Category: Daily News

Decedent Tara O’Sullivan, worked as a police officer for the City of Sacramento when she died from a gunshot wound on June 19, 2019.

Krista Horvath and Ms. O’Sullivan were sisters. Just prior to her death, decedent and Ms. Horvath agreed to move in together with Ms. Horvath’s fiancé. This would allow Ms. Horvath to save money for her planned wedding. They had signed a lease before the death, and intended to split the utility bills in half.

The Death Without Dependents Unit primarily argued at trial that Ms. Horvath would merely have been a roommate of decedent and that sharing the bills as part of a family pot is insufficient to establish dependency.

A Findings and Order issued which found that competing applicant, Krista Horvath was a partial dependent of deceased employee Tara O’Sullivan, and dismissed the claim of the Death Without Dependents Unit.

The WCAB panel denied the Death Without Dependents Unit Petition for Reconsideration in the panel decision of Krista Horvath for Tara O’Sullivan (Deceased), Death Without Dependents v. City OF Sacramento, (ADJ12601349)

Dependency is determined as of the time of injury, and may be found to be total or partial, depending on the facts established. Dependency may be defined as reliance upon another person for support. Partial dependents are those who at the time of injury have means of support other than the deceased’s contributions.

To prove partial dependency, it is sufficient to show that the claimants looked to the deceased’s contributions to maintain his or her accustomed mode of living and that the same living standard can no longer be maintained. (Atlantic Ricl1field Co. v. WCAB (Arvisu) (1982) (42 Cal.Comp.Cases 369) The contribution must be made in goods or money, and the value of services is not considered. (Great W. Power Co. v. IAC (Savercool) (1923) 192 Cal. 724.)

Death Without Dependents primarily argued at trial that applicant would merely have been a roommate of decedent and that sharing the bills as part of a family pot is insufficient to establish dependency.

While this is true, the facts establish that decedent intended to take on a greater share of the family pot so that applicant could save for her wedding.

If only applicant and decedent lived together, the splitting of rent and utilities would likely be insufficient to establish dependency as it is a true family pot with equal expenses split.

However, here, three people were to occupy the apartment, not two. Decedent agreed, in effect, to subsidize applicant’s rent and utilities. That agreement is sufficient to establish a partial dependency where the applicant is decedent’s sister.

The petition for reconsideration focuses on the undisputed facts that this was a promise for support prior to decedent s passing and that no actual support occurred prior to death. On this point, the argument proffered by DWD was too narrow.

A mere promise of future support is not, as a rule, a basis for a dependency finding, except where circumstances indicate a bona fide assumption of responsibility for support without opportunity to make contributions prior to the injury.” (Wings West Airlines v. Workers’ Comp. Appeals Bd. (1986) 187 Cal. App. 3d 1047, 1052.)

The significant fact here is that they signed a lease together prior to Ms. O’Sullivan’s death. By signing a lease contract, there was a bona fide assumption of responsibility for support, which occurred prior to death. The only reason that Ms. O’Sullivan did not make payments prior to her death was lack of opportunity.

The Workers’ Compensation Appeals Board has issued a notice of public hearing regarding proposed additions and amendments to its Rules of Practice and Procedure.

The online public hearing is scheduled to begin at 9 a.m. on Friday, September 24 via the Zoom meeting platform.

Members of the public may also submit written comments until 4 p.m. that day using this submission form. If written comments are timely submitted, it is not necessary to present oral comments at the public hearing.

The primary purpose of this rulemaking is to formalize the processes for the remote hearings, electronic filing, and electronic service that developed during the novel coronavirus pandemic.

The WCAB’s notice of the proposed rulemaking, the text of the proposed regulations, and the initial statement of reasons can be found on its rulemaking page.

Equal weight will be accorded to oral and written comments. However, the WCAB prefers written comments submitted electronically, which must be submitted using the comment submission form. Electronic comments submitted in any other format will not be accepted or considered.

Written comments may also be submitted by mail to the address below. Hard copy comments should consist only of text-based narratives, should not contain any other formatting such as letterheads or graphics, and should not rely on the use of color or images to convey information not conveyed in the text-based narrative. Improperly formatted hard-copy documents will be subject to rejection and may not be accepted or considered.

Workers’ Compensation Appeals Board
Attention: Julie Podbereski, Regulations Coordinator
455 Golden Gate Avenue
Ninth Floor
San Francisco, CA 94102

The WCAB will consider all properly submitted comments and encourages all interested members of the workers’ compensation community to participate in this important process.

To attend the online public hearing or present statements or arguments orally, please use the following link:

https://dir-ca-gov.zoom.us/j/85768405804?pwd=ckZwdkRrZk82eHk4M2tpTVlvaldwUT09
Password: 211916

Proposition 22, California’s gig workers law, which allows companies like Uber and Lyft to treat workers as independent contractors – not employees – has been ruled unconstitutional and unenforceable by a Superior Court judge.

Voters approved the law as ballot initiative Proposition 22 in November, with companies like Uber, Lyft and DoorDash spending more than $200 million to campaign for the measure. Labor organizations, including the Service Employees International Union, opposed it.

Proposition 22 passed with 59% of the vote and was backed by a 4-1 margin by rideshare drivers who favored the flexibility given to them by the law.

In January, a group of Uber and Lyft drivers, along with the SEIU, filed a lawsuit seeking to have the measure overturned. The law exempts gig employers from providing benefits and protections to workers, but requires that they offer healthcare subsidies and minimum hourly earnings.

California Superior Court Judge Frank Roesch issued a ruling late Friday, that the law illegally “limits the power of a future legislature to define app-based drivers as workers subject to workers’ compensation law,” adding that “The entirety of Proposition 22 is unenforceable.” He also ruled that it was unconstitutional to that the law required any future amendments to have a seven-eighths vote of approval to pass the legislature.

Judge Roesch took issue with the part of the law that requires any future California state law concerning collective bargaining for gig workers to comply with the Prop 22 law. “It appears only to protect the economic interest of the network companies in having a divided, ununionized workforce, which is not a stated goal of the legislation,” he wrote.

However all of the provisions of Prop 22 will remain in effect until the appeal process is complete.

Geoff Vetter, a spokesperson for the Protect App-Based Drivers and Services Coalition (PADS), which includes Uber, Lyft, DoorDash, and Instacart, said in a statement emailed to The Verge that they plan to appeal. The judge “made a serious error by ignoring a century’s worth of case law requiring the courts to guard the voters’ right of initiative,” Vetter wrote, noting that a majority of California voters had approved the measure.

Bob Schoonover, president of SEIU California State Council praised the judge’s ruling in a statement emailed to The Verge.

The ruling caused investors to dump shares of both companies, with Lyft declining as much as 4% and Uber falling up to 2.77% by Monday.

Both companies are supporting a similar measure in Massachusetts that is expected to be on the ballot next year. New York is also looking into the matter.

State law authorizes the California State Auditor to develop a state high-risk government agency audit program.  The office implemented this program to improve the operation of state government by identifying, auditing, and recommending improvements to state agencies and statewide issues at high risk for waste, fraud, abuse, or mismanagement or for having major challenges associated with their economy, efficiency, or effectiveness.

It first designated the State’s management of federal funds related to COVID-19 as a high-risk statewide issue in August 2020 based on the significant amount of funding granted to the State, the urgent need for the funding, and the rapid nature of the allocation of this funding to state departments, among other factors

In the new August 19 report, the State Auditor Elaine Howle voiced concern regarding the state’s mismanagement of $71 billion in federal COVID-19 funding.

An audit report released on Thursday indicated that the state’s Finance, Employment Development and Public Health departments should remain at the top of the list of issues which pose a risk to the state’s financial health as a result of mismanagement.

It reported in January 2021 (2020-628.2) that significant weaknesses in EDD’s approach to fraud prevention had led to billions of dollars in improper unemployment benefit payments. EDD did not take substantive action to bolster its fraud detection efforts for its unemployment insurance program until months into the pandemic, resulting in payments of about $10.4 billion for claims that it has since determined may be fraudulent. Specifically, EDD waited about four months to automate a key antifraud measure, took incomplete action against claims filed from suspicious addresses, and removed a key safeguard against improper payments without fully understanding the significance of the safeguard.

In September 2020, because of fraud concerns, EDD directed Bank of America to freeze 344,000 debit cards (accounts) that it used to provide benefit payments to claimants. However, EDD did not have a plan in place to ensure that it could unfreeze those accounts found to belong to legitimate claimants, and it has been slow to acknowledge its role in freezing these accounts.

In January 2021, it reported (2020-610) that Finance’s allocation of funds from the federal Coronavirus Relief Fund (CRF) had resulted in smaller counties receiving significantly less funding per person than larger counties. Finance’s inequitable allocation of CRF funds increased the risk that smaller counties’ COVID-19 related funding needs were unmet.

Its April 2021 audit (2020-612) of Public Health’s oversight of approximately $467 million in federal COVID-19 funding found that, although the State met or exceeded targets for testing individuals for COVID-19, contact tracing throughout the State lagged behind case surges that far exceeded the department’s initial planning. Fewer-than-expected tracing staff and an influx of new cases resulted in only a small fraction of COVID-19 cases undergoing the full contact-tracing process. Because of the mismanagement of federal COVID-19 funds by several state agencies, it remains a high-risk statewide issue.

The updated August 2021report indicted that these three departments were to be “retained on the high risk list.”

Ian Czirban was charged with a number of regulatory crimes following a fatal July 2016 accident involving his bulldozer, which had been assisting the California Department of Forestry and Fire (Cal Fire) at a wildfire in Monterey County.

After a bench trial, the trial court convicted Czirban of procuring or offering a false or forged instrument, tax evasion, failure to collect, account for, or pay taxes, and misdemeanor failure to secure payment of workers’ compensation insurance.

For these convictions, the trial court suspended imposition of sentence and placed Czirban on felony probation for three years with various conditions, including the payment of a $10,000 fine under Labor Code section 3700.5.

On appeal, Czirban contends that his convictions for tax evasion, failure to pay taxes, and failure to secure payment of workers’ compensation insurance must be reversed because he did not have an employment relationship with his bulldozer drivers, an element of those offenses.

The parties agreed at trial that the trial court should resolve this factual question central to counts 5, 6, and 7 under the multifactor test articulated in Borello – not the three-part – “ABC test” – adopted by the California Supreme Court for wage order claims, a year before Czirban’s trial, in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, 916, 964.

Given the timing of the criminal acts alleged against Czirban, the court concluded that the parties’ agreement regarding the applicability of Borello was proper.

Czirban relies on Borello, 48 Cal.3d at p. 349 and Lara v. Workers’ Comp. Appeals Bd. (2010) 182 Cal.App.4th 393, 396, 398 (Lara) to argue that the question of worker status.

The conviction was affirmed in the published case of People v Czirban. The terms of probation were however reversed and the matter submitted back to the trial court with instructions.

Examining the trial evidence under the Borello test, the court concluded that there is sufficient evidence of an employment relationship between Czirban and his bulldozer drivers during the relevant period.

The evidence demonstrates that it was Czirban who decided whether to accept 24-hour resource assignments from Cal Fire (including the Soberanes fire assignment), knowing that he would need to enlist other bulldozer drivers to complete them. Czirban thus controlled the overall scope of the work, the number of operators needed for any assignment he accepted, who those other operators would be, and the overall period during which the operators would work.

During Czirban’s chosen wildfire assignments, his bulldozer drivers also were not “engaged in a distinct occupation or business.”

These circumstances demonstrate Czirban’s “right to control the manner and means of accomplishing the result desired,” (Borello, supra, 48 Cal.3d at p. 350) i.e., to have certain workers operate his bulldozer to fulfill his chosen wildfire assignments so he could obtain a higher rate of compensation from Cal Fire.