Tag Archives: employment

Court Reverses Award of Psychiatric Injury

The First Appellate District Court of Appeal has closed what could have turned into a significant expansion of the concept of “sudden and extraordinary employment condition” contained in Labor Code § 3208.3(d) with a reversal of a W.C.A.B. decision awarding benefits for a psychiatric injury in Travelers Casualty and Surety Co v W.C.A.B. (Dreher).

The applicant was employed as a live-in maintenance supervisor for an apartment complex and had been employed for only 74 days at the time of his injury on Oct. 19, 2009. He was walking in the rain from one building to another in the complex, when he slipped and fell on a slippery concrete sidewalk sustaining multiple significant injuries, including fractured pelvis, injuries to his neck, right shoulder, right leg and knee. He also suffered gait derangement, a sleep disorder and headaches. As a result of those injuries, he developed psychiatric complaints as a consequence of his multiple surgeries and continuing issues. A medical report supported a relationship between his injury and a psychiatric disorder.

However, at trial, the WCJ denied his claim for his psychiatric condition on the basis that his employment failed to meet the minimum six-month requirement for employment under Labor Code § 3208.3(d) and further determined the exception for a “sudden and extraordinary employment condition” had not been met. On reconsideration, a split panel reversed the WCJ holding and determined that the applicant’s fall on slippery concrete met the sudden and extraordinary requirement of the statute. The Court of Appeal granted Travelers’ petition for writ of review.

After dealing with some procedural issues, the court got to the heart of the matter. Reviewing the multiple cases outlining the criterion for applying the sudden and extraordinary employment condition, the court refused to find that a slip and fall on a sidewalk met the criterion. Citing the landmark decision in Wal-mart v W.C.A.B., the court noted that the mere fact the injury was accidental did not meet the statutory exception:

“If the argument were made that an accidental injury constitutes a ‘sudden and extraordinary employment condition,’ we would reject it. For one thing, such an interpretation would mean that psychological injuries resulting from accidents would not be subject to the six-month rule, but such injuries arising from cumulative physical injury would be governed by that limitation; this distinction would make no sense, and we are reluctant to attribute irrational intentions to the Legislature.”

See Also: Appeals Court Settles Key Work Comp Issue

The court also rejected the argument advanced by applicant that the unexpectedly catastrophic nature of the injury served as a basis for an extraordinary employment condition.

“Here, the statute provides that the six-month limitation does not apply if the psychiatric condition is caused by a ;sudden and extraordinary employment condition.’ (§ 3208.3, subd. (d).) The statute does not include the nature of the injuries resulting from an incident as a basis for the exception. Had the Legislature intended to include the nature of the injury as a factor in the definition of a sudden and extraordinary employment condition, it knew how to do so….

“Accordingly, although Dreher’s injury was more serious than might be expected, it did not constitute, nor was it caused by, a sudden and extraordinary employment event within the meaning of section 3208.3, subdivision (d). The evidence showed that Dreher routinely walked between buildings on concrete walkways at the work site and that he slipped and fell while walking on rain-slicked pavement.”

The court further noted the burden was on the employee to prove the sudden and extraordinary employment condition, and the applicant’s testimony that he was “surprised” by the slick surface did not demonstrate that his injury was caused by an uncommon, unusual or totally unexpected event.

The matter was remanded to the W.C.A.B. with instructions to deny the claim for psychiatric injury.

Comments and Conclusions:

This is a relatively short appellate decision but with a firm result. The court was clearly of a mind that the W.C.A.B.’s interpretation of what constituted a sudden and extraordinary employment condition did not meet the common sense test for legislative interpretation. Commissioner Caplane, in her dissent in the W.C.A.B. decision, had noted that the majority’s opinion on what constituted a sudden and extraordinary event could be applied to virtually every claim because injuries were almost always unexpected when they occurred. While the court did not make a specific comment, the idea that an employee slipping on a wet sidewalk was in any way shape or form “extraordinary” simply did not pass the smell test.

The court’s holding that the nature of the injuries sustained did not figure into the equation is also of considerable help in defining application of the rule under Labor Code § 3208.3(d).

While the court’s interpretation of Labor Code § 3208.3(d) is helpful for that section, I do not think this decision is going to have any impact on our understanding of the language in Labor Code § 4660.1(c)(2)(B), with the exception created for “catastrophic injuries.” That section clearly intends there be consideration of the nature of an injury in the determination of whether additional psychiatric sequelae is to be included in the calculation of PD.

State of Workers’ Comp in California

At the 2015 California Workers’ Compensation & Risk Conference, this panel of industry stakeholders weighed in on the overall condition, including cost drivers and legislation, affecting California’s workers’ compensation system:

Moderator: Mark Walls, VP communications and strategic analysis at Safety National

David North, CEO at Sedgwick

Kevin Confetti, deputy chief risk officer at University of California

Ann Schnure, VP risk management, claims, at Macy’s

Dawn Watkins, AIC, PHR, ARM, director integrated disability management at LA Unified School District

Julius Young, partner at Boxer & Gerson

Richard M. Jacobsmeyer, founding partner at Shaw, Jacobsmeyer, Crain & Claffey

The first question was: How does the California’s workers’ compensation system compare with other states?

California ranks #1 in costs compared with the rest of the U.S. California simply has more claims that cost more money. That is why California is the most expensive and complicated state.
Every time California changes a law, the system gets more complex. What influences workers’ comp is far more than just the laws, though. The social norms are different in California. It is a unique culture of employment that affects everything. There are a lot of things that employers and the healthcare community do that are driving these costs.

Why are claims costs so expensive in the Los Angeles basin vs. the rest of California?

Injured employees are transferred away at a larger rate from the primary treating physician of the employer’s choice. There is a very different treatment pattern compared with other states, and this medical treatment is driving costs for employers. Litigation rates are higher, which is part of the culture in that area. Very often, LA attorneys try to take medical control and send the injured employees to the doctors that the attorneys prefer. Attorneys and physicians who have had long-lasting relationships are referring almost exclusively to each other. Attorneys are aggressively advertising to injured workers, and workers are responding.

What else is driving workers’ compensation costs in California as a whole?

Once an employee gets an attorney referral, it is out of the employer’s hands. The employer no longer has the authority to properly take care of the injured worker. California is the only state where, if you do not like what you are paid, you file a lien. This has nothing to do with the quality of care for the injured worker. The root of so many of these issues is the doctor community in the state. Maybe the doctors need to be trained on billing and medical treatment utilization schedule  (MTUS), but it’s believed that some may be billing higher than the fee schedule to see if someone will actually pay the higher rate billed. The most important person in workers’ comp is the injured worker. We should be spending all the money that employers pay on things like bill review on helping the worker heal. Too much of the costs that employers pay are not going to the injured worker.

What concerns do you have about current legislation and case law affecting the system?

We, mistakenly, have allowed legislation to tell us how to comply. It has become much more about the process rather than helping an injured worker get better. Doctors will say how they think they should treat, but have to send the case through utilization review, which sometimes contradicts the doctor’s opinion. This deflates that injured worker’s confidence on whether he is getting the best care. It is possible that doctors are not trained on the MTUS and keep trying to push things through the system that shouldn’t be. We should focus on how to better train doctors on the system. The system is so complicated. What employers need to do is try to stop the employees from getting into the system. We need to intervene fast. Get the employees good, quality medical care quickly and eliminate the potential for them to get stuck in the system.

How do you improve the quality of benefits to injured workers in California?

The least-likely employee to file a claim is the employee who thinks her employer cares about her. Employees are much less likely to litigate cases if the employer is providing them with good care and communication. That’s the gold standard for trying to decrease litigation. It is so important for employers to reflect on how they are treating their injured workers. Are you treating them like a member of your team or just another expense? Often, they are afraid that they are going to lose their job. Let them know what workers’ comp is and what they should expect. It is so complicated. Make sure they are well-informed and understand that return to work means they are not going to lose their job because of an injury. Claims examiners in California have a tough job. We need to hire smart people and give them appropriate workloads. They are the glue that holds everything together. California currently has a shortage of qualified adjusters, and it is a large problem. The industry, as a whole, needs to contribute to this issue so we can get quality people interested in this career path.

7 Reasons to Major in Insurance

1. 100% Employment: One of the big reasons to go to college is to make sure you’re employed in a good career after you graduate. The insurance industry is predicted to continue growing for decades, and the existing risk management and insurance (RMI) programs only feed 15% of its needs each year, which means if you graduate with an RMI degree you’ll be a hot commodity! RMI programs had 100% employment, even through the 2008-2012 recession.

2. An RMI degree is basically a focused business degree: Majoring in business is a very popular choice already, but it’s a very general degree that usually takes a few years to really get you a solid career. RMI degrees are usually housed by a university’s school of business and have all the usual classes you’d get in a business degree (accounting, finance, marketing, statistics, management, etc) with the addition of a few RMI specific classes. What this means is that even if you change your mind and decide you don’t want to work in insurance (which you won’t), you can still easily get the same jobs that you would have been getting with a general business degree.

3. It is preparation for a career making a difference: If you love making a difference in the world, you’ll absolutely love the insurance industry! Even though we get a bad name in the press sometimes, the reality is that we are here to help people and businesses get back on their feet when unexpected things happen, and being a part of that is very rewarding. Also, many carriers offer time off to volunteer and to study for insurance designations.

4. Insurance is an incredibly stable career: The economy will continue in its ebbs and flows, and that means every few years people will lose their jobs when the economy contracts. Some very popular careers like banking, consulting and real estate are usually among the worst-hit when the economy slows. Insurance is incredibly stable because pretty much regardless of what happens in the overall economy, people and businesses continue to need insurance. This means career stability for you!

5. You’ll have more vacation than most of your friends: Most insurance carriers start you up with around 18 days of vacation a year. That means much more time off than most employees just starting careers in other industries.

6. Your senior year will be a LOT less stressful: RMI majors are expected to continue to be in high demand and feed only a portion of the insurance industry’s need for new talent, which means that a lot of RMI majors have accepted great job offers by December of their senior year, a good five months before graduation, and senior year is a lot more fun when you don’t have to worry about finding a job afterward.

7. You’re pretty much mathematically guaranteed to be in demand: The current makeup of the insurance industry workforce is very mature, meaning that 1 million insurance professionals, 43% of the workforce, are expected to retire in the next 10 years. In addition, the industry is growing and is expected to create 400,000 jobs. RMI majors are already pretty much immune to unemployment; they will be in increasingly high demand right around the time you graduate!

You pretty much can’t go wrong by majoring in RMI! There are not a lot of RMI schools out there, so click on the map below to open an interactive map of RMI schools. Schools marked in red have a full RMI major while schools marked in green have an RMI minor or concentration.

New Questions on Uber and Lyft

One of the more interesting and challenging issues to surface is the status of drivers at transportation network companies (TNCs) such as Uber and Lyft. Are some or all of them employees? A federal court in California just ruled that this issue may be resolved in a class action (although this is subject to appeal).

That, alone, is a difficult call. Here are two web sites discussing the issue.

http://www.newyorker.com/magazine/2015/07/06/gigs-with-benefits

http://www.thelegalintelligencer.com/latest-news/id=1202730474534/Avoiding-Penalties-When-Classifying-Independent-Contractors?slreturn=20150602053546

Commentary addressing this issue has focused primarily on the added expense created by employee status. “For an employer, the main difference between contractors and W-2 employees is that employers have to ‘withhold income taxes, withhold and pay Social Security and Medicare taxes and pay unemployment tax on wages paid to an employee,'” according to the Internal Revenue Service.

Apart from these added expenses, status as an employee creates some difficult insurance challenges. Here a few:

–If you write a workers’ compensation policy for the TNC’s employees, how many employees are you insuring? Only those who work in the office, or the hundreds or thousands of drivers on the road?

–Most statutes or regulations covering TNCs such as Uber and Lyft require them to carry insurance on their drivers in various amounts — e.g., $1 million from from the time of agreeing on a ride to after the dropoff. Usually, there is a lower amount required for the time the driver is cruising with the app on looking to connect with a fare ($50,000 primary and $200,000 “excess” in California).

If the driver is an employee, these limits become largely irrelevant because the TNC, as the employer, is liable without limit for any injuries caused by an employee driving within the scope of employment. Put another way, the injuries are backed by all of the TNC’s assets, including any insurance it may carry.

–But the issue is more complex than that. What if the driver has a collision on the way to the city, but before turning on the app? Usually, when one is going to or coming from work, the commute is not considered to be in the scope of employment – i.e., no liability on the part of the employer. This “going and coming” rule changes, however, when the employee must use her car in the work. Obviously, TNC drivers must use their cars.

Take the case of Judy Bamberger. She used her car during work to visit clients and carry out other work-related chores. On her way home, she decided to stop for yoga and yogurt. As she made a left turn, she collided with a motorcyclist. Is the employer responsible? “Yes,” said the California Court of Appeal. In Moradi v. Marsh USA, Inc., 210 Cal. App.4th 886 (2013), the court held that her driving fell within the scope of her employment because, since she used her car in her work, going to and from work conferred an “incidental benefit” on the employer.

Thus, the TNCs’ liability may extend well beyond the “app on-app off” brackets.

–If this is not complex enough, consider this. Many drivers keep several apps on as they cruise. If a driver keeps three apps on and has a collision, is the driver an employee of all three TNCs? Does that change once the driver accepts a fare? What about the going and coming rule? If the app is not yet turned on, is the driver an employee of each company for whom the driver has an arrangement to drive?

One may imagine other “shared economy” scenarios where status as an employee will affect not only expenses line benefits, but also liability and related insurance issues.

Your Device Is Private? Ask Tom Brady

However you feel about Tom Brady, the Patriots and football air pressure, today is a learning moment about cell phones and evidence. If you think the NFL had no business demanding the quarterback’s personal cell phone—and, by extension, that your company has no business demanding to see your cell phone—you’re probably wrong. In fact, your company may very well find itself legally obligated to take data from your private cell phone.

New Norm

Welcome to the wacky world of BYOD—bring your own device. The intermingling of personal and work data on devices has created a legal mess for corporations that won’t be cleared up soon. BYOD is a really big deal—nearly three-quarters of all companies now allow workers to connect with private devices, or plan to soon. For now, you should presume that if you use a personal computer or cell phone to access company files or email, that gadget may very well be subject to discovery requirements.

Security & Privacy Weekly News Roundup: Stay informed of key patterns and trends

First, let’s get this out of the way: Anyone who thinks Tom Brady’s alleged destruction of his personal cell phone represents obstruction of justice is falling for the NFL’s misdirection play. That news was obviously leaked on purpose to make folks think Brady is a bad guy. But even he couldn’t be dumb enough to think destruction of a handset was tantamount to destruction of text message evidence. That’s not how things work in the connected world. The messages might persist on the recipients’ phones and on the carriers’ servers, easily accessible with a court order. The leak was just designed to distract people. (And I’m a Giants fan with a fan’s dislike of the Patriots).

But back to the main point: I’ve heard folks say that the NFL had no right to ask Brady to turn over his personal cell phone. “Right” is a vague term here, because we are still really talking about an employment dispute, and I don’t know all the terms of NFL players’ employment contracts. But here’s what you need to know:

Technology and the Law

There’s a pretty well-established set of court rulings that hold that employers facing a civil or criminal case must produce data on employees’ personal computers and gadgets if the employer has good reason to believe there might be relevant work data on them.

Practically speaking, that can mean taking a phone or a computer away from a worker and making an image of it to preserve any evidence that might exist. That doesn’t give the employer carte blanche to examine everything on the phone, but it does create pretty wide latitude to examine anything that might be relevant to a case. For example: In a workplace discrimination case, lawyers might examine (and surrender) text messages, photos, websites visited and so on.

It’s not a right, it’s a duty. In fact, when I first examined this issue for NBCNews, Michael R. Overly, a technology law expert in Los Angeles, told me he knew of a case where a company actually was sanctioned by a court for failing to search devices during discovery.

Work Gets Personal

“People’s lives revolve around their phone, and they are going to become more and more of a target in litigation,” Overly said then. “Employees really do need to understand that.”

There is really only one way to avoid this perilous state of affairs—use two cell phones, and never mix business with personal. Even that is a challenge, as the temptation to check work email with a personal phone is great, particularly when cell phone batteries die so frequently.

The moral of the story: The definition of “personal” is shrinking all the time, even if you don’t believe Tom Brady shrank those footballs.

For further reading: here’s a nice summary of case law.