Tag: 2013 News

Decedent, Juan Sanchez, fell from the roof of the residence of Defendant Alejandro Perez. Prior to the incident, Defendant Alejandro Perez believed that there were some areas of dry rot under the eaves on various portions of the roof. The sole cost of the roof repairs was $186.68, which was the cost of supplies purchased by Perez. The decedent had several years of construction experience, including roofing repairs and according to his wife knew how to perform all aspects of construction.

On April 22, 2006, the decedent began making roof repairs to Defendant’s eaves. The decedent used his own tools and ladder to make the repairs, with the exception of one saw which was provided by Defendant Perez. Defendant Perez’s only assistance in the repairs was handing materials up the ladder. As decedent was familiar with roof repairs, Defendant Perez did not direct the details of the decedent’s work. Prior to the decedent’s fall, his wife warned him to be careful because he was near the edge of the roof. Defendant Perez subsequently found the decedent lying injured on the driveway. Decedent was transported to San Joaquin County General Hospital where he died the following day from his injuries. Prior to the fall, the decedent had been drinking beer. The decedent’s survivors sued defendant Alejandro Perez alleging negligence.

The trial court granted defendant’s motion for summary judgment. It concluded that: (1) all of plaintiffs’ causes of action were for negligence; (2) defendant did not owe the decedent a duty of care; (3) California Occupational Safety and Health Act (Cal-OSHA) regulations were inapplicable; (4) the decedent was not defendant’s employee; (5) defendant did not exercise control over the work; (6) defendant had no duty to warn the decedent of an obviously dangerous condition; (7) plaintiffs cannot establish causation; (8) the decedent assumed the risk; and (9) plaintiffs cannot establish a claim for emotional distress.

The plaintiff appealed the summary judgment. The Court of Appeal affirmed the dismissal in the unpublished decision of Dolores Rivera-Sanchez v Alejandro Perez.

Plaintiffs claim that the decedent was defendant’s employee under the presumption created in Labor Code section 2750.5. But the Court of Appeal found that the presumption does not apply because the job fell within an exception under Business and Professions Code section 7048.

Labor Code section 2750.5 states: “There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to [the Contractors’ State License Law], or who is performing such services for a person who is required to obtain such a license is an employee rather than an independent contractor. . . .”

Plaintiffs tried to apply Labor Code section 2750.5 to establish that the decedent was defendant’s employee because the work the decedent was doing required a contractor’s license (and the decedent did not have a contractor’s license). However, Business and Professions Code section 7048 states that the Contractors’ State License Law “does not apply to any work or operation on one undertaking or project by one or more contracts, the aggregate contract price which for labor, materials, and all other items, is less than five hundred dollars ($500), that work or operations being considered of casual, minor, or inconsequential nature.” The only evidence of the cost of the project in this case was $186.68 that defendant spent on materials. Because the project cost less than $500, no contractor’s license was required. The Court ruled that because no contractor’s license was required, the Labor Code section 2750.5 presumption that the decedent was defendant’s employee does not apply.

Plaintiffs also attempt to invoke Labor Code section 3357, which states: “Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.” However, this workers compensation statute does not apply “if the essential contract of hire, express or implied, is not present.” (Spradlin v. Cox (1988) 201 Cal.App.3d 799, 807.) A contract for hire requires “‘(1) consent of the parties, (2) consideration for the services rendered, and (3) control by the employer over the employee.’” (Ibid.) Here, there was no consideration for services rendered, and defendant did not exercise control over the decedent. Therefore, the Court ruled that decedent was not an employee under Labor Code section 3357.

Yum! Brands is the corporate parent of several fast food franchises, such as Taco Bell, Pizza Hut, and KFC (formerly known as Kentucky Fried Chicken). Yum employed Melissa Ignat between 2005 and 2008 in the Yum Real Estate Title Department, located in Irvine. She assisted paralegals in the department with securing title to the real estate on which Yum’s franchised stores conducted business.

Ignat suffered from bipolar disorder, for which she was being treated with medications. Sometimes these were effective, sometimes not. Side effects of medication adjustments occasionally forced Ignat to miss work. Ignat alleged that after returning from one such absence in mid-2008, her supervisor, Mary Shipma informed her that she had told everyone in the department Ignat was bipolar. Ignat alleged her coworkers subsequently avoided and shunned her, and one of them asked Shipma if Ignat was likely to “go postal” at work.

Ignat was terminated in early September 2008. She filed suit against Yum! Brands and Shipma on November 12, 2008, alleging one cause of action for invasion of privacy by public disclosure of private facts. The trial court granted summary judgment in favor of the employer. Summary judgment was ordered on the ground that the right of privacy can be violated only by a writing, not by word of mouth. Because Ignat had not produced any document disclosing private facts, she could not pursue this cause of action. The trial court lamented the “irrationality” of this rule, but felt itself bound by precedent.

Ignat appealed. The Court of Appeal reversed in the published opinion of Ignat v Yum! Brands Inc.

In reviewing the case law the Court of Appeal noted that the “rule” requiring a written publication as an element of a public disclosure of private facts privacy claim in California originated in dictum in Melvin v. Reid (1931) 112 Cal.App. 285 – which lacked support in the case law on which it was based – an opinion that rejected the tort and all its principles, instead basing its holding on another principle entirely. It was followed by two cases from the 1960’s.(Gautier v. General Telephone Co., supra, 234 Cal.App.2d at p. 303; Grimes v. Carter, supra, 241 Cal.App.2d at pp. 698-699.) With these two exceptions, restricting privacy violations to written publications has been either roundly criticized or ignored by the courts dealing with disclosure of private facts in oral statements since the principle was first enunciated, in dictum, in Melvin . The Court of Appeal concluded that “This is not a firm foundation for a ruling dismissing a cause of action”.

The Court concluded “that limiting liability for public disclosure of private facts to those recorded in a writing is contrary to the tort’s purpose, which has been since its inception to allow a person to control the kind of information about himself made available to the public – in essence, to define his public persona. (See Briscoe, supra, 4 Cal.3d at p. 534; The Right to Privacy, supra, 4 Harv. L.Rev. at pp. 198-199.) While this restriction may have made sense in the 1890’s – when no one dreamed of talk radio or confessional television – it certainly makes no sense now. Private facts can be just as widely disclosed – if not more so – through oral media as through written ones. To allow a plaintiff redress for one kind of disclosure but not the other, when both can be equally damaging to privacy, is a rule better suited to an era when the town crier was the principal purveyor of news. It is long past time to discard this outmoded rule.”

S.B. 863 requires lien claimants to pay an activation fee prior to attending a lien conference, and a filing fee for filing new liens. The panel decision in the case of Jose Pedro Soto v Marathon Industries Inc. held that lien claims are properly dismissed when the activation fee is paid a few hours late.

Jose Pedro Soto claimed to have sustained industrial injuries to his back. He settled his cases by Compromise and Release approved by Order Approving Compromise and Release dated September 6, 2012. On November 29, 2012, defendant filed a Declaration of Readiness to Proceed requesting a lien conference. A lien conference was scheduled for January 10, 2013.

After passage of S.B. 863, Labor Code Section 4903.06(a)(4), effective January 1, 2013, provides: “All lien claimants that did not file the declaration or readiness to proceed and that remain a lien claimant at the time of a lien conference shall submit proof of payment of the activation fee at the lien conference. If the fee has not been paid or no proof of payment is available, the lien shall be dismissed with prejudice.”

Administrative Director Rule 10208(a), operative January 1, 2013, provides in relevant part: “No lien claimant that is required to pay an activation fee shall file a declaration or readiness or participate in any lien conference including obtaining an order allowing its lien in whole or in part, without submitting written proof of prior timely payment of the fee, or without electronic proof of timely payment of the fee that is available to the judge and parties at the conference. ‘Prior timely payment’ means payment of the activation fee (1) prior to the filing of a declaration filing a declaration of readiness, or (2) prior to an appearance at a lien conference by a lien claimant of record that did not file the declaration of readiness.”

The lien conference was scheduled for 8:30 a.m. The lien claimants in that case paid the activation fee between 10:56 and 11:06 a.m. on that day. Pursuant to Rule 10208(a), payments of the fees were not “prior timely payments.” In order to have been “prior timely payments,” the payments would have had to be made prior to 8:30 a.m. on the date of the lien conference. Therefore, the liens were properly dismissed at the lien conference on January 10, 2013.

The WCAB reinstated the Orders Dismissing Liens of Pacific Orthopedic and Rehabilitation, Vanguard Psychiatric, National Duramed, LA Mediwave, Inc., Westside Wilshire Medical Center, Orthopedic Rehabilitation of San Fernando Valley, Marina Russman, M.D., Jan Medical Equipment, Healthcare Interpreting, and Global Interpreting dated January 10, 2013.

Treatment by network physicians is becoming increasingly prevalent in California workers’ compensation, with new data showing that nearly 80 percent of first-year physician-based outpatient medical services for 2010 California work injuries was provided by physicians who are part of a medical network – up from just over half of the services in 2004 – a trend that has grown steadily since 2004 legislative reforms extended medical control for employers that offer Medical Provider Networks.

Looking at first-year medical service data from more than one million claims for California work injuries occurring between 2004 and the third quarter of 2011, the authors calculated and compared the percentage of injured worker outpatient treatment visits to network providers before and after MPNs began operating in January 2005. The results show that the use of network providers for first-year physician services increased from 51 percent for 2004 work injuries to nearly 2/3 of the services for 2005 injuries – indicating an initial surge as first-year treatment shifted to MPNs. The latest figures confirm that the trend has continued, with networks accounting for 8 out of 10 physician-based services for 2010 injuries.

Prior to MPNs, employers usually controlled their injured workers’ treatment for 30 days after the injury, but with the advent of MPNs, medical control was extended to the life of the claim for employers that offered these networks. To determine how much of the increase in first-year network physician use is associated with the expansion of employer medical control, the study measured changes in the percentage of services by network providers within and beyond 30 days of injury. For pre-MPN (accident year 2004) claims, network providers rendered about 70 percent of physician-based outpatient medical services in the first 30 days post injury, while the latest data (claims for injuries from the first three quarters of 2011) show that rate is now 86.5 percent. At the same time, however, the network provider utilization for services beyond 30 days post-injury has nearly doubled from around 39 percent for AY 2004 claims to about 76 percent for AY 2010 claims, suggesting that the expansion of medical control under MPNs has been the primary factor behind the growing use of network providers in California worker’s compensation.

The research also shows that overall, the increasing share of first-year treatment payments to network providers has tracked with the growth in utilization. Payments to network providers rose from less than 40 percent of total reimbursements for first-year visits for 2004 injuries to nearly 54 percent for 2005 injuries, then continued to trend up, increasing to nearly 72 percent of the payments for first-year services for 2010 injuries.

Again, this growth was primarily driven by payments to network providers for services after the first 30 days, which more than doubled from less than 32 percent of the payments on AY 2004 claims, to more than 67 percent of the payments for AY 2010 claims.

The Institute has published the results of the study in a Research Update, which includes data tables showing AY 2004 – 3Q2011 network provider utilization rates and the proportion of payments for physician-based treatment within and beyond 30 days of injury. Results are also broken out separately for three major treatment categories: Evaluation and Management; Surgery Services (excluding injections); and Physical Therapy.

Thomas Alberda began work as a full-time Fresno County deputy sheriff in 1993. Before his employment, Alberda had two surgeries on his right knee: The first, in 1981, was to repair damage he sustained when he dislocated his right knee while playing high school basketball; the second, in 1984, was to remove a chip in the right knee which occurred while playing basketball. The knee did not require ongoing treatment; Alberda passed his Fresno County pre-employment physical as well as the physical requirements of the law enforcement academy.

In May 1995, Alberda hyper-extended his right leg while on duty, causing an internal derangement that required surgery, which Malcolm E. Ghazal, M.D. performed that month. Before the surgery, Dr. Ghazal advised Alberda that while the surgery would relieve his immediate symptoms, he had underlying arthritis in his knee which would continue to worsen with time and eventually could require a significant surgical procedure. Dr. Ghazal, however, hoped such a surgery could be deferred for “many years to come.” In August 1995, Alberda returned to full duty without restriction.

Sometime in 2003, Alberda, who is six feet, seven inches tall, was assigned a smaller patrol vehicle in which he did not comfortably fit; while he could work, his knees were crammed into the dashboard. After about a year, he began having severe problems with both knees and was in continual pain. He stopped working in June 2005 due to the pain in his knees and sought treatment from Marc Johnson, M.D. Orthopedic surgeon Ronald R. Castonguay, M.D. performed surgeries to repair meniscus tears on both of Alberda’s knees: the first, on September 16, 2005, was on his right knee, and the second, on October 28, 2005, was on his left knee. Alberda did not recall any specific injury to his left knee during his career, although he recalled an instance in 2001 in which he went to the hospital after he had “gone down hard” on the left knee while arresting a suspect. He thought a report of the incident had been prepared, but one was never located.

In March 2007, Alberda filed an application for a service-connected disability retirement. On April 4, 2008, the Board denied the application and instead approved the grant of a non-service connected disability retirement if Alberda wished to apply for one. Alberda submitted a request for a hearing on the Board’s decision, which was held on March 8, 2010.

The hearing officer found that Alberda’s permanent incapacity was not the result of injury or disease arising out of and in the course of his employment, and that his employment did not contribute substantially to his disability concluding that “[Alberda] had a lot of degenerative problems and it is reluctantly concluded that it is those problems and not the 1995 trauma and the 2003 assignment that led to his 2005 incapacity. The preponderance of the evidence does not establish that [Alberda]’s employment contributed substantially to his permanent incapacity. The causal connection between the job and the disability must be real and measurable and substantial and such is not found to be the case herein.”

The Superior Court affirmed the hearing officer stating “the standard of review was independent judgment, in which the trial court must afford a strong presumption of correctness concerning the administrative findings and the party challenging the administrative decision bears the burden of convincing the court the findings are contrary to the weight of the evidence.”

The Court of Appeal in the published opinion of Thomas Alberta v Board of Retirement of Fresno County Employees’ Retirement Association reversed and remanded the case.

Instead of undertaking an independent determination of whether Alberda’s disability was service-connected, the trial court denied the petition after concluding substantial evidence supported the hearing officer’s finding on that issue.

“The trial court’s written order demonstrated it did not review the Board’s decision in the required manner. While the trial court began the statement of decision by stating the correct standard of review, i.e. independent judgment, it went on to say that “substantial evidence supports the hearing officer’s decision” that Alberda was not entitled to service-connected disability retirement benefits, that “substantial evidence supports” that the 1995 injury and the 2003 assignment to a smaller squad car did not contribute substantially to Alberda’s incapacity, and “[s]ubstantial evidence supports the hearing officer’s finding” that Alberda’s degenerative problems led to his disability.