Category: Daily News

Bertha Perez sustained injury to her back while working for World Variety Produce as a produce packer on August 27, 2010. On May 1, 2011, she underwent surgery, and lien claimant, Monrovia Memorial Hospital, provided the employer’s carrier, Zurich North America, with an invoice for $67,497.95.

Pursuant to the recommendations made by its bill review company, Zurich paid $15,857.48. Monrovia Memorial Hospital filed its lien for the balance of its invoice.

On May 6, 2015, a WCJ ordered lien claimant and defendant to forward all relevant documentation and/or evidence as to the value of the lien claimant’s services to a jointly selected bill review expert, Stelzner and Kyle Consulting.

On March 14, 2016, the matter proceeded to a lien conference and the parties set the matter for trial. Over the next few years a number of hearings took place regarding the issues surrounding the lien of Monrovia Memorial Hospital.

On September 18, 2018, defendant filed a Petition for Restitution/Reimbursement in which it alleged that “[r]ather than provide the information to IBR as directed by the Court, the lien claimant submitted the billing again to defendant which accidentally paid it in full.” Zurich requested reimbursement for the $51,640.47 check issued to Monrovia Hospital on May 16, 2018 for unjust enrichment. On October 26, 2018, the matter proceeded to trial on defendant’s claim for restitution and defendant’s petitions for sanctions, costs and fees.

On January 3, 2019, the WCJ issued Amended Findings and Orders, ordering lien claimant to pay restitution in the sum of $51,640.00 as well as sanctions, costs and attorneys’ fees under section 5813 and WCAB Rule 10561. Lien claimant sought reconsideration of the WCJ’s January 3, 2019 Amended Findings and Orders. On March 25, 2019, the WCAB granted reconsideration based upon a lack of substantial evidence to support the WCJ’s findings.

Because the WCJ did not admit any exhibits or testimony during the October 26, 2018 trial, the WCAB panel was unable to determine whether lien claimant would be unjustly enriched if it retained the disputed payment or whether sanctions were justified. Thus it rescinded the WCJ’s decision and returned the matter to the trial level for further proceedings.

The matter appeared again for trial on September 23, 2019, at which time the parties submitted exhibits and testimony. On November 8, 2019, the WCJ issued the disputed F&O, finding that, pursuant to the IBR calculation issued on November 12, 2015, the reasonable value of lien claimant’s services was $15,857.48, which defendant had previously paid.

The WCJ also ordered that lien claimant pay defendant $51,640.00 in restitution as a result of unjust enrichment. The WCJ also found that lien claimant and its representative employed bad faith, frivolous litigation tactics in violation of section 5813 and WCAB Rule 10561 warranting sanctions in the amount of $2,500.00 payable to the WCAB. The WCJ also awarded defendant costs and fees to be determined by subsequent court order.

After this second Petition for Reconsideration was filed by Monrovia, the November 8, 2019 F&O was affirmed in the panel decision of Perez v World Variety Produce –ADJ7447035 (May 2024).

In its Petition for Reconsideration, lien claimant contends that the WCJ erred by 1) awarding restitution to defendant, as there is no evidence of unjust enrichment, and 2) awarding sanctions, costs, and fees, as there is no evidence that it engaged in bad faith or frivolous conduct in violation of section 5813 or WCAB Rule 10561. Both assertions were rejected by the WCAB panel.

“Restitution is an equitable remedy which has primarily been utilized by courts to prevent unjust enrichment. Under certain circumstances it has been held that administrative tribunals such as the [WCAB] may appropriately employ equitable remedies. Such use by the Board would seem particularly justified, for example, when fraud has been charged and proven.” (American Psychometric Consultants, Inc. v. Workers’ Comp. Appeals Bd. (Hurtado) (1995) 36 Cal.App.4th 1626, 1645-1646 [60 Cal.Comp.Cases 559], citations omitted.)

In this case, the WCJ found that lien claimant engaged in improper conduct leading to unjust enrichment, where it circumvented defendant’s typical processes for handling disputed lien claims. Specifically, the WCJ found that lien claimant intentionally bypassed defendant’s internal procedures by demanding payment from its medical review department, rather than its claims department, and that lien claimant knew or should have known that the resulting payment in full was made in error, particularly where the bill amount was still being litigated.

Here, the WCJ found that sanctions should issue as a result of lien claimant’s willful failure to comply with the court’s May 6, 2015 Findings and Order requiring it to forward all documentation showing the value of its services for IBR for roughly three years.

The California Department of Industrial Relations and the Labor Commissioner’s Office completed the first cycle of funding for the Workers’ Rights Enforcement Grant Program, which provides opportunities for public prosecutors in California to develop and implement wage theft enforcement programs in their regions.

This funding creates opportunities for public prosecutors in California to prosecute wage theft and deter employers from engaging in unlawful labor law practices in the workplace. The grants will enable prosecutors to address wage theft cases in their jurisdictions and provide resources so they can address exploitative labor industry trends, barriers workers confront in reporting violations and obstacles to holding perpetrators accountable within their respective communities.

Labor Commissioner Lilia García-Brower said “Wage theft is a persistent problem, and this funding helps address it in local communities across our state. The 17 applications we received demonstrate prosecutors’ commitment to curtail and eradicate this abusive behavior. We look forward to continuing our work with public prosecutors, community organizations and industry leaders to eliminate this serious and costly crime.”

The 17 public prosecutors who applied for the grant will receive awards as detailed below:

Alameda District Attorney – $335,935
Contra Costa District Attorney – $720,000
Fresno City Attorney – $720,000
Long Beach City Prosecutor – $414,392
Los Angeles City Attorney – $317,543
Los Angeles County Counsel – $475,000
Los Angeles District Attorney – $733,351
Napa District Attorney – $102,531
Oakland City Attorney – $425,655
Orange County District Attorney – $750,000
San Diego City Attorney – $669,251
San Diego District Attorney – $750,000
San Francisco City Attorney – $410,000
San Francisco District Attorney – $160,451
San Mateo District Attorney – $739,396
Santa Clara County Counsel – $679,220
Sonoma District Attorney – $147,275

The Department of Industrial Relations’ Division of Labor Standards Enforcement (California Labor Commissioner’s Office) combats wage theft and unfair competition by investigating allegations of illegal and unfair business practices.

The Labor Commissioner’s Office in 2020 launched an interdisciplinary outreach campaign, “Reaching Every Californian.” The campaign amplifies basic protections and builds pathways to affected populations, so workers and employers understand legal protections and obligations, as well as the Labor Commissioner’s enforcement procedures. Californians can follow the Labor Commissioner on Facebook and X (Twitter).

At the outset of the COVID-19 pandemic, and for some time thereafter, many businesses were forced to curtail their operations or close entirely. Some of these businesses sought coverage for their financial losses from their commercial property insurers under conventional first-party “all risk” or “open peril” insurance policies.These policies generally predicate coverage on “direct physical loss or damage” to the insured property or nearby property.

State and federal courts across the country have considered whether conventional property insurance policies provide coverage for pandemic-related losses, including whether the COVID-19 virus satisfies the threshold requirement of direct physical loss or damage to property. California courts have reached different conclusions on this issue,

The question arises in the context of a civil lawsuit filed by Another Planet Entertainment, LLC against its property insurer, Vigilant Insurance Company.

Another Planet operates venues for live entertainment. It suffered pandemic-related business losses when its venues closed, and Vigilant denied Another Planet’s subsequent claim for insurance coverage. Another Planet filed suit in federal district court, alleging that the actual or potential presence of the COVID-19 virus at its venues or nearby properties caused direct physical loss or damage to property and triggered coverage under its insurance policy.

The district court granted Vigilant’s motion to dismiss for failure to state a claim, and Another Planet appealed. According to the Ninth Circuit, the issue on appeal “is whether [Another Planet’s] allegations, if taken as true, were sufficient to show ‘direct physical loss or damage to property’ as defined by California law.” Because the Ninth Circuit concluded that resolution of this question of California law could determine the outcome of the case pending before it, the Ninth Circuit certified the question to the California Supreme Court.

The California Supreme Court concluded that “consistent with the vast majority of courts nationwide, that allegations of the actual or potential presence of COVID-19 on an insured’s premises do not, without more, establish direct physical loss or damage to property within the meaning of a commercial property insurance policy” in the published case of Another Planet Entertainment, LLC v. Vigilant Insurance Co -S277893 (May 2023).

Under California law, direct physical loss or damage to property requires a distinct, demonstrable, physical alteration to property. The physical alteration need not be visible to the naked eye, nor must it be structural, but it must result in some injury to or impairment of the property as property.

“The factual allegations of Another Planet’s complaint, which we accept as true for purposes of this proceeding, do not satisfy this standard. While Another Planet alleges that the COVID-19 virus alters property by bonding or interacting with it on a microscopic level, Another Planet does not allege that any such alteration results in injury to or impairment of the property itself. Its relevant physical characteristics are unaffected by the presence of the COVID-19 virus.”

“In rare situations, a property may suffer direct physical loss where it is not damaged in a conventional sense, including where a chemical contaminant or noxious odor infiltrates the property and renders it effectively unusable or uninhabitable. In such a case, the contaminant or odor may cause direct physical loss, but only where the source of the property’s unusability or uninhabitability is sufficiently connected to the property itself. This situation may arise when the effect of the contaminant or odor is so lasting and persistent that the risk of harm is inextricably linked or connected to the property.”

“While we conclude Another Planet’s allegations are insufficient, and it appears that such allegations represent the most common allegations in support of pandemic-related property insurance coverage, we cannot and do not in this proceeding determine that the COVID-19 virus can never cause direct physical loss or damage to property. Our contemplation of the virus and the affected property is necessarily limited by Another Planet’s factual allegations. ”

David A. Stallworth was an American professional basketball player. He played in the National Basketball Association (NBA) for eight seasons and was a member of the New York Knicks’ 1969-70 championship-winning team.

He filed an Application for Adjudication of Claim for an alleged CT injury to multiple areas while employed as a professional athlete by the Phoenix Suns, the Washington Capitols/Bullets/Wizards, and the New York Knicks, from July 1, 1965 to July 1, 1975. This Application was filed on September 6, 2013. However, he died during the course of litigation on March 16, 2017.

The parties proceeded to trial on November 29, 2018, and framed for decision issues including personal and subject matter jurisdiction, injury arising out of and in the course of employment (AOE/COE), and the running of the statute of limitations under Labor Code2 section 5405. The WCJ heard the testimony of applicant’s spouse and received other evidence including the deposition transcript of David Stallworth taken before he died. The case was submitted, and then further documentation was received,

Ultimately on May 30, 2019, the WCJ issued the F&O finding that “applicant’s contracts were entered into outside of the State of California.” and also found that “California does not have a legitimate and substantial interest in applicant’s claim to compel defendant to adjudicate the claim under the laws of California.”

The Opinion on Decision addressed the issue of personal jurisdiction over the defendants by explaining that “all teams involved have purposefully appeared in California by traveling to the state to participate in league games as well as scheduling future games in California.” The WCJ thus found personal jurisdiction over the party defendants.

Turning to the issue of subject matter jurisdiction, the Opinion on Decision observed that applicant’s spouse testified at trial that the applicant told her in 1995 that he had signed a contract in 1965 at his mother’s house in California. Applicant’s spouse further testified that applicant was in California to appear on the Glen Campbell show, and that he related to her that he signed the contract before making his appearance. However, applicant’s deposition testimony, taken prior to his passing, was that he had signed only two contracts over the course of his career, and that his contracts were signed in New York or Maryland.

The WCAB granted reconsideration to provide an opportunity to further study the legal and factual issues. Having completed it’s review, the WCAB issued a Decision After Reconsideration affirming the Findings and Order, issued on May 30, 2019 in the panel decision of Stallworth v Washington Capitols, Washington Bullets et., al, – ADJ9082985; ADJ10467720; ADJ10467734; ADJ10467683 (May 2024).

On reconsideration Applicant asserts that the testimony of applicant’s spouse is the more credible and supports a finding of contract formation in California in 1969 or 1970. Applicant also contends that irrespective of contract formation, subject matter jurisdiction is established by the fact that applicant sustained two heart attacks while playing in California, resulting in his hospitalization and missing the following two seasons.

Subject matter jurisdiction has been described as “the power of the court over a cause of action or to act in a particular way.” (Greener v. Workers Comp. Appeals Bd. (1993) 6 Cal.4th 1028 [58 Cal.Comp.Cases 793, 795].) Pursuant to Labor Code sections 3600.5(a) and 5305, a hiring in California provides this state with sufficient connection to the employment to support adjudication of a claim of industrial injury before the WCAB. (Alaska Packers Assn. v. Industrial Acc. Com. (Palma) (1934) 1 Cal.2d 250, affd. (1935) 294 U.S. 532 (Palma); Bowen v. Workers’ Comp. Appeals Bd. (1999) 73 Cal.App.4th 15, 27 [64 Cal.Comp.Cases 745] [‘an employee who is a professional athlete residing in California, such as Bowen, who signs a player’s contract in California furnished to the athlete here by an out-of-state team, is entitled to benefits under the act for injuries received while playing out of state under the contract’]; Johnson, supra, 221 Cal.App.4th at p. 1126].)

Here, the WCJ has identified two competing inferences regarding contract formation that may be drawn from the evidentiary record. Applicant’s Petition asserts the WCJ erred in weighing the evidence because applicant was not competent to testify at deposition. However, the WCJ’s Report identifies and addresses each of applicant’s contentions, offering specific excerpts of the transcript to provide context to the assertions contained in applicant’s Petition. The WCJ concludes that a careful review of the deposition testimony establishes that applicant was able to testify competently and respond to the questions posed.

The Report also notes that applicant offered no objection to moving ahead with testimony on the grounds of competency at the time the deposition was taken, and that applicant was represented by present counsel during the entirety of the deposition. In fact, applicant’s counsel interposed his own examination questions during the deposition. Nor was any objection to the admissibility or the veracity of the deposition testimony offered at the time the transcript was offered into evidence at trial.

In addition to the WCJ’s reasoning, the WCAB panel also note that the record is silent as to the actual contracts in question. Nor does the record establish the nature, number, or character of the contracts entered into, the parties thereto, or other evidence that would speak to the formation of a California contract of hire.

The WCAB said “we discern no evidence of considerable substantiality that would warrant disturbing the WCJ’s determinations as to the credibility of the witnesses or the relative weight of the evidence. Accordingly, we decline to disturb the WCJ’s determination that ‘applicant’s contracts were entered into outside of the State of California.’ “

In Federal Insurance Co. v. Workers’ Comp. Appeals Bd. (Johnson) (2013) 221 Cal.App.4th 1126 [78 Cal.Comp.Cases 1257] the court noted that Johnson played but one game in California out of 34 games played during the 2003 season, and that “a single basketball game played by a professional player does not create a legitimate interest in injury that cannot be traced factually to one game.” (Id. at p. 1130.)

Here, applicant avers that he played two games in California during which he sustained a cardiac infarction, and that the quality and severity of those instances were sufficient to warrant the Appeals Board’s exercise of subject matter jurisdiction over the claimed injury.

However, as the WCJ explains in his report, “Johnson involves a two-part test in determining if California has a legitimate interest in adjudicating an applicant’s claim of cumulative trauma where the cumulative trauma injury is the only connection with the State. This test considered the qualitative as well as quantitative nature of applicant’s exposure.”

The WCAB panel said it agrees with the WCJ’s analysis and conclusion that the evidentiary record does not establish, to a preponderance of the evidence, that the games applicant played in California were sufficient, under either a quantitative or qualitative analysis, to support the exercise of California’s subject matter jurisdiction over the claimed injury.

A Los Angeles jury awarded $58,358,431 to a Palmdale train yard worker who slipped and fell on top of a train while performing electrical repairs at the defendant Kinkisharyo’s International, LLC Palmdale train manufacturing yard.

The action (Case No. MC027686) arises from a February 2, 2016 incident whereby Plaintiff Pablo Scipione, now 46, was performing electrical work on the premises of a business owned, managed and/or operated by Defendant Kinkisharyo International, LLC, and identified as the Train Factory. Plaintiff alleges slipping off the wet roof of a train, and fell, thereby causing injuries. Plaintiff filed a complaint on January 25, 2018 for negligence. On March 20, 2018, Plaintiff filed a first amended complaint for negligence.

According to the lawsuit, the Plaintiff was working as an independent contractor for Altech Services when he was called into work at 2:00 AM and told by his supervisor that the repairs had to be completed by 5:00 AM. After taking only a few steps, he slipped and suffered a micro-fracture in his left foot.

Following the incident, the Plaintiff went back to work the next day and worked full-time for nearly a year and a half. Two months after his fall, he visited a foot doctor for the first time and received surgery. After his foot surgery, the Plaintiff was diagnosed with Complex Regional Pain Syndrome, that he claimed was a debilitating disease that forced him out of work.

According to the lawsuit, Kinkisharyo was responsible for ensuring every employee’s safety. However, the defendant required a far too demanding pace of work, showing indifference to the workers’ safety and proper safety protocols.

According to the allegations of the complaint, the defendant’s negligent attitude toward worker safety and unreasonable timeline to complete the repairs caused the Plaintiff’s injuries.

“An injury this severe was bound to happen,” said PARRIS Law Firm partner Khail A. Parris. “Employees frequently complained to supervisors that the station was poorly lit, and yet nothing was done to ensure a safe working environment,” Parris added.

Throughout the three-phase trial, Kinkisharyo disputed liability at every turn. During the first phase, the defense argued that the Plaintiff was its employee and that he could only seek recovery for his injuries through the workers’ compensation system. The jury unanimously rejected that defense.

During the second phase, the defense disputed how the fall happened, disputed that the Plaintiff fractured his foot, disputed the CRPS diagnoses, and disputed the nature and extent of every category of the Plaintiff’s damages. The jury found in favor of the Plaintiff and awarded compensatory damages of $54,158,431.00.

The third phase focused on punitive damages, where the jury was to determine an award large enough that would punish Kinkisharyo and deter it from future unsafe practices. As a result, the jury awarded the Plaintiff $4,200,000 in punitive damages.

According to the Parris lawfirm  the Plaintiff made multiple offers to settle. In March 2020, Plaintiff offered to settle for $8,000,000. In July 2020, Plaintiff made another statutory offer for $5,000,000. In March 2022, Plaintiff made a final offer to settle for $3,000,000. The defendant rejected them all. As a result, pre-judgment interest alone will add well over $20,000,000 to the judgment amount.