Tag: 2013 News

Gov. Jerry Brown has signed into law a bill that will prevent many professional athletes from filing workers’ compensation claims in California.

The bill, AB 1309, applies to athletes who played for teams outside of California or had limited experience playing on California teams. According to the story in the Los Angeles Times, they will no longer be allowed to make claims in the Golden State for cumulative trauma, a category of injury incurred over time that includes arthritis as well as certain brain injuries like chronic traumatic encepalopathy.

In recent years, thousands of athletes who played for teams elsewhere in the country have filed such claims in California because its workers’ compensation system – unlike many others – recognizes cumulative trauma. In addition, the state’s statute of limitations had a provision allowing some workers to file years or even decades after retirement. Some players made filings having played only a handful of games in California over the course of their careers.

Backers of the bill, including the National Football League, Major League Baseball and the other major sports leagues, argued that such filings were overly costly and that the athletes should be filing in their home states. “This new law sets reasonable standards to close an expensive loophole unique to California and to professional sports,” Dennis Kuhl, chairman of the Los Angeles Angels of Anaheim baseball team, said in a statement.

Opponents, among them the players’ unions and organized labor, argued that it unfairly excludes one class of workers from the state’s system. Flight attendants and truck drivers – who also spend time in California, though they may not be employed in the state – will still be allowed to file such claims. In addition, they argued that the players were filing in California because they were prevented from making such claims in the states where they played, either due to a more restrictive statute of limitations or because the state doesn’t recognize cumulative trauma.

Although some high-profile athletes, including NFL Hall-of-Famer Deion Sanders and MLB most valuable player Juan Gonzalez, have made such claims, claims data show that most claims by athletes were filed by lesser-known professionals, including many who played only in the minor leagues.

The new law applies only to football, baseball, basketball, ice hockey and soccer players. Under a provision adopted shortly prior to its passage in the Senate in late August, it is effective as of Sept. 15, meaning any claims filed after that date by out-of-state athletes will not be valid.

AB 1309 passed overwhelmingly in both houses of the state legislature, garnering only five “no” votes in its final version.

The legislative victory follows news last month that the NFL had reached a tentative $765-million settlement with more than 4,500 former players who had sued the league over allegations that it did not properly warn them about the risks associated with concussions.

Jorge Mora was working as a carpenter for CLP Resources Inc. in 2009 when he was directed to use a table saw unsecured to a base and lacking a protective guard. He stepped on debris, lost his balance, and placed his hand on the unguarded table saw blade. Mora sustained serious cuts to his left hand. Mora filed an application for an award under Labor Code section 4553, which grants additional benefits to a worker who is injured by the “serious and willful misconduct” of his employer. Mora’s first theory alleged the injury was due to the willful failure of the employer to provide a safe place of work. His second theory alleged that the employer had knowingly violated a safety order in directing this work.

Mora testified he had 13 to 15 years’ work experience as a carpenter. He began work for CLP, a temporary placement agency, in April 2008, and had been assigned to several different jobsites prior to his accident. Mora was supervised by Lieb, who provided his tools and told him what to do. CLP had instructed Mora to contact Marlo Vasquez, a CLP employee, if “here was a problem, or if anything was not right,” On direct examination, Mora testified he told Vasquez “here were a lot of things that were not right on the job site where he was working”and Vasquez “should check it out.” As Mora was about to list the specific safety problems, however, Vasquez told him “there was no work, and he should just be careful.” After that, Vasquez turned back to his computer and gave Mora no opportunity to provide more information. No one from CLP came to inspect the site. Mora acknowledged he had not told anyone at CLP specifically about the unsecured, unguarded table saw, although he said it was one of the safety problems he intended to discuss with Vasquez.

The only CLP employee to testify was a company safety official. He said CLP inspects the work sites of the contractors to whom its employees are assigned and had inspected the Lieb jobsite in October 2008, about two months prior to Mora’s injury. In the inspection, CLP had found no safety violations. If the unguarded table saw was present, it was not located by the inspector, although it had been “mentioned by the individuals who previously worked on the job site.” The employee speculated the inspector might have missed the table saw because Lieb removed his tools from the site each day to prevent theft.

CLP was cited by Cal-OSHA for having an inadequate injury and illness prevention program and for the hazardous state of the table saw. Cal-OSHA ultimately reduced the proposed penalty against CLP, possibly after concluding that CLP was unaware of the hazardous nature of the saw.

The WCJ found that Mora’s injury was proximately caused by the willful and serious misconduct of CLP and awarded appropriate damages under Labor Code section 4553. In explaining her decision, the WCJ found the use of an unguarded table saw to be “an inherently dangerous proposition” likely to cause serious injury and noted Cal-OSHA had cited both CLP and Lieb for use of the unsafe saw. Although she found “no clear evidence that management representatives at CLP . . . knowingly violated the safety order” and “no[] evidence that a CLP managing representative ‘turned his mind’ to the dangerous situation here.”

Reconsideration was denied. The Court of Appeal annulled the serious and willful award in the unpublished case of CLP Resources v. WCAB (Mora).

The mere failure to perform a statutory duty is not, alone, willful misconduct. It amounts only to simple negligence. To constitute ‘willful misconduct’ there must be actual knowledge, or that which in the law is esteemed to be the equivalent of actual knowledge, of the peril to be apprehended from the failure to act, coupled with a conscious failure to act to the end of averting injury. “The inadequate inspection cited by the WCJ and the Appeals Board as misconduct could not have constituted the type of intentional conduct required for liability under Labor Code section 4553.”

The Commission on Health and Safety and Workers’ Compensation (CHSWC) has released on its website for public comment and feedback the report, “Formulating a Copy Services Fee Schedule.”

Senate Bill (SB) 863 requires the Administrative Director of the Division of Workers’ Compensation, in consultation with CHSWC, to adopt a copy services fee schedule. In 2013, CHSWC worked with Berkeley Research Group of Emeryville, CA to analyze copy services practices in the workers’ compensation system, review pricing options and prepare a report summarizing relevant fees in the marketplace and policy issues that may be addressed during the rulemaking process.

The Commission spoke to a number of different stakeholders involved in the procuring, preparation of and payment for copying and related services. It became clear almost immediately that the system was riven with distrust and that it had essentially broken down, with each side feeling justified in its approach to pricing. Applicant copy services accuse payers of unreasonable delay or refusal, and they build the cost of collections and bad debts into their fees. Payers accuse the applicant copy services of puffing the bills, and they reject the bills or offer only discounted payments.

The report says that it is essential to break this vicious cycle of inefficiency, which is why it is proposing a lump sum payment system. The report therefore recommends a flat fee schedule to cover all costs related to obtaining and reproducing a set of records up to 1,000 pages if the bill is paid timely and without dispute, and a higher fee to include the additional business expenses if the bill has to go into collection or dispute resolution. It also concluded that the major costs of providing documents copies were the costs of retrieving the documents, rather than the actual per page copy costs, which is one reason why a lump sum payment proposal disregards the number of pages in a copy set. The cost of each initial copy set should be $103.55. Additional copy sets should be made available at $.10 per page if paper and for a nominal lump sum fee of $5.00 if electronic.The advantage of a flat rate is to simplify the process, as well as to reduce the number of areas of potential disagreement between Applicant copy services and payers.

In order to prevent abuses of the new system, CHSWC recommend requiring that each subpoena be supported by the declaration of the attorney seeking documents that the subpoena was issued in good faith, is not duplicative and seeks documents necessary to pursue the applicant’s claim.

The report recommend requiring the use of a registered service to qualify for payment. Registered copiers cannot be convicted felons, must have a notary public involved in the management, must be bonded, must carry an identification card issued by the county clerk, and are statutorily responsible for maintaining the integrity and confidentiality of information obtained (Business & Professions Code section 22450 et seq.). This would be one way of trying to protect injured workers’ privacy as well as possibly reducing unprofessional practices.

CHSWC invites public comment and feedback by email at chswc@dir.ca.gov or in writing to: Commission on Health and Safety and Workers’ Compensation (CHSWC).\1515 Clay Street, 17th Floor Oakland, CA 94612 or Fax at (510) 622-3265 through October 15, 2013 and by oral comments at the CHSWC meeting on October 17, 2013. Additional opportunities for public comment will be available when the Administrative Director begins the rulemaking process to establish a copy services fee schedule.

Citing savings to the State, the DWC announced last month that the Goleta WCAB District Office will close and merge with the Oxnard office on November 30. The last day that hearings will be scheduled in Goleta will be Friday, November 29.

All cases currently in Goleta will be transferred to the Oxnard District Office, approximately 45 miles south. The seven DWC employees in Goleta will also transfer to the Oxnard office. The DWC claims that Goleta closure will consolidate resources and create savings for future DWC needs, including hiring. Oxnard has sufficient space to accommodate the Goleta staff, who will begin work there on Monday, December 2.

And the California Applicant Attorneys Association is not thrilled with the consolidation. It has called upon the DWC to either reverse its decision to close the Goleta WCAB at the end of November, or, at a minimum, continue to hold hearings in Goleta on injured workers’ insurance claims.

“The planned closure of the Goleta WCAB will impose considerable hardship on injured workers, particularly those without the ability to travel nearly one hour to Ventura or San Luis Obispo counties to pursue their insurance claims. For example, there is no public transportation that would get injured workers to Oxnard for an 8:30am hearing, which is customary,” said Jill Singer, CAAA Central Coast Chapter president. “We call for the DWC to keep this board office open, or at a minimum, continue to hold hearings in Goleta, so that workers have access to the justice they deserve.”

Singer said that area workers would now have no office in the area’s largest population center, the Santa Barbara area, and would have to travel up to 100 miles to pursue their workers’ compensation insurance claims for medical care and disability compensation for their work injuries, “There was no public notice of this decision. The area’s largest employer is UC Santa Barbara, so closing the Goleta board will affect employers who will also have to spend hours traveling to and from a faraway board for every case hearing. The closure would have great financial consequences for small businesses. Instead of taking an hour or two, or even being on call if their testimony is necessary, employers are now going to have to take up to a day or more off work to travel to Oxnard for hearings and trials.”

Newly elected CAAA President Jim Butler said, “The DWC reduced employers’ assessments to pay for the system of reviewing injured workers’ claims, and is now closing this regional board. This reduces injured workers’ access to the State’s system to pursue medical care and disability compensation. We call upon the DWC to reverse this decision, or to follow its precedent in Palm Springs, Ukiah and Bishop, and continue to hold hearings on work injury cases in Goleta after closing its permanent office there.”

CAAA said the closure will impact the poorest and most seriously injured workers the most, as there is no adequate or efficient transportation for those without cars. The closure would especially harm the large number of farmworkers – and farmers – in this agricultural area. “Injured workers would have to spend multiple hours on public transportation to travel to Oxnard or San Luis Obispo, which is most difficult for the most severely injured,” said Singer.

April Williams was employed by The Home Depot. In 2003, she was injured on the job. Williams claimed workers’ compensation benefits and in December 2005, the parties signed a “Stipulation and Award and/or Order” by which The Home Depot agreed to provide “benefits and treatment [to Williams] in accordance with the opinions of the AME, Dr. Abeliuk.” Thereafter, Williams received medical treatment, including surgeries;

Williams disagrees that her condition is permanent and stationary, and claims she was “forced” to settle her claim; She made several appeals to the WCAB but the case has not resolved.

She then filed a pro-per request for removal of her case to the superior court,

Williams claimed in her civil action that the WCAB failed to require that she receive prompt and adequate medical treatment; She also claimed the WCAB allowed The Home Depot to hold her in involuntary servitude; Williams asserted that removal of her pending workers’ compensation matter to the superior court was necessary because she is mentally disabled, Her requests to the Department of Industrial Relations for reasonable accommodation under the Americans with Disabilities Act were not granted, and hence she claims her due process and civil rights have been violated;

Following a hearing, the trial court denied the request for removal, concluding that it has no jurisdiction over the matter. Williams appealed. The Court of Appeal sustained the dismissal in the unpublished case of Williams v. Home Depo.

The Court of Appeal concluded that the “trial court correctly ruled that it lacked jurisdiction to remove the workers’ compensation matter to the superior court.”

Labor Code 5955 provides, “No court of this state, except the Supreme Court and the courts of appeal to the extent herein specified, has jurisdiction to review, reverse, correct, or annul any order, rule, decision, or award of the [WCAB], or to suspend or delay the operation or execution thereof, or to restrain, enjoin, or interfere with the appeals board in the performance of its duties,” and gives the appellate courts the power to issue a writ of mandate “in all proper cases.”