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Stakeholders Pick Sides In S.B. 863 Constitutional Litigation

Angelotti Chiropractic, Mooney and Shamsbod Chiropractic, Christina-Arana and Associates, Joyce Altman Interpreters, Scandoc Imaging and Buena Vista Medical Services filed a lawsuit last July in the United States District Court contesting the constitutionality of certain provisions of SB 863, and seeking to avoid payment of millions of dollars in lien activation fees before the end of 2013. The suit requests declaratory, injunctive and other relief. Plaintiffs allege that they filed valid liens prior to December 31, 2013 that constitute “vested property rights.” They allege that the mandatory dismissal provisions of the activation fee law unconstitutionally interferes with those rights.

Christina Arana and Associates Inc. holds approximately 4,500 liens, Joyce Altman Interpreters, Inc. holds approximately 4,745 liens, Sandoc Imaging Inc. holds approximately 2,300 liens and Buena Vista Medical Services Inc. allege they hold approximately 20,888 liens. In total Plaintiffs allege they hold “tens of thousands of liens” which require activation fees in an amount of “more than $2 million” and the Plaintiffs allege they presently lack the ability to pay the lien activation fees.

In September, the Defendants Christine Baker, Ronnie Caplane and Destie Overpeck filed a motion to dismiss the lawsuit. The hearing was set for October 24.

With respect to the constitutional issue, the DIR argued that In order to state a claim under the Fifth Amendment’s takings clause of the US Constitution, “a plaintiff must establish that he possesses a constitutionally protected property interest” and that his property was taken without just compensation. Two categories of regulatory action generally will be deemed per se takings for Fifth Amendment purposes. First, where government requires an owner to suffer a permanent physical invasion of its property, it must provide just compensation. A second categorical rule applies to regulations that completely deprive an owner of all economically beneficial use of the property. The DIR argues that Plaintiffs’ liens are not protected property rights for purposes of the takings clause because, under California law,Plaintiffs’ rights to recover on the liens are not vested interests. Unlike a common law right, a statutory remedy does not vest until final judgment. When a pending workers’ compensation claim rests solely on a statutory basis, and when the rights under the statute have not vested in a final judgment, the legislature can modify or entirely repeal the right at any time. Numerous citations were given in the DIR brief to support this argument.

In October, the California Chamber of Commerce entered the litigation requesting a order allowing them to appear as “amicus” or friend of the court, and participate in the debate. Its Amicus Brief supports the arguments provided by the DIR. Essentially it argues that there is no vested property rights in a pre-judgment lien, and cites California Court of Appeal cases in support of this argument.

To balance the litigation, the California Society of Industrial Medicine and Surgery (CSIMS), and the California Workers’ Compensation Service Association, (CWCSA) also requested an order allowing it to appear as amicus in the case. Its filing claims that CSIMS is a non-profit organization comprised of individual physicians, medical service providers and medical groups that provide medical-legal evaluation and medical treatment to California’s injured workers. And CWCSA says it is a non-profit organization representing the individuals and entities that provide document recovery, reproduction, retention and management, language interpretation and translation services, medical transportation and other services to assist California’s injured workers.

CSIMS and CWCSA argue that implementation of the activation fee results In three separate acts of impermissible taking of property rights and also deprives the plaintiffs of due process. Because of the retroactive activation fee requirement it says that “many members of CSIMS and CWCSA will be deprived of their opportunity to be heard, because due to the financial costs, they will not even make it to Court and incur an automatic dismissal without a hearing.” The final section of its brief pleads “Don’t Destroy the System.” It goes on to claim that “amici believe that the retroactive application of an “activation” fee on individuals liens that span decades of time should be viewed as an impact that is so negative that the transactional instability resulting from the imposition of unforeseen costs would adversely impact the entire Act and cause all injured workers who require service to be shunned and viewed as undesirable.”

Unfortunately, the Motion to Dismiss was not heard on October 24 as scheduled. Judge Wu continued the hearing to November 4, 2013 at 8:30 am. After reading the voluminous documents filed in this case by both sides thus far, it would seem that the Plaintiffs will have an uphill battle on that day as they attempt to convince a federal judge that there is good cause to proceed in federal court with a case that seeks to find the imposition of a lien filing fee by the WCAB to be a violation of the US Constitution.

U.C. Davis Cop Settles Controversial Comp Case for $38K

The former campus cop seen in a viral video pepper-spraying student protesters will receive worker’s compensation totaling $38,059. The Davis Enterprise reports that John Pike, 40, of Roseville, reportedly suffered depression and anxiety brought on by death threats he and his family received after the Nov. 18, 2011, confrontation at an Occupy UC Davis encampment. Workers’ Compensation Administrative Law Judge Harter approved the settlement agreement between Pike and the University of California on Oct. 16.

“This case has been resolved in accordance with state law and processes on workers’ compensation,” said UC Davis spokesman Andy Fell in an email message. Sacramento attorney Jason Marcus, who represented Pike, declined to comment on Wednesday.

Bernie Goldsmith, a Davis lawyer supportive of the protesters, said that the settlement “sends a clear message to the next officer nervously facing off with a group of passive, unarmed students: Go on ahead. Brutalize them. Trample their rights. You will be well taken care of.”

The state’s Disability Evaluation Unit determines permanent disability ratings based on doctors’ reports. Richard Lieberman, a Piedmont psychiatrist acting as the agreed-upon expert, rated Pike’s disability as “moderate,” according to a Jan. 5 psychiatric report released by the state Department of Industrial Relations in response to a public records request. Pike faced “continuing and significant internal and external stress with respect to resolving and solving the significant emotional upheavals that have occurred” in his life and had not shown evidence of substantial improvement, concluded Lieberman, who spoke with Pike twice in 2012. A second psychiatrist, Bernard Bauer of San Francisco, blindly scored Pike’s responses on a battery of psychological tests.

Opponents of the settlement complain that Pike will get more money than those he pepper-sprayed. In January, UCD agreed to pay $1 million to settle a federal suit. Twenty-one plaintiffs who were sprayed or arrested were to receive $30,000 each. Another 15 who also had claims approved were to be paid $6,666 apiece.

Chief Matt Carmichael fired Pike in July 2012, following eight months of paid administrative leave. During that time, separate investigations came to different conclusions about how Pike responded when seated students, with their arms locked together, would not clear a path for officers leading away cuffed protesters. A public task force, led by former California Supreme Court Justice Cruz Reynoso, faulted both police and administrators for their roles in incident. Its investigation found that Pike did not need to use the pepper spray, at all, and that he used a spray not sanctioned for use by the department and that he doused the protesters from an unsafe distance. An internal affairs investigation resulted in a panel calling only for Pike’s suspension, according to a confidential report obtained by the Sacramento Bee.

At the time of his psychiatric evaluation, Pike was appealing his termination. UCD has not rehired him.

The former Marine will receive retirement benefits for his 11 years of campus employment. He was being paid an annual salary of $121,680 at the time he was fired.

Pike also ordered a second officer, Alexander Lee, to spray protesters. Citing state law and university policy, UCD has revealed no more about Lee. He also ceased to be employed by the campus in July 2012.

Carmichael’s predecessor, Annette Spicuzza, retired during the pepper-spray investigation.

UCD and its Police Department have undertaken reforms aimed at preventing similar confrontations with student protesters. This month, the campus has hosted public meetings gathering feedback on both a draft freedom of expression policy and a plan for an independent civilian oversight board for the department.

49ers’ Construction Site Deaths Trigger Cal/OSHA Investigations

A state workplace safety agency today announced it is resuming an investigation into a company building an elevator at the San Francisco 49ers’ planned new stadium in Santa Clara where a man was killed in June. The San Jose Mercury News says that the California Division of Occupational Safety and Health reported it had rescinded its decision giving Schindler Elevator a notice that no violation occurred in the June 11 death of Donald White, Cal-OSHA spokeswoman Erika Monterroza said.

Cal-OSHA also revealed some new details in the probes of the deaths of White and Edward Erving Lake Jr., who died at the Levi Stadium construction site on Oct. 14. The $1.3 billion Levi Stadium project is to serve as the new home for the 49ers when it is completed next summer. The choice Cal-OSHA made Tuesday to revive its investigation into White’s death came after “some questions were raised, so they are looking at the evidence,” Monterroza said.

The agency, which is not releasing the new questions concerning the White investigation, had mailed Schindler the notice of no violation on Oct. 14, Monterroza said. The agency has until Dec. 11, six months after the accident that killed White, to complete the investigation and decide whether Schindler violated state safety codes, according to Monterroza.

Cal-OSHA can fine a company $7,000 for general and regulatory violations, $25,000 for a serious violation and from $5,000 to $70,000 for a willful violation of occupational safety codes, according to Greg Siggins, a Cal/OSHA spokesman.

White, 63, an experienced mechanic for subcontractor Schindler, was killed while standing beneath the counterweight of an elevator at the stadium site, according to Cal-OSHA public information officer Kathleen Hennessy. Cal-OSHA has since revealed that before the fatal accident, White “was in communication with the person operating the elevator and was aware the elevator was in operation, but did not move,” Hennessy said.

“It’s still somewhat of a mystery” why White did not move while knowing the elevator was coming down toward him, Hennessy said.

The investigation into Lake, an employee of subcontractor Gerdau Ameristeel, found that the 61-year-old truck driver was killed when a bundle of rebar being unloaded from his truck by a forklift fell off the side of his truck and on top of him, Hennessy said. The 30-foot-long bundle contained 30 pieces of steel rebar, used to reinforce concrete, Hennessy said.

“This is another open investigation,” Hennessy said. “For the moment, no citations have been issued, but they might be.”

Jonathan Harvey, project co-director for Turner Devcon, the stadium project’s general contractor, said that Cal/OSHA had not released information to him about the investigations and so he could not comment.

Aptos Builder and Employees Guilty of Comp Fraud

59 year of Jeff Thranow, of Aptos California, owner of Costa Bella Builders was sentenced on two felony counts of insurance fraud this week.

After paying almost $115,000 in restitution Thranow was then sentenced to an additional one year in jail.

Other Costa Bella employees were also sentenced for their role in the fraud. Vittorio Castelli was sentenced to 6 months in jail for one count of felony insurance fraud. Kathleen Castelli was sentenced for one misdemeanor count of insurance fraud and one count of failure to pay payroll taxes.

The California Department of Insurance, Morgan Hill Office, received information from employees about possible insurance fraud. CDI and investigators from the Santa Cruz County District Attorney Workers’ Compensation Fraud Unit secured search warrants for the business records of the company.

The joint investigation revealed multiple violations relating to the payment of insurance premiums and payroll taxes.

The Employment Development Department also joined in the investigation upon discovering the defendants’ failure to pay payroll taxes to EDD. The investigation uncovered the company stopped paying payroll taxes and workers comp insurance and began paying employees in cash.

Defendants were ordered and paid $85,000 in premium restitution and back taxes of almost $30,000 at sentencing.

Employers are required to register their businesses and to report and pay taxes to EDD for all employees. Unemployment Insurance Code felony violations have a maximum penalty of three years in prison and/or up to $20,000 fine. Failure to secure workers’ compensation insurance has a penalty of up to one year in jail and up to double the amount of the premium owed as a fine payable to the California State Treasury for the Uninsured Employers Fund. The Workers’ Compensation Unit of the District Attorney’s Office investigates and prosecutes cases involving applicant fraud, employer fraud, premium fraud, provider fraud and employers who do not carry workers’ compensation insurance.

Insurance Commissioner Approves WCIRB Regulatory Filing

On August 9, 2013, the WCIRB submitted its January 1, 2014 Regulatory Filing to the California Department of Insurance proposing changes to the Insurance Commissioner’s regulations contained in the California Workers’ Compensation Uniform Statistical Reporting Plan – 1995  (USRP), the California Workers’ Compensation Experience Rating Plan – 1995  (ERP), and the Miscellaneous Regulations for the Recording and Reporting of Data–1995  (Misc. Regs.). The Insurance Commissioner held a public hearing on September 30, 2013 to consider the proposed changes.

On October 17, 2013, the Commissioner issued a Decision approving all of the WCIRB’s proposed changes as filed. Among these changes approved effective January 1, 2014 are:

  • ;Numerous changes to the Standard Classification System contained in Part 3 of the USRP
  • Changes to data reporting requirements to conform to national data reporting specifications
  • Amendments to the audit rules to allow for the use of collective bargaining agreements to validate an employee’s hourly wage rate for dual wage classification assignment purposes
  • Amendments to facilitate the bifurcation of pure premium rate filings and regulatory filings

In addition, the Commissioner approved a number of regulatory changes to be effective on January 1, 2015 including amendments to the USRP pertaining to policy reporting requirements and significant amendments to the ERP limiting the impact on an employer’s experience modification of a single claim incurred during the experience period to 25 points.

The Commissioner’s Decision pertains only to the WCIRB’s January 1, 2014 Regulatory Filing and does not address the WCIRB’s January 1, 2014 Pure Premium Rate Filing which contains proposed changes to pure premium rates for 2014. The Commissioner has scheduled a public hearing regarding January 1, 2014 pure premium rates for October 28, 2013. See related story, Hearing Date Set for January 1, 2014 Pure Premium Rate Filing.

The WCIRB cannot issue experience modification for policies incepting January 1, 2014 and beyond until the Commissioner issues a Decision with respect to the pure premium rate filing.

The WCIRB is currently updating the USRP, ERP and Misc. Regs. to reflect the Commissioner’s Decision. Once completed, copies of these documents will be posted to the Publications and Filings section of In the interim, the WCIRB has created the Quick Reference Guide 2014 summarizing the approved changes to the regulations.

Implaintium CEO Convicted of Spinal Implant Overcharges

The San Jose Mercury News reports that the CEO of a spinal implant company was convicted of overcharging the county and San Jose for workers’ compensation reimbursements, prosecutors said.

Trudy Maurer, 68, is head of Implantium, a San Francisco-based company that purchases surgical implants from manufacturers and supplies them to hospitals. Implantium bills workers’ compensation insurance carriers for the devices and is allowed by law to make $250 profit per device. According to prosecutors, the company altered invoices submitted to San Jose and Santa Clara County for workers’ compensation claims, exaggerating the price paid to manufacturers of surgical spinal implants.

Santa Clara County prosecutor Katharina Wells said Maurer and another employee, Tigran Shahsuvaryan, were charged last April with the crimes.

Maurer pleaded no contest on Thursday to four counts of felony insurance fraud. She was fined $50,000 and given a six-month probationary sentence, during which she will be electronically monitored, according to court documents. Implantium previously returned $130,000 to the overcharged insurance companies.

After Maurer serves her sentence, the counts will be reduced to misdemeanors.

“Workers’ compensation fraud impacts all employers in California, pushing rates higher,” said prosecutor Katharina Wells.

The company overbilled insurance carriers for the cost of the implants, inflating the manufacturer’s price by as much as tens of thousands of dollars, prosecutors said.

Santa Clara County and San Jose are self-insured for workers’ compensation.

Prosecutors said it was one of the first such cases against a medical device supplier in the state.

Shahsuvaryan’s case is still pending. Wells said he faces the same charges as Maurer.

One Million Fake Xanax Pills Seized.

Swiss customs agents have seized one million fake tablets of anti-anxiety drug Xanax at the Zurich airport,authorities said on Friday. “Counterfeit medicine is one which is deliberately and fraudulently mislabeled with respect to identity and/or source,” states the World Health Organization (WHO). “Counterfeiting can apply to both branded and generic products and counterfeit products may include products with the correct ingredients or with the wrong ingredients, without active ingredients, with insufficient active ingredients or with fake packaging.”

The counterfeit tablets, packed in four crates and weighing 400kg, had originated in China, according to Swissmedic, the Swiss Agency for Therapeutic Products. “Analyses in the Swissmedic laboratory revealed that the drugs, which are prescribed to treat symptoms of acute anxiety, contained no active ingredients whatsoever,” Swissmedic said in a statement. The Swiss regulator said in June that it had already seized about 90 shipments this year representing a high-potential health risk. It also has ordered the shutdown of Internet websites trading drugs illegally. “According to experts, the drugs would be unrecognisable as counterfeits at a first glance.” Xanax is a drug manufactured by Pfizer used to treat severe anxiety or panic disorder. The fake tablets were destroyed.

Developing countries are a massive market for counterfeit medications, a massive trade worth billions of dollars that is often deadly. According to the WHO, fake drugs range from antibiotics to birth-control medicines, anti-tetanus serums, antimalarials, organ transplant drugs, heart disease and diabetes. In parts of Asia, Africa and Latin America, fraudulent medicines are thought to amount to as much as 30 per cent of the market, according to the UN drug agency.

Also making up a large part of medicines sold online, fake medicines can contain the wrong dose of active ingredients or toxic substances such as rat poison, according to the UN drug agency.

Back in July 2012, Chinese police seized $182 million worth of counterfeit medicine in one month during a countrywide sweep. Drugs found during the seizure included medication for diabetes, high blood pressure, and even rabies. Unlike drugs found at the Zurich airport, most of the medication did contain harmful substances.

Governments are fighting to safeguard the distribution of legitimate drugs and crack down on counterfeit products. Systematic checks of medical shipments are carried out every year, and imports of bogus medicines have been declining in Switzerland, Swissmedic said in June. Counterfeit drugs generated an estimated $75 billion in revenue in 2010, according to the National Association of Boards of Pharmacy. Each year more than 100,000 people around the world may die from substandard and counterfeit medications, according to an estimate by Amir Attaran, an associate professor at the University of Ottawa, and Roger Bate, an economist at the American Enterprise Institute.

The United States has a growing problem with counterfeit drugs. In 2012, tainted steroids killed 11 people near Boston and sickened another 100. In another case, vials of the cancer medicine Avastin were found to contain no active ingredients. The vials were sourced in Turkey, shipped to Switzerland, then Denmark, finally to the United Kingdom from which they were exported to U.S. wholesale distributors. The Wall Street Journal reported that the U.S. wholesale distributor was hired by Canada Drugs, which also owns, a retail pharmacy website that sells prescription medication internationally, with a focus on the American market.

In 2007-08, 149 Americans died from a contaminated blood thinner called Heparin that was legally imported into the United States. Investigated by the FDA Office of Criminal Investigations, the Albers Medical investigation is the most prolific example to date.

On August 21, 2005, the U.S. Attorney’s Office for the Western District of Missouri issued a press release announcing that three businesses and eleven individuals were indicted for their involvement in a $42 million conspiracy to sell counterfeit, smuggled and misbranded Lipitor and other drugs and for participating in a conspiracy to sell stolen drugs. As part of this investigation, FDA initiated a recall of more than 18 million Lipitor tablets, which ranks as the largest recall in the history of criminal investigations of counterfeit medications. Participants in this scheme conspired to purchase and sell counterfeit, misbranded and illegally imported drugs. Foreign versions of Lipitor and Celebrex were smuggled into the U.S. from South America and re-sold after being re-packaged to conceal the true origin of the drugs. Counterfeit Lipitor also was manufactured in South America and then smuggled into the U.S. where it was co-mingled with the genuine foreign Lipitor and sold in the U.S.

In addition, participants conspired to buy, sell and traffic almost eight million dollars worth of stolen Glaxo Smith Kline and Roche drugs, using fake pedigrees to launder the drugs and thereby concealing that they were stolen. There also were charges related to the sale of counterfeit Procrit, as well as counterfeit and misbranded Serostim and Neupogen. Procrit is an injectable drug used in the treatment of anemia and Neupogen is an injectable drug used by cancer patients to stimulate the production of white blood cells in order to decrease the incidence of infections.

California Comp Has “Interesting But Quiet” Legislative Year

An article in the Insurance Journal says it was an “interesting but quiet year” for California Lawmakers on Workers’ Comp.  Bills signed by Gov. Jerry Brown included laws on pharmaceutical compounding, preventing out-of-state athletes from filling for workers’ comp, funding for the state’s prescription drug monitoring program and more. There were 17 total, according to a list compiled by the California Workers’ Compensation Institute (CWCI). But overall, it was a quiet year in terms of workers’ comp laws, as expected.

Pharmacy Billing (SB 146, Lara): Eliminates the requirement that copies of prescriptions be sent with requests for payment unless the provider entered into a written agreement to do so. Also enables any entity that was denied payment of a pharmacy bill submitted from Jan. 1 to March 31, 2014 to resubmit the bill if payment was denied for failure to include a copy of the prescription. It allows payers to request copies of prescriptions for a review of records of prescriptions dispensed by a pharmacy.

Electronic Transmittal of Policy Info (SB 251, Calderon): Allows insurers to electronically transmit offers of renewal, notices of conditional renewal and offers of coverage, and sets requirements for doing so.

Compounding Pharmacies (SB 294, Emmerson): Prohibits pharmacies without a California Sterile Compounding Pharmacy License from compounding or dispensing sterile drug products for injection, ocular administration or inhalation, and requires out-of-state pharmacies compounding these products for shipping to California to have such a license as well. Also requires the pharmacies to allow annual inspections and removes the option for accreditation from outside agencies.

SB 863 Technical Corrections (SB 375, Senate Labor Committee): Corrects erroneous cross-references included in Senate Bill 863 – including changing a reference to “administrative hearing” interpreters to “medical examination” interpreters – and making technical, clarifying, and conforming changes with respect to the provisions.

OSHA Standards – Meal/Rest/Recovery Periods (SB 435 Padilla): Applies Cal/OSHA’s heat illness prevention standard and other Cal/OSHA regulations to laws covering meal breaks and rest and recovery periods.

Paid Leave of Absence for San Diego Lifeguards (SB 527, Block): Enables full-time, year-round lifeguards employed by the City of San Diego to be eligible for “4850 leave” following a work injury.

Overprescribing Investigations (SB 670, Steinberg): Bolsters state medical board investigations of doctors suspected of overprescribing. Enables the board during investigations involving the death of a patient to inspect and copy the patient’s medical records by providing a written request declaring that after reasonable efforts, it is unable to locate or contact the patient’s beneficiary or representative. The bill also expands the definition of unprofessional conduct to include a physician’s repeated failure without good cause to be interviewed by investigators and allows an administrative law judge to issue an interim order limiting the physician’s authority to prescribe, furnish, administer or dispense controlled substances.

CURES (SB 809, DeSaulnier): Assesses an annual $6 fee on provider and dispenser licenses to fund the Controlled Substance Utilization Review and Evaluation System (CURES) monitoring program. The changes also require the state Medical Board to develop and distribute to physicians and acute care hospitals materials on assessing a patient’s risk of abusing or diverting controlled substances and information about CURES, and require the state to streamline the application and approval process for medical providers and pharmacists to access CURES.

Workers’ Compensation Death Benefits for Dependent Children (AB 607, Perea): Enables a deceased employee’s totally dependent children to receive workers’ comp death benefits irrespective of whether the employee’s surviving spouse is totally dependent.

Occupational Safety Standards for Hazardous Drugs (AB 1202, Skinner): Requires the Occupational Safety and Health Standards Board to establish safety and health standards for health care facilities with employees who work with or near antineoplastic drugs used in chemotherapy, which may cause rashes, infertility, miscarriages, and birth defects, and have been linked to a variety of cancers. The standards must be consistent with, but not exceed, National Institute for Occupational Safety and Health recommendations.

Limits on Workers’ Comp Claims by Professional Athletes (AB 1309, Perea): Restricts cumulative trauma and occupational disease claims by professional athletes in five sports (baseball, basketball, football, ice hockey and soccer), especially those who played for out-of-state teams, under specified conditions. According to the bill’s author, the California Insurance Guarantee Association has paid nearly $42 million in claims to professional athletes since 2002. An average of 34 new claims are being filed each month.

Interpreters (AB 1376, Hernandez): Delays DWC’s workers’ comp qualified medical interpreter certification regulations, required by SB 863, from taking effect until March 1, 2014.

State Compensation Insurance Fund Executive Appointments (AB 1394, Assembly Ins. Committee): Allows the State Fund Board of Directors to appoint a chief medical officer, a chief actuarial officer, a chief claims operations officer and a chief of internal affairs.

As for the next session or the next, both workers’ pundits expect to hear a growing cacophony from the chorus of workers’ comp stakeholders as the positive and negative impacts of SB 863 begin to be felt.

Worker’s Comp Does Not Create DFEH Employment Relationship for Volunteer Firrefighter

The City of Sierra Madre hires and fires volunteer firefighters, sets the rules and regulations for their work, requires them to work specific shifts and to arrive on time, and requires them to report to supervisors and to work within the framework of the Sierra Madre Fire Department (SMFD). Volunteer firefighters also receive training and are covered by workers’ compensation. The City keeps records of the volunteer firefighters’ service. It pays volunteer firefighters a stipend of $1 per day, paid every 90 days. It also pays voluntary firefighters approximately $33 per day when “hired out” with a SMFD strike team of firefighters sent to assist other agencies in fighting non-local large-scale fires. None of that was enough to make a volunteer firefighter an employee for DFEC discrimination claims according to a new case from the Court of Appeal.

In 2007 Kaylin Enriquez applied for a position as a firefighter for the SMFD, after completing her firefighter training. She was appointed to work as a probationary volunteer firefighter. After learning that she had been accepted to the training program she resigned from her other job with FirstMed Ambulance. Enriquez eventually completed her probationary period as a volunteer firefighter. On April 10, 2008 Enriquez began the background check procedure required for employment by the Sierra Madre Police Department (SMPD).

Meanwhile, Enriquez had witnessed incidents that several firefighters in the SMFD claimed involved sexual harassment. Enriquez then received a phone call from SMPD Chief Marilyn Diaz, who stated the police department was putting Enriquez’s employment on hold pending resolution of issues regarding Enriquez’s status with the SMFD.

On August 2, 2008 the SMFD issued Enriquez a disciplinary notice that wrongly accused her of ignoring an admonishment not to discuss her interview or the investigation with anyone but her “authorized representative.” The notice stated that she had created an uncomfortable working environment by discussing the incidents with City staff. The notice stated that Enriquez was “[d]ishonest, [d]isobedient; [took a]ctions that adversely affected the safety of employees or others; . . . [engaged in h]arassment of fellow employees; [and engaged in v]iolation of any city policy.” The City refused to remove the disciplinary notice after Enriquez explained inconsistencies and errors in the notice.

Enriquez’s prospective employment with the SMPD, originally scheduled to begin August 4, 2008, was postponed initially for six months and then indefinitely. The SMPD ultimately withdrew its employment offer “as a result of the Disciplinary Notice and subsequent action.” At the end of 2009 Captain Kristine Lowe of the SMFD informed Enriquez via Facebook message that the SMFD was placing Enriquez on leave from her position as volunteer firefighter because she had not yet obtained her Emergency Medical Technician certification/accreditation (EMT certification). The EMT training requirement had not been enforced in the two years Enriquez had been a volunteer firefighter. Enriquez attempted to enroll in the first available EMT training course upon learning of the certification requirement, but all of the classes were full and there was no waiting list.

Enriguez filed a civil action with 22 causes of action. As to the employment-related causes of action (causes of action 1-20 and 22), the City argued that Enriquez did not receive “significant remuneration” for her services and therefore was not an employee and could not state causes of action for employment discrimination. The trial court sustained a demurrer without leave to amend. The Court of Appeal affirmed the dismissal in the unpublished case of Enriquez v. City of Sierra Madre.

The key legal issue on appeal was whether the plaintiff was an employee and therefore protected from wrongful termination and employment discrimination under FEHA. To satisfy the hiring prong of the thirteen factors articulated by the Supreme Court in Community for Creative Non-Violence v. Reid [1989], a purported employee must establish the existence of remuneration, in some form, in exchange for work. Individuals who are not compensated for their services are not employees for purposes of discrimination statutes. Substantial indirect compensation can satisfy the threshold requirement of remuneration. This can include state-funded disability pension, . . . survivors’ benefits for dependents, . . . scholarships for dependents upon disability or death, . . . bestowal of a state flag to family upon death in the line of duty, . . . benefits under the Federal Public Safety Officers’ Benefits Act when on duty, . . . group life insurance, . . . tuition reimbursement for courses in emergency medical and fire service techniques, . . . coverage under a Workers Compensation Act, . . . tax-exemptions for unreimbursed travel expenses, . . . ability to purchase, without paying extra fees, a special commemorative registration plate for private vehicles, . . . and access to a method by which [the volunteer firefighter] may obtain certification as a paramedic.

Enriquez argued that her receipt of workers’ compensation benefits was sufficient to give her employee status. The Court of Appeal decided that this was not enough. Enriquez did not receive any retirement, health care, insurance, tuition reimbursement or other similar benefits that would support a finding that she was an employee. The court in Estrada v. City of Los Angeles (2013) 218 Cal.App.4th 143, which involved a volunteer reserve police officer, recently rejected the argument that receipt of workers’ compensation benefits alone confers employee status in a DFEH claim.

Goleta City Council Objects to Closure of Local WCAB Office

The workers’ compensation office in Goleta – the only one in the county and open since 1999 – is being closed on November 30 with all of its clients and employees transferred to the Oxnard branch. The state’s Department of Industrial Relations (DIR) announced the decision last month.

At the City Council meeting of October 1, 2013 Goleta Mayor Aceves sought Council concurrence to agendize a letter opposing the proposed closure of the local Division of Workers’ Compensation District Offices by the State Department of Industrial Relations (DIR).

The agenda item noted that “It is unclear from the press release or the articles written on the closure what the exact motivation is to close this office and whether or not it is part of a statewide consolidation effort. No local hearing or outreach was conducted by the State Division of Workers’ Compensation (DWC) regarding this proposal. Moreover, the goals to be achieved and options considered were never shared with the public. Accordingly, the public was never given the opportunity to be part of the solution.”

“We regret any inconvenience,” said DIR spokesperson Peter Melton. “Because [Oxnard is] less than an hour away, the decision was made to merge the offices.” Melton added that the closure is mainly due to the building’s monthly rent – more than $20,000 – and the increased space at the Oxnard office. He added that the Goleta branch – the only one closing right now – is one of the smallest out of the state’s 24, with only one judge and 1,254 hearing requests so far this year.

Aceves said he hopes the letter results in a public hearing or perhaps a compromise in which cases are held in Goleta a couple of days per week. There is no word on whether other cities in the county plan on taking similar action. Employees at the Goleta office said they couldn’t comment on the closure.

Megan Compton, an attorney for the Santa Barbara law firm Ghitterman, Ghitterman and Feld, which handles many workers’ compensation cases, said she worries how this closure will impede not only people with legal representation but also those without. And those with severe disabilities and/or without cars will be further hindered, she said, as the trip from Goleta to Oxnard would take more than three hours and four buses.