second claim of the need to begin investigating the facts which form the basis for the second claim.

Contrary to the trial court’s memorandum of decision, there is neither legal nor logical support for the court’s ruling that in order for equitable tolling to apply, Hopkins was required to have been unsuccessful in seeking workers’ compensation benefits before the Elkins doctrine will apply. “While it is true that the plaintiff in Elkins was unsuccessful in his attempt to obtain workers’ compensation benefits (id. at p. 413), there is nothing in the opinion that suggests that this fact was necessary to the court’s conclusion.” The matter is remanded with directions for the trial court to determine whether Hopkins has demonstrated the three required elements of equitable tolling.

State regulators have cited a La Mesa real estate firm with $91,865 in penalties following a workplace tree-trimming accident that killed an employee on Nov. 12, 2013. Joshua Alan Pudsey, 42, was in the bucket of a boom lift when he was struck by a 25-foot branch that fell from a 60-foot-tall eucalyptus tree at a home at 4450 Date Ave. in La Mesa. The property was owned by Three Frogs, Inc., which buys, renovates and resells residential property, according to an investigation by California’s Division of Occupational Safety and Health, also known as Cal/OSHA. Pudsey was a general construction laborer who had been working for the company for three months before the accident, and he did not have the training or experience needed to safely trim a tree of that size, Cal/OSHA found.

State law requires employers to hire qualified tree workers to direct all work on trees taller than 15 feet. Pudsey and other workers on the job were not trained to use the 80-foot aerial lift they used to cut the tree, nor were they provided with eye protection or harnesses to protect them from falls while working on the lift, the Cal/OSHA investigation found.

Three Frogs owner Scot Wolfe said his firm was cooperating with state regulators. “OSHA’s just doing their job,” Wolfe said. “We don’t fault them for doing their job at all.” Wolfe declined to answer other questions about his company but did offer condolences to Pudsey’s family. “A man died on the job,” Wolfe said. “Our hearts go out to his family, obviously.”

Altogether, Cal/OSHA has issued 13 citations against Three Frogs, including eight serious citations. (A violation is considered serious when it could directly result in death or serious physical harm.) Five of the serious citations were related to the accident and the company’s violation of the tree removal standard, such as the company failure to maintain an Injury and Illness Prevention Plan or a written Heat Illness Prevention Program, according to Cal/OSHA. “When safety takes a backseat to the bottom line, tragedies such as this one will result,” said acting Cal/OSHA Chief Juliann Sum in a press release. “Companies that cut corners by not abiding by workplace safety regulations put their employees at direct risk of numerous hazards.”

The state Division of Labor Standards Enforcement ordered the company to stop work on Nov. 13 after the state Labor Commissioner found the company failed to provide worker’s compensation coverage for its employees. The stop order will remain in place until Three Frogs demonstrates that a workers’ comp policy is in effect, regulators said. The investigation into labor practices is ongoing, and regulators also have an ongoing criminal investigation.

The Division of Workers’ Compensation (DWC) has posted a proposed “Guideline for the Use of Opioids to Treat Work-Related Injuries” to its online forum. Members of the public may review and comment on the proposal until April 21, 2014.

“Opioid misuse is a national concern. California is on the forefront of providing appropriate care and improving outcomes by issuing these guidelines,” said Department of Industrial Relations Director Christine Baker.

Currently, the Medical Treatment Utilization Schedule (MTUS) addresses the use of opioids in the Chronic Pain Medical Treatment Guidelines. DWC intends to remove the existing parts of the MTUS that refer to opioid use and instead revise the MTUS to include this proposed guideline. “We created separate guidance for the use of opioids in the California workers’ compensation system to highlight the importance of appropriately treating workers in pain while also ensuring safety when using these medications,” said DWC Executive Medical Director Dr. Rupali Das. “A key goal of this guideline is to ensure restoration of function and early return to work following an injury.”

The proposed “Guideline for the Use of Opioids to Treat Work-Related Injuries” was developed in cooperation with the multidisciplinary Medical Evidence Evaluation Advisory Committee (MEEAC). The recommendations are derived from the best available evidence-based guidelines and scientific studies. The proposed guideline provides a set of best practices for considering opioids in the management of acute, subacute, post-operative, and chronic pain related to work-related injuries. Recommendations include when it is appropriate to consider adding opioids to the treatment regimen; medications to avoid when using opioids; methods and tools to monitor patients on opioids; the need to educate patients about the adverse effects of opioid use; and responsible storage and disposal of opioids. In addition, useful tools and resources for patient management are provided. The guideline is divided into four parts: Part A, a summary, abbreviated treatment protocols, and introduction; Part B, complete recommendations, and appendices containing useful tools; Part C, findings to support the recommendations; and Part D, a compilation of recommendations from a review of existing guidelines.

The Guideline is comprehensive. Part B is 104 pages. A number of provisions are a “step forward” from our current MTUS provisions. For example, one of the new concepts of the guideline states “If opioids are prescribed, the Controlled Substance Utilization Review and Evaluation System (CURES), California’s Prescription Drug Monitoring Program should be accessed. If CURES indicates the simultaneous use of other narcotic medication, opioid use may be contraindicated.”

Use of the CURES database to determine if a patient is abusing opioid medication or not providing an accurate history is well intentioned. Use of drug databases are becoming the national standard, and a well accepted tool to curb some abuse. However, the proposed Guideline uses the term “should” throughout the document which waters down the proposed regulation. In this regard the Guideline takes two steps backward. The term “should” means a person is “encouraged” to do something while “must” and “shall” mean they are required to do it. The main use of should in modern English is as a synonym of ought to, expressing quasi-obligation, appropriateness, or expectation. When used in statutes, contracts, or the like, the word “shall” is generally imperative or mandatory. Hence, a medical practitioner is not required to follow many of the provisions of the new Guideline, and can simply avoid any regulatory language preceded by the term “should.”

The MTUS regulations can be found in Title 8 of the California Code of Regulations, beginning with section 9792.20. The proposed guidelines will be in a new section, 9792.24.4. The forum can be found online on the DWC forums web page.