by donald barthel& amir f. adil bradford & barthel, llp · pdf file1/29/2016 1 by...

1/29/2016

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By Donald Barthel & Amir F. Adil

Bradford & Barthel, LLP

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LC 5705 Burden of proof;

affirmative defenses."The burden of proof resets upon the party...holding the affirmative of the issue. The following are affirmative defenses, and the burden of proof rests upon the employer to establish them”:

a) That an injured person claiming to be an employee was an independent contractor or otherwise excluded from the protection of this division where there is proof that the injured person was at the time of his or her injury actually performing service for the alleged employer.

b) Intoxication of an employee causing his or her injury.c) Willful misconduct of an employee causing her or her injury.d) Aggravation of disability by unreasonable conduct of the

employee.e) Prejudice to the employer by failure to give notice, as required by

Sections 5400 and 5401.

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File an Answer...WHY?

LC 5505: "Evidence upon matters not pleaded by answer shall be allowed only upon the terms and conditions imposed by the appeals board or [WCJ] holding the hearing."

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File an Answer...

Reg 10484: “Evidence upon matters and affirmative defenses not pleaded by Answer will be allowed only upon such terms and conditions as the appeals board or [WCJ] may impose in the exercise of sound discretion."

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In other words…FAIL TO PLEAD AT YOUR

OWN RISK

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The best defense ever....?

it-ain't-happened

dang Applicant made it up

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Early California Foods v WCAB

(Ellis) 56 CCC 137 (1991)� Facts: def failed to raise earning issue in

Answer/Amended Answer

� Held: precluded from raising earnings/TD overpayment at trial

aka

WAIVE GOOD BYE!

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Filing & Service of AnswerANSWER

WHEN?

DOIs 1/90 to 12/31/93 = filed & served w/in 6 days of service of App

DOIs pre-1/90 & o/a 1/1/94 = 10 days after service of DOR

Rule 10480; LC 5500

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Filing & Service of AnswerPROCEDURAL REQUIREMENTS

"The Answer used...shall conform to a form prescribed and approved by the Appeals Board...”

"A general denial is not an answer within this rule...”

"Evidence upon matters and affirmative defenses not pleaded by Answer will be allowed only upon such terms and conditions as the [WCAB] or [WCJ] may impose in the exercise of sound discretion.”

Reg. 10484

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ANSWER ADVANTAGES:1. avoids waiver

2. assures timely notice of defense issues (helps avoid continuances)

3. focuses discovery efforts

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It's not like we're overworked with

pleadings...

� LC 5500: "No pleadings other than the application and answer shall be required..."

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Filed an Answer that

Contains a Mistake?!?!?!?

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All is not lost:Bryant v. Staffmark Investment LLC, 2010 Cal. Wrk. Comp.

P.D. LEXIS 172, (4/26/10)

FACTS:

� Answer stip'd to AWW=$750

� later discovery EE was min wage earner

� At PTC, DA amended the earnings admission on the Pretrial Conference Statement...

"earnings were in dispute"

� WCJ held, Answer = "admission" (IW qualified for max TD/PD rates)

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WCAB reverses!“[D]efendant's answer...was a pleading, which can be amended in later proceedings…before submission for determination by the WCJ at trial."

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"Labor Code section 5500 makes it clear that an answer is a form of pleading, which…may provide for 'the furnishing of any additional information as the appeals board may properly determine necessary to expedite its hearing and determination of the claim.' …The parties' execution of the stipulations and issues statement was sufficient to withdraw defendant's prior admi[ssion].”

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AFFIRMATIVE DEFENSES (codified)1. Independent Contractor: LC 3353 & 2750.5

2. Intoxication: LC 3600(a)(4)

3. Prejudicial Lack of Notice: LC 5400

4. SOL: LC 5402-5412

5. The injury was caused by the IW’s commission of a felonious act for which he/she has been convicted:

LC 3600(a)(8)

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AFFIRMATIVE DEFENSES (non-codified)6. Lack of WCAB jurisdiction

7. Injury caused by IW's S&W

8. Willfully Self-Inflicted Injury

9. Willful Suicide

10. Initial Aggressor

11. “Going & Coming” Rule

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AFFIRMATIVE DEFENSES (non-codified)12. Non-Salaried Partner

13. Employment Category Excluded from W.C. law

14. Subrogation/Third Party Recovery

15. Unreasonable Refusal to Submit to Treatment

16. Unreasonable Refusal to Submit to Examination

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AFFIRMATIVE DEFENSES (non-codified)17. Horseplay

18. “Rashly Undertaken Activity”

19. Apportionment

20. By carrier: lack of ins coverage; special general; site specific

21. The claim is barred by a prior compromise and release executed by the IW. (Johnson v WCAB (1970) 35 Cal. Comp Cases 362.)

22. Post Termination

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Nearly 2 dozen defenses!!!

A lot to "wave good-bye” to:

EXCEPTION: jurisdiction*

*may be raised anytime before the decision becomes final

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AFFIRMATIVE DEFENSES (codified)1. Independent Contractor

LC 3353: "'Independent contractor' means any person

who renders service for a specified recompense

for a specified result, under the control of his

principal as to the result of his work only and

not as to the means by which such result is

accomplished.”

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Independent Contractorany person who:

a. renders service for a specified recompense for a specified result

b. under the control of his principal as to result of work only

c. not under control of principal as to the means of accomplishing the result

Simple, huh!?!?!?

NOT SO FAST

Decided on case-by-case basis

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Independent ContractorLC 2750.5:

"Proof of independent contractor status includessatisfactory proof” of these factors:

a) "That the individual has the right to control and discretion as to the manner of the performance of the contract for services in that the result of the work and not the means by which it is accomplished is the primary factor bargained for."

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Independent Contractorb) "That the individual is customarily engaged in an

independently established business."

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Independent Contractorc) "The individual's independent contractor status is

bona fide and not a subterfuge to avoid employee status."

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In addition to (a)-(c):"any person performing any function or activity for which a license is required [per the Business & Professions Code] shall hold a valid contractors' license as a condition of having independent contractor status."

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Independent Contractor

Evidence that IC Status isn't a "subterfuge” is

evidenced by cumulative factors like:

� "substantial investment...in the business”

� "holding out to be in business for oneself” (business cards? ads? signs?)

� "bargaining for a contract to complete a specific project for compensation for project rather than by time”

� "control over the time and place the work is performed”

� "supplying the tools”

� "hiring employees"

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Cumulative factors continued…Evidenced by cumulative factors, such as:� “performing work that is not ordinarily in the course of the

principal's work”� "performing work that requires a particular skill”� "holding a license pursuant to the Business and Professions

Code"� "the intent by the parties” � "the relationship is not severable or terminable at will by

the principle but gives rise to an action for breach of contract"

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2. IntoxicationEmployer liability...

LC 3600(a)(4) "Where the injury is not caused by the intoxication, by alcohol or the unlawful use of a controlled substance of the injured employee... 'controlled substance' shall have the same meaning as prescribed in Section 11007 of the Health and Safety Code."

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2. Intoxication"Controlled Substance”—long list—includes:

amphetamine

coca leaves

methadone

marijuana

Phenobarbital

morphine

opium

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2. Intoxication"unlawful use”—not necessarily improper/negligent use

2-pronged test: to determine whether controlled substance was

(a) obtained illegally, and/or(b) was obtained legally but used in an unlawful manner

EX-1: doesn't have prescription (e.g., is properly prescribed, but for a different individual.)

EX-2: IW doesn't have a valid prescription (e.g., a prior prescriptionhas expired and/or has been materially altered.)

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2. IntoxicationDefense requires proof IW:

a) used a covered intoxicant

note: statutory defense does not cover 1991 or later injuries caused by IW’s lawful use of a controlled substance or use of any uncontrolled substances other than alcohol

b) was intoxicated

c) proximate causation*

*proximate cause = bar (got it?!?)

EX: Drunk in hotel room and roof collapses.

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3. Prejudicial Lack of NoticeLC 5705 Burden of proof; affirmative defenses.

"The burden of proof rests upon the party...holding the affirmative of the issue. The following are affirmative defenses, and the burden of proof rests upon the employer to establish them”:

e) Prejudice to the employer by failure to give notice, as required by Sections 5400 and 5401.

LC 5400 "...no claim to recover compensation...shall bemaintained unless within thirty days after theoccurrence of the injury...there is served uponthe employer notice in writing, signed by theperson injured or someone in his behalf..."

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4. SOL (LC 5400-5412)

STATUTES of LIMITATION

Purpose: Encourage prompt pursuance of legal remedies so evidence will be current/available.

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STATUTE OF LIMITATIONS

IF no benes/comp/treatment furnished, APPLICATION must be filed within

ONE YEAR

FROM

DATE OF INJURY

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STATUTE OF LIMITATIONS

IF benes/comp/treatment furnished, APPLICATION must be filed within

ONE YEAR

FROM

LAST PAYMENT/BENE

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What kind of

benes/comp/treatment count?

ANY!

EX: Pain pills, wages during disability, etc.

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NOTE:Years may go by and, if some form of treatment is given, the one year within which to file is counted from that date.

PRACTICE POINTER: Employers may inadvertently breathe new life into a claim that would otherwise be barred by the SOL.

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Example: file closed due to SOL* Adjuster fails to notify treating doctor of file closure

* Unsuspecting treater provides treatment

Holding: By giving physician authorization to treat,

carrier makes doctor its agent; if agency

not terminated by specific notice, doctor's

actions may continue to extend SOL

PRACTICE POINTER: Give written notice to EE and Drwhen benes have terminated w/a specific statement that no further treatment is to be given w/out prior authorization.

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90 DAY CLOCKSpeaking of SOLs,

When does the

90 Day Clock

REALLY

Start Ticking!?!?!?

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90 DAY CLOCKHoneywell v. WCAB (Wagner)

(2005, CA Sup Ct)

Facts:

7/98: IW complains of work stress

10/98: psych hospitalization

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HoneywellFACTS:

wife notifies ER...

...asserts "work stress" is cause...

...asks for "disability" form...

Er provides unemployment forms, not DWC-1

1/15/99 (6 MONTHS after first complaints of work stress): DWC-1 received

3/31/99 (75 days later): Claim denied

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HoneywellISSUE: Is a denial that issues 75 days after DWC-1 is received—but 8 MONTHS after notice of work injury—LATE?

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HoneywellWCJ Held:

1. ER breached duty to provide claim form in a timely manner;

2. Claim wasn't denied w/in 90 days of the breach, and, thus;

3. Injury presumed compensable under LC 5402(b) (“If liability is not rejected within 90 days after the date the claim form is filed…,the injury shall be presumed compensable…”)

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HoneywellWCAB En Banc Held: LC 5402's 90-day period begins when

a. EE files the claim form, or

b. ER is "reasonably certain" an injury was suffered or is being claimed and breaches the duty to provide a DWC-1,

ON REMAND, WCJ found ER "reasonably certain" as

of 10/98 and, thus, presumed compensable

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HoneywellSupreme Court says...

"reasonably certain" ain't in the statute!!!!

HELD: 90-day period for denial begins from the date EEfiles a claim form, "not from the date the [ER] receives notice or knowledge of the injury or claimed injury."

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Honeywell

1) EE's burden: notify ER of injury [unless notice is unnecessary b/c ER already knows of the injury/claimed injury from other source(s)]

2) ER's burden: inform EE of his/her possible rights and provide DWC-1

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Honeywell

3) EE's burden: to decide when/whether to file DWC-1 w/ER

ONLY WHEN DWC-1 IS FILED DOES ER HAVE NEW BURDEN:

4) ER(Insurer) must conduct 90 day investigation

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90 Days runs from the date EE files the claim form,

NOT

"from the date the [ER] receives notice or knowledge of the injury or claimed injury."

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Honeywell

ER will be ESTOPPED from denying the period began before the filing date IF:

a. ER, knowing EE had suffered or was asserting an industrial injury, refused to provide a DWC-1, or misrepresented the availability of or need to file a DWC-1; and

b. EE was actually misled and failed to file a claim for that reason; and

c. because of this reliance, EE suffered some loss of benefits or setback as to the claim.

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NEW & FURTHER DISABILITYIW has 5 years from the DOI to institute proceedings for any "new and further disability" caused by the original injury.

"New & Further Disability" refers to cases where an Application has been filed or in which ER has recognized the injury and furnished some benefit.

Think: There is already WCAB jurisdiction.

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EXAMPLE AFacts: EE given booklet including WC program, benes and procedures at DOH

* WC posting on wall above coffee pot in EE lounge

* IW twists ankle at work

* B/c thinks it is "minor", doesn't report to anyone

* 2 years later, files Application

* Defense asserts SOL

Holding?

Barred: (filed >1 year after DOI)

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EXAMPLE BFACTS: IW injured in 11/99 MVA

* Receives treatment for 7 yrs

* 6 months after treatment stops,

files Application


Holding?

Not barred (filed w/in 1 year after last treatment)

(LC 5405)

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EXAMPLE CFACTS: back strain = 11/16/79

* 12 wks TD

* 5 months treatment thru to 4/80

* Application for PD filed 10/31/84


Holding?

Claim not barred b/c PD is a New & Further Disability

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EXAMPLE DFACTS: 6/16/76 - severe hand injury in milling machine

* Treatment provided through 12/10/76* 12/11/76 = RTW* 12/25/76 = files Application for PD* Hearing for PD “OTOC'd" b/c receiving TD/treatment* Fires AA* Leaves CA 1977- Spring, 1982* 4/92 = Files another Application for PD* Defense asserts SOL...2nd Application was:

a. >1 year after last bene, andb. >5 years after DOI

HOLDING?

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EXAMPLE D (con't)

HOLDING: claim not barred

REASONING: Original Application was timely, raised an issue that was never decided; 2nd App. unnecessary

POINT? WCAB has continuing jurisdiction to decide any issue which is raised in a timely fashion but not resolved.

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DEATH CASES & SOLDependent(s) must file any App. for death benefits:

(a) w/in 1 year from the date of EE's death AND(b) w/in 240 wks from the DOI

LC 5406: No proceedings for death benefits "may becommenced more than one year after date ofdeath, nor more than 240 weeks from the dateof injury.”

*Note: Under 5402, upon receiving notice of knowledge of a claim of injury (or, as under Reynolds, facts which would put an ER on notice of a possible claim of injury) resulting in death, ERmust give EE's dependents notice that they may be entitled to death benefits.

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DEATH, ASBESTOS & SOL

Death benes proceedings must be commenced w/in one year from the date of death (regardless of the date of injury)! (LC 5406.5)

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S&W Misconduct SOL

AGAINST ER: must be filed w/in "twelve months from the date of injury." (LC 5407)

note: 12 months are not extended by:

a. payment of benes/comp, and/or

b. any agreement to pay, and/or

c. filing an App. for "normal" benes

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132a (Discrim. Because of Claim)

"Proceedings...are to be instituted by filing an

appropriate petition...not...more than one year

from the discriminatory act or date of termination

of the employee."

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5. Felonious Act“Is your criminal activity causing you heart burn?

Call CAAA! … Operators are standing by.”

� Is the IW “in fact” guilty of the criminal activity.. then may be barred.

� Instead of bar to benefits—Possible reduction of IW’sbenefits (EE’s S&W).

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Felonious Act� Non-compensible IF

a. injury occurs during commission of felony,

b. for which IW is convicted

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Affirmative Defense (non-codified)6. Lack of WCAB jurisdiction

Competence de la competence

Exclusive Remedy – Work related claims adjudicated solely by the WCAB. LC §§ 5300-5301.

What work related injury is not exclusively w/in WCAB’sjurisdiction?

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Lack of WCAB jurisdiction (con’t)SOME EXAMPLES

� Federal railroad employees and the Federal Employers’ Liability Act

� Injury on federally recognized tribal land (sovereign immunity for ER that is a federally recognized Indian tribe)

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Lack of WCAB jurisdiction (con’t)� Admiralty maintenance or Jones Act and a seaman’s

separate exclusive remedies under federal and state courts.� EE is a seaman with relationship to vessel

� Maritime activities

� navigable boat or is it on dry land getting services/overhauled?

� Longshore and Harbor Workers’ Compensation Act: Local contacts� More local contacts on land = WCAB

� Less local contacts = increased chances for Longshore Act

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Lack of WCAB jurisdiction (con’t)SOME EXAMPLES

� Outer Continental Shelf Lands Act (OCSLA)

� Death on the High Seas Act (DOHSA)

� Independent Cause of Action, e.g., Pregnant EE’s fetus directly injured by ER’s actions like negligence can sue in civil court

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Lack of WCAB jurisdiction (con’t)� Vehicle Code § 17150: negligent operation or

loaning of a motor vehicle means the OWNER of the car has civil liability outside of WCAB jxn. EEswere able to sue owner of car (owner was not their ER) in Galvis v. Petito (1993) 58 Cal.Comp.Cases 75.

� ADR— LC 3201.5 — As part of a CBA, some claims are carved out of the WCAB*

*Appeals still go to Recon Unit

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7. Injury caused by IW's S&WLC 4551 Willful misconduct of injured employee.

"Where the injured is caused by the serious and willful misconduct of the injured employee, the compensation otherwise recoverable therefrom shall be reduced by one-half, except:

a) Where the injury results in death.

b) Where the injury results in [PD] of 70 percent or over.

c) Where the injury is caused by the failure of the employer to comply with any provision of law, or any safety order of the Division of Occupational. Safety and Health, with reference to the safety of places of employment.

d) Where the injured employee is under 16 years of age…”

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7. Injury caused by IW's S&WFoolish action in jumping off a roof while supervisor went to get a taller ladder was deliberate:

Grant Joint Union (BUTLER) 72 CCC 1518, quoting WCAB,

"Applicant did not leap with reckless abandon from the roof,without considering the consequences. Applicant's hesitation,

conversations with witnesses, and preparations show, notwanton and reckless disregard of the consequences, but

a process of deliberation and, unfortunately, miscalculation.Poor judgment, yes; serious and willful misconduct, no."

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8. Wilfully Self-Inflicted

Injury [LC 3600(5)]Does not cover carelessness/negligence!

ER must prove:(a) EE's actions were intentional, AND(b) EE's behavior was not merely negligent, AND(c) The injury was caused by the intentional act, AND(d) (i) an injury was the intentional result of EE's intentional act, OR

(ii) the reasonably foreseeable or predictable result of the action taken by the EE is an injury, albeit a more minor injury than the one that was sustained.

EX: Hit wall with fist in anger.Breaks fingerDefensible?

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9. Wilful SuicideONLY covers where EE "willfully & deliberately" caused

own death!

-not all suicides are covered! [LC 3600(a)(6)]

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9. Wilful Suicide

ER must prove:

1. death was self-inflicted

2. IW wanted to die and took deliberate steps to do so

3. no connection between a previous industrial injury and the later suicide

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9. Wilful SuicideIf dependents argue "irresistible impulse", ER must disprove…that is, prove:

a. EE was capable of taking willful/deliberate action,

b. did so,

c. reasons were personal and independent of a prior industrial injury

Look for suicide note

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10. Initial Aggressor

LC 3600: EE not entitled to compensation for injuries caused by "an altercation in which the injured employee is the initial aggressor".

The unplanned injury...EE intentionally assaults another person who retaliates and injures his aggressor.

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10. Initial AggressorTwo questions:

a. Who initiated the altercation or was the initial physical aggressor?

b. What was the subject matter of the dispute?

-to be compensable, injuries must be work-related

-if totally personal, injuries aren't compensable

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10. Initial AggressorTo qualify as "initial aggressor", must cause intended victim to:

a. have a subjective belief of endangerment,

b. that is objectively reasonable

Need not actually strike intended victim!

EX. assuming threatening tone and rapidly approaches another person while wielding a weapon

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10. Initial AggressorUsually swearing contest: "He did it!”

"No. He did it”

Lots of finger pointing between combatants

DEFENSE STRATEGY: Admin Rule CR 10590 allows for consolidation of proceedings in "two or more related cases" for "the purpose of receiving evidence"

Thus, only one judge to ascertain truth!

Avoids unjust results: two winners or two losers

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11. “Going & Coming” Rule� General Rule: injuries that occur going to or coming

from work during a normal commute are non-compensable.

� Logic:

a) EE isn't rendering services to ER during commute

b) theory: the employment relationship is suspended when EE leaves work until EE returns

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Leaves EE lots of options:

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More exceptions than...

...Swiss cheese has holes!

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Smith v. W.C.A.B. (1968)69 C.2d 814.73 Cal. Rptr. 253, 33 C.C.C. 771.

� FACTS: IW injured driving to work

� when hired, told some work req'd his car

� injured in MVA

� if made it to work, would have stayed on ER premises all day

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Smith� HELD: AOE/COE

� REASONING: having a personal vehicle available at work was

“express condition of employment”

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Hinojosa v. W.C.A.B. (1972)8 C.3d 150, 105 Cal. Rptr. 456, 37 C.C.C. 734

� FACTS: IW injured on way to work

� several job sites

� EE worked at 2 different job sites on same day 1 x wk

� job sites > one-half mile apart

� ER doesn’t provide transportation

� ISSUE: Going & Coming apply?

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Hinojosa

HOLDING:

REASONING: having personal vehicle at work is an “implied condition of employment”.

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12. Non-Salaried Partner of Def

Why DRB should not get benes!!!

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12. Non-Salaried PartnerLC §§ 3351 & 3360

� Partners are not employees of each other.

� Ask: Did EE receive wages or salary regardless of performance/income of Co?

� If Yes: S/he is an EE (income not dependent on Co.) and Covered EE!

� If No: S/he is a partner (income dependent on Co so NO benefits!

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13. Employment Category Excluded

from W.C. law (LC 3352)(i) Family Affairs

LC 3351/3352:(a) persons employed by his/her(b) *parent, *spouse, *child(c) who is "the owner or occupant of a residential dwelling",(d) "whose duties are incidental to the ownership,

maintenance, or use of the dwelling, including the care and supervision of children," or

(e) "whose duties are personal and not in the course of trade, business, profession, or occupation of the owner or occupant."

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from W.C. law (LC 3352)(ii) Aid & Sustenance

LC 3352(b) Exclusions from term "employee" include

"Any person performing servicesin return aid or sustenance only,

received from any religious, charitable,or relief organization."

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from W.C. law (LC 3352)(iii) Voluntary Ski Patrol

-no pay other than meals/lift ticket?

NOT an "employee"

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from W.C. law (LC 3352)(iv) Ski Lift Operators

"relieved of and not performing any prescribed duties"?"participating in recreational activities on his or her own initiative"?

NOT an "employee"

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from W.C. law (LC 3352)

“ETC., ETC., ETC.”

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14. Credit for comp paid/3rd Party

Recovery

EE & ER have an independent cause of action against a negligent 3rd party (LC 3852)

Any amount EE recovers from the 3rd party is subject to

ER's right of reimbursement for sums already paid or credit

against future comp to be paid to EE (or EE's dependents)

(LC 3852, C.J.L. Construction, Inc. v Universal Plumbing, (1993) 58 CCC 543)

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14. Credit for comp paid/3rd Party

Recovery

Feel free to call:

Amir Adil Kermit Sprang

Tahmeena Ahmed Scott Star

Peter Fitzpatrick

Louis Larres Kerry Tepper

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15. Unreasonable Refusal to

Submit to TreatmentLC 4056 Disability caused or aggravated by refusal to submit to medical treatment

"No compensation is payable in case of thedeath or disability of an employee when hisdeath is caused, or when and so far as hisdisability is caused, continued, or aggravatedby an unreasonable refusal to submit to medicaltreatment, or to any surgical treatment, if therisk of the treatment is, in the opinion of theappeals board, based upon expert medical orsurgical advice, inconsiderable in view of theseriousness of the injury."

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Submit to TreatmentLC 4056 Disability caused or aggravated by refusal to submit to medical treatment

Note: injury need not be "serious” rather, the unreasonableness of the employee's refusal must be proportionate to the "seriousness of the injury"

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Submit to ExaminationLC 4053 Failure or refusal to submit to examination

at employer's request.

"So long as the employee, after written request of the employer, fails or refuses to submit to such examination or in any way obstructs it, his right to begin or maintain any proceeding for the collection of compensation shall

be suspended."

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17. Horseplayaka

"Skylarking”

aka "Screwing Around"!

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17. Horseplay

Definition:

a) EE's personal activities are acts of convenience

b) that have an inherent potential for injury, and

c) injury occurs (though was not intended)

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17. Horseplay

Examples:

a. Recreational activities that utilize ER's materials/property

(e.g., shooting rubber bands, spitting paper wads, flying paper airplanes, handstands on ladders, sniffing glue)

b. Activities performed on a dare

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17. HorseplayNO DOUBLE DOG DARE EXCEPTION

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17. HorseplayExamples:

c. Inherently dangerous activities (e.g., diving off a roof; smoking in restricted areas)*

*Note: can also give rise to S&W (but only gives 50% reduction)

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17. HorseplayExamples:

d. activities intended to amuse oneselfex. spraying chemicals on arm to see what will happen

ex. arm wrestling

ex. play boxing

ex. sick jokes (greasing toilet sets, setting fires in trash cans, setting off fire alarms)

e. activities that do not ordinarily occur in the workplaceex. demonstrations of tattooing techniques

ex. practice cooking of flambe foods for a evening cooking class

ex. eating contests

ex. drinking contests

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18. “Rashly” Undertaken Activity� Aggravation of earlier industrial injury by "rashly”

undertaken activity causing additional disability.

"rashly" = very negligent????

Beatty 43 CCC 444

case law = very limited

case law = very conflicting

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18. “Rashly” Undertaken ActivityLedyard 57 CCC 60

Facts: aoe/coe back

-visiting AME (5th floor)

-arrives early; told "go look around"

-goes on roof, thru door w/sign:

"DOOR LOCKS FROM OUTSIDE”

-lets door close

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105

Guess what happens!!

"After looking around on the roof for a means of escapeand being unable to attract the attention of pedestrians below, [IW] mounted the four-and-one-half foot parapet and dropped 16 feet to a balcony below, suffering severe

injuries to his legs."

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Facts: IW argues "compensable

consequence"

HOLDING: Oh NO YOU DON’T!!!

REASONING:

IW's acts "constituted a complete departure from his special errand of participating in a medical examination."

IW's "jump from the roof was a rash undertaking that could not have been reasonably anticipated..."

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ON THE OTHER HAND…

"...it is questionable whether conduct that is merely "rash” will bar employee's recovery for injuries

consequential to an established industrial injury..."

Sanchez 59 CCC 81

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19. Apportionment

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Keeping this simple:

PD is Applicant’s burden Apportionment is Defense’s burdenApportionment is defendant’s burden

Escobedo vs. Marshalls (2005) 70 Cal. Comp. Cases 604

In the final analysis, to save PD indemnity Defense must prove PD cause by LC 4663 “other factors”

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109

20. By Carrier: A. Lack of Ins Coverage of ER (DUH!)

B. Absence of Liability under General-Special Rule

C. Lack of coverage under Exclusionary Endorsement or Policy Provisions (DUH!)

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A. Lack of Coverage � Subject to Mandatory Arbitration, per LC § 5275(a)

� Caveat: Denying both Coverage AND Employment may mean both venues in both WCAB and Arbitration. Cumis fees may be awarded by the WCABfor ER’s atty fees if carrier found liable.

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B. General & Special Employer

'cause you just can't have enuf bosses

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"general": lends EE to another ER

-allows borrowing ER to directly supervise EE

"special": ER who borrows from "general"

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general ER: “generally” liable for w.c. injuries (get it?)

special ER: generally not liable for w.c. injuries

(unless EE was on special's payroll

on DOI)

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"The primary consideration [in determining whether a special employment exists]...is whether the special has [the] right to control and direct the activities of the alleged employee or the manner and method in which the work is performed."

Kowalski v. Shell Oil, 23 Cal.3d 168, at p. 175

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Less likely a special employment

relationship

IF

Worker...a. is skilled;b. has substantial control over operational details;c. isn't engaged in borrower's usual business;d. works only for a brief period;e. uses own tools or those of lending ER;f. isn't paid by borrowing ER;g. can't be discharged by borrowing ER.

Marsh v. Tilley Steel, 26 Cal.3d 486, 492

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EXAMPLETEMPORARY EMPLOYMENT SERVICE EMPLOYERS

Volt.com

CMStaffing

Labor Ready

Kelly Services

Accountemps

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general ER: generally liable for w.c. injuries

special ER: generally not liable for w.c. injuries

BUT what happens if general's carrier...

*becomes insolvent, or

*cancelled policy?

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CIGA*...

...to the rescue!?!?

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119119

120

Special Employer is jointly &

severally liable for EE's injuries...

UNLESS...unless special EEs were expressly excluded from

coverage under the special employer's insurance policy!

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NOTE: Even if the special and general have a contract agreeing that the general will obtain w.c. ins,

any such agreements do not eliminate their joint & several liability.

Northrup Grumman Corp. v WCAB; CIGA, 75 CCC 537 (2010); Miceli v. Jacuzzi, Inc. (2006), 71 CCC 599

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C. Site Specific� Burden on Insurer to establish Exclusion

� WCIRB info correct?? Who knows

� Pull building permit from supervising gov’t entity

� Show actual policy from underwriting or other carrier’s policy

� Get Declarations/Exclusions pages

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C. Site Specific (con’t)� If possible, show “other coverage”

designated for the site

War Story: I have even used a broker’s email to client’s underwriting dept. to get joinder against another carrier!

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21. Prior C&RJohnson v WCAB

S.Ct, 1970

Fact: IW into C&R on mandatory form-form releases all claims of IW and his dependents-C&R approved by WCJ-IW dies -WCJ dismissed widow's claim for death benes

Holding: WCAB erred in dismissing death benefit claim without first awaitingdefendant's Answer

Reasoning: the assertion of a release is an affirmative defense "If...insurer chooses not to raise the defense of release,that release might be deemed waived and petitionerthus collects death benefits."

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22. Post TermGood news!

Post 7/16/93 DOIs...

LC 3600(a)(10) = "post-term" defense

Objective: protect against retaliatory/fraudulent claims from fired ees

Don't forget: LC 3600(a)(10) doesn't apply to psych

[see LC 3208.3(e)] (more about that later)

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RULE: = not compensable if "filed after notice of termination or layoff, including voluntary layoff, and...the claim is for an injury occurring prior to the time of notice of termination or layoff.”

NEEDED: prove that…

a. claim was filed after notice term layoff; and

b. claim is for injury occurring before notice

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Burden shifts to EE...Prove one (any one):

1. ER was aware of claimed injury before EE was notified of term.

2. Evidence of claimed injury is in med records that pre-exist notice of term.

3. EE sustained a specific injury a. after notice of term

b. but before effective date of term

4. EE sustained CT w/doi after date of notice of term

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Want a laugh...

LC 3600(a)(10): "issuance of frequent notices of termination or layoff to an employee shall be considered a bad-faith personnel action" thereby undercutting potential post-term defense

frequent notices nullifies LC 3600 post-termination defense

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TERMINATION OR LAYOFF

LC 3600(a)(10) applies only to claims filed after notice of "termination or layoff, including voluntary layoff."

aka ER-initiated separations

not voluntarily resignations

What about resignations = constructive firings?

Not sure...!

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What is a “Termination”?

Termination must be final or “indefinite” employment separation – doesn’t count if EE is seasonal.

Principle: The clearer the termination, the stronger the affirmative defense

www.bradfordbarthel.com 130

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What is a “Termination”?Job Abandonment?

Tricky – esp if the EE later claims they left to go to doctor.

A way to mitigate this problem:

1. have a clear directive on absences in EE handbook, and

2. send letter to EE who isn’t showing up. (Certified mail)


HYPOFacts:

� EE gives two weeks' notice

� ER "lets [EE] go" before two weeks ends

Holding: not barred by LC 3600(a)(10)

Reason: "no exception in the case law that converts a voluntary resignation into a termination whenever an employee extends the usual courtesy of offering her employer some notice before departing, and the employer declines."

"Section 3600(a)(10) was designed to protect employers and insurers from retaliatory workers' compensation claims made by employees upset about losing their jobs, not to preclude the claims of individuals who willingly quit their positions."

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NOTICE OF TERM/LAYOFF� "notice of termination” means actual notice (not

constructive)

� just b/c EE knows a termination or layoff is coming, or should know, does not mean notice has been given.

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ER'S KNOWLEDGE OF INJURY

BEFORE TERMEE must prove ER had "knowledge"

Knowledge by Supervisor or Person in Authority

EE must inform “person in authority”.

LC 5402 - notice can be "obtained from any source on the part of the employer, his or her managing agent, superintendent, foreman, or other person in authority."

not a co-worker

not a union rep

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Knowledge of Accident

NOT Enough

NEED: knowledge injury

Can you guess why?

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EX. forklift "accident"claim form:

"NA" next to "Describe injury and part of body affected."

IW terminated 2 weeks later (b/c of "accident")

H: no notice of "injury"

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Timing of Notice of InjuryNotice immediately before term?

EE knows is about to be fired?

NO PROBLEM

even notice made contemporaneously w/ term. notice

=

no LC 3600 bar

Notice of injury 1 minute after notice of term...?

CLAIM IS BARRED

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EVIDENCE OF INJURY IN PRIOR

MEDICAL RECORDSmed records need NOT est AOE/COE

ONLY need extist pretermination injury

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INJURY SUBSEQUENT TO

NOTICE OF TERMINATION(BUT BEFORE TERM EFFECTIVE DATE)

post-term defense inapplicable

Lesson?

don't give advance notice 139

How to line up for

the defense

� Terminate

� Not “wait and see what happens.”

� Not “I told him not to come in Monday.”

� Not “I told him that if he went to Europe to visit his mother he wouldn’t have a job when he get back so he should know better.”

� Terminate

(Get an employment atty involved for questions about terminating can be complex.)


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How to line up for the defense2. Document everything. Witness names, performance

issues, why the person was fired.

[Applicants may try to claim that the termination was in retaliation for claiming an injury (even if you don’t know about it) so get your defenses ready before you fire them.

If they did claim an injury, then the post-term defense doesn’t apply.]


How to line up for the defense

3. Separation agreement – have atty draft a letter that both parties can sign that indicates “no injuries at work” (in addition to other provisions).


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How to line up for the defense3. Severance Package - offer severance package in

return for the letter they review and send back within “x” number of days.

Avoids late claims

1. “forgot” an injury

2. “everything happened so fast.”


Have you heard the news re CTs?

LC 3600(a)(10)(D) applies!

Why rarely win?

“knowledge”

Need great depo!

(it’s won or lost there!)

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PSYCH

The good news:

Post-term claims = barred by LC 3600

The bad news:

Psych excluded from post-term defense under LC 3600

The good news:

Post-term psychs barred by LC 3208.3(e)

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PSYCH POST-TERM DEFENSE� Defense burden: prove claim filed post-term

� EE burden: avoid LC 3208.3(e) by...

1) demonstrating "by a preponderance of the evidence that actual events of employment were predominant as to all causes combined", and

2) one of the following:

a. ER was aware of claimed injury before EE was notified of term/layoff

b. EE's med records existing before notice of term/layoff contain evidence of psych treatment

c. finding of sexual or racial harassment by any trier of fact

d. DOI is after notice term/layoff, but before eff. date of term\layoff

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GOOD FAITH PERSONNEL ACTIONLC 3208.3(h) provides:

“No compensation under this division shall be paid by an employer for a psychiatric injury if the injury was substantially caused by a lawful, nondiscriminatory, good faith personnel action. The burden of proof shall rest with the party asserting the issue.”

Need to establish:

1. lawful,

2. nondiscriminatory, AND

3. good faith personnel action.

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6 Month Bar to Psych � LC 3208.3(d) provides:

� “… no compensation shall be paid pursuant to this division for a psychiatric injury related to a claim against an employer unless the employee has been employed by that employer for at least six months.”

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Note: Less than 6 months of

work may be “trumped” by1. IW having cumulative > 6 months of work (not

consecutive) like:

� Working modified duties post-claim,

� Prior periods of work for insured,

� Even “unpaid” work before hired

2. Victim of violent act at work

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Note: Less than 6 months of

work may be trumped by3. “Sudden and Extraordinary” Event like injury out of

scope from IW’s normal occupations hazards.� EX. 1: Tree trimmer falling out of tree may not have a

compensable claim b/c falling out of tree is w/in foreseeable occupational hazard; however,

� EX. 2: Your WC defense atty falling out of tree likely is compensable.

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Donald Barthel

2518 River Plaza Drive

Sacramento, CA 95833

Office: (916) 569-0790

Cell: (916) 996-1263

[email protected]

Amir F. Adil

2841 Junction Avenue, Suite 114

San Jose, CA 95134

Office: (408) 392-8202

[email protected]

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by donald barthel& amir f. adil bradford & barthel, llp · pdf file1/29/2016 1 by...

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