Homeowner Cases: Work Comp Claims- Are They Covered by the Homeowner Policy?

by George Markos (November 6, 2013)

This is a short introduction with respect to Homeowner Cases and issues that may help the attorneys in your office.

Any time a gardener, landscaper, day helper or a maid files a claim for injury, the question that will need to be addressed first by the defendant or their attorney is: does this claim fall under Workers’ Compensation coverage, or does the homeowner policy cover this scenario?

In determining those issues, it is important that you consider these steps, Labor Code (Labor Code hereinafter “LC”) provisions, and points of law:

SB 863 Cheat Sheet

by Michael Peabody (October 1, 2013)

SB 863 has had a very significant impact on the way that cases are being handled.  Here is a quick breakdown of some of what has happened:

  • Lien claimants have to pay a fee to the WCAB or they will be dismissed.
  • Initially courts were reluctant to dismiss lien claims that had been filed but for which fees had not been paid. Then judges were mandated to do so.
  • The first couple of months after the mandatory dismissal rule was in place, there was "lien carnage" - i.e. significant numbers of lien claimants not paying the fee.
  • Now we are seeing that lien claimants are more aware of this and are paying the day before, or right up until the actual time of a conference.

U.S. Supreme Court Narrows Scope of Employers' Liability in Title VII Harassment and Retaliation Claims

by Michael Peabody (August 7, 2013)

On Monday, June 24, 2013, the U.S. Supreme Court issued two 5-4 decisions making it more difficult for a plaintiff to prove an employer violated Title VII of the Civil Rights Act of 1964 (Title VII). Title VII is the federal law designed to protect employees from discrimination on the basis of factors such as race, sex, and religion.  It has long been established that an employer’s liability for workplace harassment depends on the status of the harasser.  If the harasser is the victim’s co-worker, the employer can be held liable if it is negligent in controlling working conditions once they are aware, or should be aware, of the harassment.  An employer can also be held liable if the harasser is a supervisor.

“It’s Not Personal, It’s Strictly Business”…Or Is It? The Importance of Client and Employer Relationships for the Workers’ Compensation Defense Attorney

by Sean Handy 

It should come to no surprise that, especially in the field of Workers’ Compensation defense law, establishing and maintaining the best possible working relationship with the client and the employer is of the utmost importance.  This is especially crucial when the employer is working under a high-deductible policy.  This is a rapidly-growing trend.  With a high-deductible policy, the employer generally demands to be much more involved given that the majority of the costs associated with litigating each claim are coming directly out of their pocket.  As a result, there is a critical equilibrium that must be reached between working with both the carrier and the employer.

The Subpoena Duces Tecum

Within the wonderful world of Worker’s Compensation, there lurks a tool that when utilized will require you to show up, answer questions and even makes you bring documents with you. This is known as a Subpoena for the Production of Documents, also known as the Subpoena Duces Tecum (hereinafter SDT).

What is “4850 time”?

by Kia Myers

          As a former police officer, I am quite familiar with this term.  However, many people are not, due to the specific application to a limited number of individuals in the labor force as a whole.  “4850 Time” refers to Labor Code § 4850, which provides up to one year of leave of absence at full pay, without tax deduction, for police officers, firefighters and “other” safety personnel when temporarily totally disabled due to an industrial injury.  The benefit may start and stop several times and does not need to be continuous.  It can be given up to five years from the date of injury so long as it starts again before the five year anniversary has passed.

          This article will address some of the “who”, “what”, “when”, “where”, “how” and “why” questions that are asked in an attempt to clarify this somewhat confusing section of the Labor Code.

Navigating Lien Issues Post SB-863

by Alec Bradford 
This article will provide a brief summary of the environment for lien claims post SB 863.

          SB 863 has changed the landscape regarding the litigation of liens.  Even before its scheduled enactment on January 1st 2013, the effects of the bill were noted with a flood of lien claimants filing DOR’s in an attempt to avoid the $100 appearance fee authorized by Labor Code Section § 4903.06 and 8 Cal Code Regs § 10208(a). A $150 lien filing fee for all liens filed after January 1, 2013 was included in Labor Code Section § 4903.05. This has caused quite a bit of consternation among lien claimants, and subsequent attempts to skirt these regulations have been rebuffed by the WCAB.

We have witnessed multiple rulings which are signaling a shift in the WCAB’s handling of liens, providing additional teeth to the legislation enacted by SB 863. The Board has consistently found that lien claimants who do not pay the appearance fees timely will have their lien claims will have their liens dismissed with prejudice [1].   Simultaneously, the Board has indicated an increased willingness to issue sanctions for lien claimants that fail to meet their burden of proof [2], as well as an increased willingness to sanction or even suspend non-attorney lien claimant hearing representatives who commit conduct that would be considered sanctionable if committed by an attorney [3].

“Good Cause” Termination and Ending Temporary Disability Benefits

by Michael P. Burns, Esq.

          Temporary disability provides injured workers with a replacement for lost wages they would suffer as they recover from an industrial injury.  But what happens when an employer terminates an injured worker who is receiving temporary disability, but who has been falsifying his time card?  Or an employee who is terminated for being consistently tardy in violation of company policy?  May the insurer end temporary disability?   What is the potential liability or downfall for doing so?  All of these questions can lead to a host of different answers.

The Rest of the Story: In Defense of Liens and Good Faith Negotiation

by Timothy W. Rose, Esq.

In late February 2013, the Audit Unit of the DWC provided a newsline release which dealt with good faith negotiations and liens.  The release stated:

The Audit Unit of the Division of Workers’ Compensation has received an increasing number of complaints from individuals and entities providing services on a lien basis in workers’ compensation claims. The complainants report that some payors have adopted a policy of refusing to discuss negotiating the provider’s liens until the provider of the services demonstrates it has filed a lien with the WCAB and paid the applicable lien filing or activation fee required by the enactment of SB 863. Such a policy is both unsupported by the plain language of Labor Code sections 4903.05 or 4903.06, and directly contrary to the legislative intent of those sections and existing law.

Spinal Surgery Requests Pre-1/1/13 Dates of Injury and the SB 863 Gap

by Timothy W. Rose, Esq.
In an attempt to simplify the ever-confusing Workers’ Compensation world in the great State of California, our legislative branch drafted SB 863 in 2012.  With the stroke of his pen, Governor Brown enacted sweeping legislation, with effective and varying start dates for various provisions of the new law.  However, with varying start dates comes confusion regarding various provisions.  A spinal surgery request is one of the areas which appears to have a problem with the implementation date of 7/1/13.

Effective 1/1/13, provisions under Labor Code § 4062(b) pertaining to the spinal surgery second opinion process have been eliminated from the Labor Code.  Overall, this is a positive result for the Defendant from SB 863.  The new independent medical review (IMR) process kicks in on 7/1/13, for dates of injury prior to 1/1/13.  However, a new question has surfaced as a result of this substantial change.  How do we address spinal surgery requests for dates of injury prior to 1/1/13?

“Everybody in the Whole Cellblock/Was Hoping the Benefits Won’t Stop”: Workers’ Compensation and Incarcerated Applicants

by Michael P. Burns, Esq.

Many adjusters and defense counsel have run into the following situation at least once: An applicant seems to disappear—he stops treating, misses evaluations, and fails to appear at hearings.  Applicant’s counsel is often at a loss to explain this situation.

Then, the mystery is solved: Applicant has received an all-expenses paid trip to one of California’s correctional institutions—in other words, they’re locked up, and they aren’t getting out anytime soon.

An applicant’s incarceration creates headaches for all parties, in particular, the insurer and defense counsel.  Does the insurer continue to pay indemnity?  Who controls medical treatment?  Does defense counsel have to wait to take applicant’s deposition?

To Treat Or Not To Treat A Non-Industrial Medical Condition (From Fat Farms To Liver Disease)

by Don Barthel, Esq.

"You broke it, you bought it", is a fairly accurate rule of thumb applicable to California's workers' compensation system.  When an industrial accident results in damage to a limb (or neck, or back, or heart, etc), the defense is on the hook to provide all treatment reasonably necessary to cure and/or relieve the effects of that injury.

But can the defense really be liable for the treatment of non-industrial conditions and, if so, when?

The Safety Net: Defending Against Cal/OSHA (Issue 1)

by Dave Jones-Landry, Esq.
After working for a number of years at a firm practicing almost exclusively in the area of occupational safety and health and defending employers against regulatory actions brought by Cal/OSHA, MSHA (the Federal Mine Safety and Health Admin.), and Fed/OSHA, I moved on to join Bradford & Barthel, LLP.  My move into workers’ compensation was smooth and natural, given that a good portion of my practice in occupational safety defense included defending employers against the “serious and willful misconduct” and 132a discrimination claims in the workers’ compensation forum that often accompany claims for catastrophic injuries.

As I became accustomed to work that is more directly associated with compensatory liability, as opposed to regulatory liability, I began to see that my background in regulatory defense could serve as a solid basis for bringing added value to B&Bs existing clientele, as well as to our clients’ clientele – the insured employers themselves.  If there is one thing that was reinforced time and time again in my former practice, it’s that most employers are not aware that there is anyone available to help them defend against Cal/OSHA citations, and indeed, many employers simply are not aware that they can defend against Cal/OSHA citations, or citations issued by other occupational safety regulatory authorities.

Spherical Models

by Don Barthel, Esq.

Bradford & Barthel, LLP is pleased to announce the creation of Spherical Models http://sphericalmodels.com.  Headed up by B&B’s Director of Knowledge, Innovation and Technology Strategies - Eric Hunter http://www.bradfordbarthel.com/profiles/eric-hunter, this business is built to provide thought leadership, consulting and business focusing on spherical business models through innovations in big data, social and collaborative cloud solutions.

“Each collaboration point within varying aspects of business are intersecting and overlapping spheres of communication. The spherical model builds on itself, with continual workflow innovation potential.” - Eric Hunter