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Tag: 2015 News

Stevens IMR Constitutional Challenge Featured in New NPR – Comp Bashing Story

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NPR continues its Special Series “Insult To Injury: America’s Vanishing Worker Protections” arguing that states have nationally eroded workers’ compensation benefits to the point of shifting the burden on taxpayers. The current article features two California workers’ compensation claims it asserts are evidence of how even California has changed its system into an intolerable and unacceptable debacle. One of the claimants, Frances Stevens has her case pending in the Court of Appeal and if successful, will end the IMR process created by SB 863.

NPR reports that “Stevens tripped on a rug and broke her foot as she carried boxes of magazines. The relatively simple break triggered serious nerve damage and she was eventually diagnosed with chronic or complex regional pain syndrome.” She claims to be mostly confined to a wheelchair and the NPR photograph shows her using a custom wheelchair ramp leading to her van. She was awarded total permanent disability.

A dispute arose between Stevens and SCIF about two years ago over her medical care. For several years applicant had the assistance of a home health aide and used certain medications prescribed by Dr. Jamasbi to relieve her symptoms. In late 2012, the home health aide assisting applicant was injured and was unable to continue to provide those services. This led Dr. Jamasbi to submit a Request For Authorization (RFA) to defendant for a new home health aide along with a request to refill four prescriptions which were submitted to UR and denied. The request was also denied after the IMR process which took seven months to complete. In this case, the IMR determination states that that “Medical treatment does not include home maker services like shopping, cleaning, and laundry, and personal care given by home health aides like bathing, dressing, and using the bathroom when this is the only care needed.”

The applicant appealed and the WCJ found there was no provision for a reversal of the IMR finding since the labor code provides only limited circumstances upon which IMR can be reversed. The WCAB denied reconsideration in the panel decision of Stevens vs Outspoken Enterprises Inc. One of the key aspects of the Stevens argument was the constitutionality of the IMR process, an issue the California Applicants Attorney Association has been making since passage of SB 863. In response to this challenge, the WCJ found “While the Constitution confers on the Legislature the power to establish a system of workers’ compensation, section 3.5 of article III of the Constitution withholds from administrative agencies the power to determine the constitutional validity of any statute.” The WCAB agreed that it could not rule on the constitutional issue, and denied reconsideration saying “In sum, for purposes of appeal to the WCAB it does not matter whether the reasons given for an IMR determination support the determination unless the appealing party proves one or more of five grounds for appeal listed by the Legislature in section 4610(h) by clear and convincing evidence. Applicant did not do that in this case. The WCJ’s May 27, 2014 denial of applicant’s IMR appeal is affirmed.”

The First District Court of appeal has agreed to hear the case, and this will be the first appellate court to address the constitutional challenge to the IMR process. Briefs have been filed by a great number of Amicus parties including the California Workers’ Compensation Institute, the Property Casualty Insurers Association of America, the California Chamber of Commerce, Voters Injured at Work and the California Applicants’ Attorneys Association.

By the end of January, 2015 the Court of Appeal asked the parties to address some of the constitutional questions. “Under Article XIV, section 4 of the California Constitution, the Legislature “is expressly vested with plenary power, unlimited by any provision of this Constitution, to create, and enforce a complete system of workers’ compensation, by appropriate legislation. . . .” (Cal. Const., art. XIV, § 4 [italics added].) Meanwhile, Article III, section 3 of the California Constitution, governing Separation of Powers, provides: “The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” (Cal. Const., art. III, § 3 [italics added].) And Article I, section 7 of the California Constitution provides: “A person may not be deprived of life, liberty or property without due process of law.” ((Cal. Const., art. I, § 7(a).) With these sections of the California Constitution in mind, the Court invites simultaneous supplemental briefing from the parties and amicus curiae on the following issues: 1. Is the plenary power to enact workers compensation statutes vested in the Legislature by the California Constitution limited by the Separation of Powers Clause of the California Constitution? 2. Does the plenary power to enact workers compensation statutes vested in the Legislature by the California Constitution effect our analysis in evaluating petitioner’s claims under the California Constitution’s Due Process Clause?”

Oral arguments have not yet been scheduled in this case, and it will be months before a resolution. This is however the case to watch for 2015 as the stakes are high. Should IMR be declared unconstitutional a major provision of SB 863 sought by employers will evaporate, and medical disputes will return to the level of the WCAB,

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Social Security Proposes Mandatory State Reporting of Comp Benefits

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The Social Security Administration has published its proposed 2016 budget, which also includes as an appendix, several legislative proposals. The legislative agenda includes a proposal that would require states, local governments and private insurers to report to the Social Security Administration workers’ compensation benefits that would affect the offset of social security disability benefits.

The proposal states: “Current law requires SSA to reduce an individual’s Disability Insurance (DI) benefit if he or she receives workers’ compensation (WC) or public disability benefits (PDB). SSA currently relies upon beneficiaries to report when they receive these benefits. This proposal would improve program integrity by requiring states, local governments, and private insurers that administer WC and PDB to provide this information to SSA. Furthermore, this proposal would provide for the development and implementation of a system to collect such information from states, local governments, and insurers.”

When social security disability recipients also receive workers’ compensation benefits, the Social Security Administration is entitled to offset those benefits pursuant to the Social Security Act, 42 U.S.C. §424a. Generally, the Social Security Act requires that the total amount of social security disability and workers’ compensation or public disability benefits be reduced by an amount necessary to insure that the sum of the benefits does not exceed 80 percent of the individuals pre-disability average current earnings. 42 U.S.C. §424a(a)(5).

Currently, the Social Security Administration does not have a means to independently determine whether a disability beneficiary is also receiving workers’ compensation benefits or governmental disability benefits. The Social Security Administration relies upon the beneficiary to report when they are receiving such benefits. The potential for fraud or under reporting is very apparent.

The proposal would call for the creation of a system for governments and insurers to report the nature and amount of the benefit received by the social security disability beneficiary. The proposal does not address the issue of how the insurers or governmental entities are to determine whether the claimant is, in fact, a social security disability beneficiary. This proposal is substantially similar in principle to the MMSEA §111 mandatory reporting requirement for reporting benefits and settlements to Medicare.

While the goal of reducing fraud is certainly meritorious, the proposal will shift the burden of reporting workers’ compensation and public disability benefits from the claimant/beneficiary to government entities and workers’ compensation insurers. The burden may be increased if the Social Security Administration requires insurers and public entities to acquire releases from the claimant/beneficiaries prior to disclosure of their workers’ compensation or public disability benefit. It is likely that this proposal will receive widespread support. The proposal does not suggest an effective date; however, it is quite likely that the effective date would be approximately 12-18 months after any such legislative proposal became law.

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Floyd, Skeren and Kelly 5th Annual Conference Guest Speakers Announced

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Time is running out to enroll in the Floyd, Skeren and Kelly 5th Annual Southern California Employment Law Conference to be held at the Disneyland Hotel on June 19, 2015. Last year more than 300 professional attended this conference. This year guest speakers include Steve Jones, Deputy Labor Commissioner from the California Department of Industrial Relations, Phoebe Liu, Senior Staff Counsel IV Department of Fair Employment and Housing and Shaddi Kamiabipour, Deputy District Attorney with the Insurance Fraud Unit, Orange County DA’s Office.

This full day conference that will offer topics on both Employment Laws and Workers’ Compensation. Some of the topics we will cover are:

1) Mastering California Leave Laws: A Closer Look at Disability Related Leave Laws, Interactive Process, and Accommodation
2) The Latest Information on California’s Paid Sick Leave-Ensure Compliance Before July 1, 2015
3) Preventing Work Comp Fraud in the Workplace
4) Identifying the Key Features of a Successful Interactive Process in Work Comp Cases
5) Understanding and Complying With the New California Family Rights Act Regulations in Effect as of July 1, 2015
6) A Work Comp Case Law and Legislative Update
7) Understanding, Preventing and Responding to Sexual Harassment Claims in the Workplace
8) How to Effectively Manage and Defend Work Comp Claims-Advanced Techniques From the Experts
9) Performance, Discipline and Termination-Best Practices for Avoiding Liability with These Vital HR Actions
10) Work Comp Resignations and Compromise and Release-What are the Legal Implications?
12) Is Your Company Committing Costly Wage and Hour Violations-Important Tips for Ensuring Compliance
13) An Update on the UR and IMR Process
14) Seven Habits of Frequently Sued Employers-Avoid These Costly Mistakes
15) Illegal Drug and Substance Abuse in the Workplace: Key Prevention and Response Strategies
16) Common Employer Mistakes Leading to Work Comp Claims
17) Reviewing Medical Reports and Defending Erroneous Ratings

Early Bird discounted registration is now available online. For further information please visit our event website, or call us at (818) 854-3239

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1200 Year Old Remedy “Astonishingly” Effective Against MRSA

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The increasing risk of drug resistant superbug infections have been the focus of attention over the last several months as major hospitals such as UCLA report patient infections, and other health organizations are calculating what might occur should no new antibiotic be developed to combat these infections. The predicted costs to the economy and to the insurance industry are expected to be substantial. One of the several superbugs is MRSA or Methicillin-resistant Staphylococcus aureus.

Now, as strange as it may seem, a story published in Forbes and other major news media today reports that a 1,200-year-old Anglo-Saxon remedy called Bald’s Eye Salve has proven “astonishingly” effective in battling the MRSA superbug, which kills more than 5,000 people a year in the US. The potion, composed of garlic, onion or leeks, wine, and ox bile, kills up to 90 per cent of antibiotic-resistant Staphylococcus aureus bacteria in mice, according to scientists at the University of Nottingham.

The Mediaeval treatment was rediscovered by Christina Lee, an associate professor who specializes in disease and disability in the Anglo-Saxon and Viking eras, who translated it from old English. The one thousand year old Anglo-Saxon remedy for eye infections which originates from a manuscript in the British Library has been found to kill the modern-day superbug MRSA in an unusual research collaboration at The University of Nottingham.

Dr Lee, an Anglo-Saxon expert from the School of English has enlisted the help of microbiologists from University’s Centre for Biomolecular Sciences to recreate a 10th century potion for eye infections from Bald’s Leechbook an Old English leatherbound volume in the British Library, to see if it really works as an antibacterial remedy. The Leechbook is widely thought of as one of the earliest known medical textbooks and contains Anglo-Saxon medical advice and recipes for medicines, salves and treatments.

Early results on the ‘potion’, tested in vitro at Nottingham and backed up by mouse model tests at a university in the United States, are, in the words of the US collaborator, “astonishing”. The solution has had remarkable effects on Methicillin-resistant Staphylococcus aureus (MRSA) which is one of the most antibiotic-resistant bugs costing modern health services billions.

The recipe, including detailed instructions on how long to chill the ingredients (nine days at 4C), was found in the leather-bound medical textbook from the 9th Century held in the British Library. “Medieval leech books and herbaria contain many remedies designed to treat what are clearly bacterial infections,” said Dr Lee.

Microbiologists recreated Bald’s Eye Salve as faithfully as possible, even using a wine from a historic vineyard near Glastonbury, and tested it both in vitro and on wounds in mice. They compared the results to those achieved previously with the individual ingredients. “We thought that Bald’s eye salve might show a small amount of antibiotic activity, because each of the ingredients has been shown by other researchers to have some effect on bacteria in the lab,” said microbiologist Freya Harrison. “We were absolutely blown away by just how effective the combination of ingredients was.”

Although developed long before the formal scientific method emerged, such remedies could have benefited from extensive trial-and-error research to determine what worked best. Many other books survive from the period with other treatments that might be similarly effective, Dr Lee said. A global hunt for new weapons against antibiotic-resistant infections was launched last year, spearheaded by British Prime Minister David Cameron. The results of the research on Bald’s Eye Salve were presented at the Annual Conference of the Society for General Microbiology, in Birmingham yesterday.

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Couple Face Charges for Comp Home Health Care Claim

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Detectives from the California Department of Insurance arrested Gonzalo Sandoval, 51, and his ex-wife Socorro Lopez, 65, of Paramount, on multiple felony counts of workers’ compensation fraud including making a false claim to obtain compensation and attempted perjury.

Lopez allegedly submitted fraudulent claims close to $100,000 for in-home health care services she claimed she provided to Sandoval years after he injured his back at work. The couple both testified that the claims were true, although video footage taken of Sandoval contradicted the testimony.

In 2000, Sandoval sustained a work related injury to his back. In 2012, Sandoval’s ex-wife Socorro Lopez filed a lien with the Workers’ Compensation Appeals Board against Liberty Mutual Insurance Company for $47,500 claiming she provided home health care services for Sandoval from 2010 to 2012. After filing the lien, Lopez and Sandoval both provided sworn statements regarding the home health care services performed. Video footage obtained by Liberty Mutual showed Sandoval performing activity that contradicted their testimony. A year later, in 2013, Lopez submitted an additional invoice to Liberty Mutual in the amount of $85,440 for services she provided from 2010 to 2013. Lopez received $41,000 she was not owed.

Sandoval was booked at the Inmate Reception Center in Los Angeles and Lopez was booked at Century Regional Detention Facility in Lynwood. Their bail is set at $30,000 each and both individuals are facing five years in state prison if convicted.

This case is being prosecuted by the Los Angeles County District Attorney’s Office.

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Another LA Probation Department Worker Faces Fraud Charges

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On March 20, 2015 Kimberly Evans was arrested by Los Angeles County Probation Department’s Special Projects Team on three felony counts (550 (a)(6) PC Insurance Fraud, Count (2) 487 PC Grand Theft of Personal Property, Count (3) 72 PC Presentation of Fraudulent Claim Count) and one misdemeanor count (471.5 PC Alteration of a medical record). Evans’ actions resulted in obtaining compensation that she would not otherwise be entitled to.

Evans is a sworn peace officer with the Los Angeles County Probation Department and is assigned to a Juvenile Detention Facility as a Detention Services Officer. An investigation by the Special Projects Team revealed that Evans allegedly altered medical documentation resulting in a loss of $1,707.20 during the time period she claimed as “sick time” on her time card.

This is the latest arrest as the Los Angeles County Probation Department continues to beef up its Professional Standards Bureau to crack down on insurance fraud and employee misconduct. “Within the last year the Department added a Special Projects Team comprised of four supervisory level investigators” says Jennifer Kaufman, Senior Director, “These investigators are specially trained to recognize the signs of workers compensation and/or medical fraud.”

Evans was arrested on three felony counts and one misdemeanor count of Fraud. She was booked at the Santa Clarita Sheriff’s station in Santa Clarita and bail was set at $30,000. The Arraignment date is pending.

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Employers Urge “Opt Out” Comp Nationwide

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Nearly two dozen major corporations including Walmart, Nordstrom, and Safeway are listed as founding members of the Association for Responsible Alternatives to Workers’ Compensation (ARAWC), that has already helped write legislation in Tennessee. Richard Evans, the group’s executive director, told an insurance journal in November that the corporations ultimately want to change workers’ comp laws in all 50 states.

According to its website the group focuses on ensuring that employees receive the best possible care and employers have the choice to provide what is best for their employees. We call it an “Option.” “Option is our term for allowing employers to elect an alternative to traditional workers’ compensation insurance. Each state may have different requirements for employers that choose to exercise an Option, but the fundamental principles of any alternative are to improve access to quality health care, increase employee accountability, improve medical and return-to-work outcomes, and reduce claim costs. Allowing an Option creates competition that can reduce rates and drive improvements to the workers’ compensation system.”

Employers that opt out would still be compelled to purchase workers’ comp plans. But they would be allowed to write their own rules governing when, for how long, and for which reasons an injured employee can access medical benefits and wages. Two states, Texas and Oklahoma, already allow employers to opt out of state-mandated workers’ comp. In Texas, the only state that has never required employers to provide workers’ comp.

Now Sen. Mark Green, introduced the opt-out bill for Tennessee. Green’s proposal, which supporters are calling the Tennessee Option, bears many of the hallmarks of the Texas and Oklahoma system: It allows businesses to place strict spending caps on each injured worker and to pick and choose which medical expenses to cover. “We took the best of both and put it together to make it work for Tennessee businesses,” Green reported in an article published in the Insurance Journal. Oklahoma’s Legislature took four years to create its opt-out system. ARAWC hopes to achieve the same thing in Tennessee in a single legislative session and then it’s on to the next state.

These initiatives have spawned expected heated controversy. Mary Elizabeth Maddox, a Tennessee workers’ compensation attorney who represents both employers and employees and opposes Green’s bill, recalls a case in which a workplace accident paralyzed a 23-year-old man and confined him to a wheelchair. He sued her client, the employer. “For him, $300,000 is not going to go very far.” Gary Moore, president of the Tennessee AFL-CIO Labor Council, claims “This piece of legislation is designed as a cost-saving measure for the employer, Anywhere they save a dollar, it costs the employees a dollar. It’s just a shift in costs.”

Businesses can save millions of dollars by opting out and writing plans with narrow benefits, putting pressure on their competitors to do the same. “It creates a race to the bottom,” says Michael Clingman, a workers’ advocate in Oklahoma, which passed an opt-out measure in January 2014.

California has had for years its own “Carve-Out” program which allows some employers to opt out of the Workers’ Compensation system. “Carve-out” programs allow employers and unions to create their own alternatives for workers’ compensation benefit delivery and dispute resolution under a collective bargaining agreement. Eligibility of parties to participate in a program must be approved by the administrative director of the Division of Workers’ Compensation. The requirements to participate and the elements required to be in “carve-out” programs are contained in Labor Code section 3201.5 (for the construction industry) and Labor Code section 3201.7 (for all other industries), as well as California Code of Regulations, title 8, sections 10200-10204.

It remains to be seen if Opt Out programs gain traction nationally.

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Auditors Say 45% of LAPD Officers Agreed Their Comp Claims Were “Excessive”

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Los Angeles police and firefighters work in a culture that encourages filing “excessive” workers’ compensation claims, according to a pair of city audits released Thursday and reported by the Los Angeles Times. And taxpayers are doling out up to $28 million a year for what amount to preventable injuries. The majority of injuries claimed by firefighters in recent years occurred while doing things other than responding to emergencies, including maintaining equipment, playing racquetball and preparing food at their fire stations, according to one of the audits by City Controller Ron Galperin.

L.A. police, meanwhile, are paid for on-the-job injuries more often than officers in comparable departments, the other audit found, at least in part because other departments don’t recognize sports injuries as “job-related.” Two-thirds of city firefighters and 60% of police officers filed an on-the-job injury claim in the last three years, the auditors found, and nearly half of those employees have filed more than one claim during that time.

The city audits come months after a Los Angeles Times investigation found steep increases in payments to injured police and firefighters, who receive 100% of their salaries, tax-free, for up to a year while off work recovering from seemingly job-related injuries. Only a small percentage of claims in recent years were attributed to injuries suffered fighting fires or confronting combative suspects, The most common cause was cumulative trauma claims that are not linked to a specific on-the-job injury. A disproportionate amount of injury pay was going to employees who filed consecutive claims, reporting a new injury just as a previous leave is about to end.

The city audits found, in all, that workers’ compensation costs for sworn employees have increased by 35% over the last five years to $141 million in 2014, including salary payments while the employees were off work, medical bills and other related expenses. Surveys sent to police officers by the auditors showed 45% agreed that there is an “excessive” number of workers’ compensation claims filed at the department, while a third of firefighters believed “questionable” claims had been filed by their colleagues.

The police and fire departments are shielded from the full cost of workers’ compensation claims because they don’t have to pay the medical bills, the auditors found. Those costs, nearly $85 million over the last four years, are covered by a separate city fund. The auditors recommended that the departments be made to pay medical bills out of their own budgets because “management may not be sufficiently aware of, or held accountable for, the impact of rising claims and costs.”

The departments suffer in other ways, however. Last year, fire officials told The Times they were spending more than $51,000 per day – or nearly $19 million annually – on overtime to cover shifts left vacant by firefighters out with injuries. At the Police Department, where overtime has been severely restricted, the rising number of injury leaves meant fewer officers on the street, officials said.

California legislators granted 100% pay for injured public safety employees during the Great Depression to ensure that those protecting the public wouldn’t hesitate to chase a criminal or run into a burning building for fear of losing their livelihood. But the design of the program invites abuse, city officials across the state told The Times. Because injury pay is exempt from federal and state income taxes, the employees typically take home significantly more money when they’re not working. And time spent on leave counts toward pension benefits. That creates a perverse financial incentive to file injury claims for relatively minor ailments and to stay out as long as possible, experts said.

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U.S. Supreme Court Expands Disability Rights Accommodations

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The U.S. Supreme Court today sided with a former driver for UPS Inc by giving her another chance to argue that the package delivery company discriminated against her when it refused to lighten her work duties while she was pregnant. In a 6-3 decision, the justices revived Peggy Young’s discrimination claim against the company by sending the case back to a lower court. A federal district court judge and an appeals court had earlier ruled in favor of UPS, which was backed by business groups in the case. “This is a big win for Peggy Young and other women in the workplace,” said Sam Bagenstos, Young’s lawyer.

The case focused on whether, under a federal law called the Pregnancy Discrimination Act, employers must provide accommodations for pregnant workers who may have physical limitations on tasks they can perform. Young, who worked at a Maryland facility, became pregnant in 2006. She made her request for an accommodation after a midwife advised that she not be required to lift packages weighing more than 20 pounds (9 kg).

Writing for the majority, liberal Justice Stephen Breyer said the lower court failed to consider the effects of UPS policies that covered non-pregnant workers who might have disabilities, injuries or otherwise might need accommodations. Breyer said there is a “genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young’s.”

Bagenstos said the court “made clear that employers may not refuse to accommodate pregnant workers based on considerations of cost or convenience when they accommodate other workers.”

UPS said it was confident it would ultimately win the case. “UPS is pleased that the Supreme Court rejected the argument that UPS’s pregnancy-neutral policy was inherently discriminatory,” a company statement said.

Conservative Justice Antonin Scalia, joined by Anthony Kennedy and Clarence Thomas, wrote a dissenting opinion accusing the court majority of coming up with “an interpretation that is as dubious in principle as it is senseless in practice.”

UPS said last October that starting this past January it would begin providing accommodations for pregnant women.

The impact of the ruling could be limited in part because a 2008 amendment to the Americans with Disabilities Act could now protect women in Young’s situation. The U.S. Equal Employment Opportunity Commission has said employees must offer accommodations to pregnant women just as they do for other workers with similar physical limitations. The case is Young v. UPS, U.S. Supreme Court, No. 12-1226.

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Claim Administrator’s Hostile Work Environment Claim Affirmed

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Beverly Myres was hired by the San Francisco Housing Authority (SFHA) in 2006 as a claims assistant. In 2007 she was promoted to workers’ compensation analyst. Myres was a member of the San Francisco Municipal Executives’ Association, and her employment with SFHA was governed by a union memorandum of understanding (MOU).

In 2009, Myres injured her right knee at work and filed a workers’ compensation claim in June 2009. She continued to work full-time without any restrictions until she had surgery on her right knee, Myres was then released to return to modified work with the following restrictions: “Seated work – stand/walk for personal needs only. No lift over 10 lbs. No drive for work. Must work in location free from tripping hazards.” Her employer indicated it would accommodate her restrictions.

Upon returning to work she experienced increased pain in her left knee. It was at first disputed that the left knee was injured as a result of employment. While seeking clarification of the cause of her left knee pain SFHA had advised the entire department that they were being laid off as a result of departmental restructuring. Myres then sued SFHA. Her first three causes of action are each titled “Disability Discrimination.” and she filed a fourth and fifth cause of action for hostile work environment harassment and wrongful discharge in violation of public policy premised on her allegations of retaliation for taking workers’ compensation leave.

According to SFHA, Myres and the rest of the department were laid off for a legitimate reason, “to restructure the department for improved efficiency” and due to reduced federal funding and a budget shortfall. Myres, on the other hand, asserted that SFHA retaliated against her for taking workers’ compensation leave. In support of this contention she called SFHA’s former special assistant to the executive director, who testified that “[t]here were a number of people in the department . . . that [her supervisors] were having trouble with. So they decided to deal with the problem by restructuring and laying everybody off.” As a result of the layoff, Myres testified that she suffered a loss of her annual salary of approximately $81,000 for almost three years, as well as fringe and retirement benefits.

After trial, the jury returned verdicts in favor of the employer on four of the five causes of action. With respect to hostile work environment harassment, the jury found in Myres’s favor and awarded her $35,000 in noneconomic damages. Post judgment interest was awarded in the amount of 10% and Myers was awarded attorney fees and costs. Both parties appealed. SFHA primarily contends on appeal that that the jury’s harassment verdict is not supported by substantial evidence. Myres also appeals from the judgment, arguing that various evidentiary and instructional errors affected the jury’s verdicts in favor of SFHA on her causes of action for failure to reasonably accommodate her disability. With the exception of post judgment interest in the amount of 10%, the Court of Appeal found no prejudicial errors, and after reducing the interest to 7% affirmed the judgment in the unpublished case of Myres v SFHA.

One of the issues raised by Myres was the collateral source rule. Myres filed a motion in limine to exclude evidence of collateral sources of income. She argued that any such evidence of post injury sources of income was irrelevant, as it could not be used to offset a backpay award on her retaliation and wrongful discharge causes of action. The trial court denied the motion. Over Myres’s “collateral source” objection, SFHA’s expert economist detailed the payments Myres received from retirement, social security disability, and worker’s compensation disability between September 1, 2010, and the date of trial. Ultimately, he opined that there was only a $500 difference between Myres’s expected compensation, had she remained employed by SFHA, versus the compensation she received in retirement and disability benefits after separation.

The Court of Appeal agreed that some of the collateral source income should not have been admitted. However, it was not prejudicial error. “In this case, however, we find it unnecessary to remand for a new trial. Under section 12940, subdivision (h), it is an unlawful employment practice ‘[f]or any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.’ We agree with SFHA that, as a matter of law, Myres could not recover for FEHA retaliation on the basis that she was terminated for taking workers’ compensation leave. Taking workers’ compensation leave is not protected activity under FEHA.” Thus the verdicts against her on the discrimination causes of action were affirmed.

But, the Court of Appeal agreed there was evidence in support of her claim of a hostile work environment. Her employer made comments before her injury such as “that other SFHA employees taking workers’ compensation leave were “malingerers,” abused the system, and filed “fraudulent claims.” Another comment was “How can the workers’ comp person be out on workers’ comp?”

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