What is Sexual Harassment?

What is Sexual Harassment?
by Sue Bradford
What is Sexual Harassment?

Sexual harassment is a form of illegal discrimination. It may include the unwelcome behavior of a supervisor, co-worker, or third party. It covers male-to-female, female-to-male, male-to-male, and female-to-female actions. Sexual harassment may occur verbally, physically, or visually.

The right to a sexual harassment-free work environment is protected by federal and state law.

There are three categories of sexual harassment. As a supervisor you need to know sexual harassment not only encompasses your employees but also non-employees, such as independent contractors and professional relationships. Harassing individuals are not limited to employees; they may be outside third parties. The victim need not even be the person harassed but can include anyone affected by the offensive behavior.

TD Caps & Exceptions: "A Riddle Wrapped in a Mystery Inside an Enigma"

TD Caps & Exceptions: "A Riddle Wrapped in a Mystery Inside an Enigma"
by Donald R. Barthel, Esq.
Almost immediately after the passage of SB 899 (4/19/04), the "TD cap" language found in Labor Code §4656(c) became the subject of vigorous dispute and rancor. Labor Code §4656(c), provides:
  • Aggregate disability payments for a single injury occurring on or after the effective date of this subdivision, causing temporary disability shall not extend for more than 104 compensable weeks within a period of two years from the date of commencement of temporary disability payment.
  • Notwithstanding paragraph (1), for an employee who suffers from the following injuries or conditions, aggregate disability payments for a single injury occurring on or after the effective date of this subdivision, causing temporary disability shall not extend for more than 240 compensable weeks within a period of five years from the date of the injury:
    • Acute and chronic hepatitis B
    • Acute and chronic hepatitis C
    • Amputations
    • Severe burns
    • Human immunodeficiency virus (HIV)
    • High-velocity eye injuries
    • Chemical burns to the eyes
    • Pulmonary fibrosis
    • Chronic lung disease

Documents, Documents, Documents: Litigating Liens and Rule 10608

Documents, Documents, Documents: Litigating Liens and Rule 10608
by Scott Rountree
Don't Have Enough Work?
Rule 10608 requires plenty of that. In a nutshell, this statute requires that lien claimants who request it be copied on all medical reports (not simply reports obtained on behalf of the defense).

Rule 10608(a) requires that medical reports be served on lien claimants within six days after receipt of a demand. Thereafter all subsequent reports must be served within six days after receipt. Additionally, Rule 10608 (b) states that DORs and objections to DORs must be accompanied with all medical reports not previously served on lien claimants requesting service.

In your "spare time," take a look at the endless number of bills and liens that cover your desk. How many of them have boilerplate language demanding all medical reports pursuant to Rule 10608? Most? All? The realities of a claims department make compliance with this regulation daunting, if not impossible.

California Supreme Court Issues Favorable Ruling for Bradford & Barthel's Kent Ball, Esq.

California Supreme Court Issues Favorable Ruling for Bradford & Barthel's Kent Ball, Esq.
by Don Barthel, Esq.
Exciting news! Kent Ball in Bradford & Barthel's Walnut Creek office just had a favorable ruling from the California Supreme Court in Larry Gossett vs. WCAB. The decision has been written up in several industry publications including the Insurance Journal, Forbes.com, WorkersCompensation.com, and WorkCompCentral.com.

In summary, Kent obtained apportionment to an asymptomatic condition even though the physician who provided the apportionment opinion, in a supplemental report, that his determination was "too speculative." The trial judge agreed. The WCAB, on reconsideration, reversed the trial judge's award thereby reducing a 76% award (worth about $175,000 with the life pension) to 65% ($81,000). The Board, in its Decision After Reconsideration, noted the "doctor's reference to speculation is surplus language and does not undermine his opinion on apportionment..."

In short, despite the doctor's express reservations, the WCAB agreed with Kent Ball that the doctor's initial apportionment determination was legal and valid "substantial evidence." Applicant's Petition for Writ of Review with the Court of Appeal was denied, as was his Petition for Review with the Supreme Court.

Yes, you can even get apportionment with a waffling doctor!

Congratulations, Kent!

Don Barthel, Esq. is a founding partner of Bradford & Barthel, LLP and a founder of B&B Rating Services.

Pendergrass and Baglione Reversed! B&B Vindicated!

Pendergrass and Baglione Reversed! B&B Vindicated!
by Donald R. Barthel, Esq.
Baglione Revisited
B&B attorneys have been arguing over these many months that the WCAB commissioners had it wrong in Torres (a panel decision) as well as Pendergrass and Baglione (two 1/24/07 en banc decisions).

It turns out that B&B was right! The panel in Torres v. SDM Precision Products (which included Commissioners Rabine, Brass and Caplane) interpreted Labor Code §4660(d). The issue before the WCAB was whether a comprehensive medical/legal report that issued prior to 1/1/05, had to indicate evidence of the existence of permanent disability in order for the old Permanent Disability Rating Schedule (1997 PDRS) to apply. In Torres, an AOE/COE report was obtained on 3/18/04. It did not find permanent disability. The Panel held that in order for the 1997 PDRS to apply to a pre-1/1/05 injury, it is sufficient that any comprehensive medical-legal report issue prior to 1/1/05. In other words, obtaining an AOE/COE report (even a report that found applicant TTD or determined there was no injury AOE/COE) prior to 1/1/05 would require using the old (and significantly more expensive) 1997 PDRS.

Fight Audit Unit, Save $1,000,000

Fight Audit Unit, Save $1,000,000
by Sherry Dozier
The results are in. We win!

In the B&B Blog, November/December 2006, Volume 2, Number 6 issue in an article entitled "The Audit Unit Is Made Up of People Too", I discussed various strategies we recently developed while assisting a client during an Audit Unit Investigation. We knew the strategies were working, but we had no idea how much money would be saved!

We reduced a $1,200,000 penalty assessment to $55,000! What a difference a few months of diligent preparation and arguing can make! This process was long and tedious, but it was well worth the time and effort.

Fuentes Lives

Fuentes Lives
by Donald R. Barthel, Esq.
 The California Supreme Court, in a unanimous opinion filed on 5/3/07, issued a stunning defeat to the California Applicants' Attorneys Association. The decision (which involved five cases: Brodie/Welcher/Strong/Lopez/Williams) concluded that in cases in which the applicant received a prior permanent disability award, apportionment of permanent disability is calculated by determining the overall percentage of PD and subtracting the percentage of PD caused by other factors, including the prior PD award.

How many options did the court have? This is best illustrated by Nabors v. SCIF, 70 CCC 704, a 2005 en banc decision. In that matter, the applicant had a prior Stipulated Award of 49%. His most recent (and currently litigated) injury resulted in a total of 80% PD. The following were the various potential methods for calculating apportionment:

Formula A: 80% PD - 49% PD = 39% PD ($22,610.00)

Formula B: 461.5 weeks - 234.75 weeks = 226.5 weeks ($38,505.00)

Formula C: $118,795.00 - $42,476.00 = $76,319.00

The Ramifications of Pendergrass & Baglioni

The Ramifications of Pendergrass & Baglioni
by Donald R. Barthel, Esq.
  CAAA Celebrates Christmas in January with Pendergrass (1/24/07)

The WCAB's recent en banc decision, Pendergrass v. SCIF (1/24/07), gave cause for unexpected celebration among California applicant attorneys.

In a blatant attempt to apply the old, and significantly more expensive,1997 Permanent Disability Rating Schedule (PDRS) to virtually all pre-1/1/05 injuries, the WCAB issued an en banc decision providing that applicants who are TD prior to 1/1/05 will not be rated pursuant to the 2005 PDRS/AMA Guides (5th). In so doing, the WCAB has increased PD awards by greater than 50 percent.*

What happened? Applicant suffered an admitted injury and received TD from 6/30/04 through 7/19/05. With this information, the WCAB focused on Labor Code section 4660(d), which provides that the 2005 PDRS will apply to pre-1/1/05 injures unless, inter alia, "the employer is... required to provide the notice required by Section 4061 to the injured worker." This rule, concluded the majority of the commissioners, placed applicant under the 1997 PDRS.

What is a "Section 4061" notice? It is the end-of-the-TD-gravy-train notice that advises the applicant that TD is ending and discusses the prospects of PD (that is, PD "will be paid", "may or is payable, but that the amount cannot be determined" and so on).