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GMK’s 2016 Northern California Seminar

GMK is pleased to present our Annual Northern California Seminar on Friday, May 20th, 2016, 8:00 a.m. - 12:10 p.m. at the Marriott - Walnut Creek, 2355 North Main Street, Walnut Creek, CA.

Navigating the Complexity of Workers’ Compensation

Below is a glimpse of the morning’s topics and speakers:

• What Would You Do?
Dan Wagner, Esq. and Frank Su, Esq.
• How to Defend Against Cumulative Trauma Claims
George Krikes, Esq. and Ryan Frazier, Esq.
• New Case Law - Ryan Frazier, Esq. and Amanda Hart, Esq.
• Apportionment and Permanent Disability
Angela Trueblood, Esq. and Kirk Morales, Esq.

Approval for MCLE credits by the State Bar of California and Board of Legal Specialization is currently pending for attorneys. Certificates of attendance for obtaining continuing education credits will be available for Claims Professionals.

The half day seminar will begin at 8:00 a.m. and conclude at 12:10 p.m. Continental breakfast will be provided. Space is limited so please RSVP as soon as possible.

RSVP to Lauren Vargas at lvargas@gmklaw.com.

SAVE THE DATE - GMK’s 2016 Northern California Seminar

The half day seminar being held on Friday, May 20th, 2016 will begin at 8:00 a.m. and conclude at 12:10 p.m. The seminar will be held at:

Walnut Creek Marriott
2355 North Main Street
Walnut Creek, CA 94596


Continental breakfast will be served. Approval for MCLE credits by the State Bar of California and Board of Legal Specialization is currently pending for attorneys.

Certificates of attendance for obtaining continuing education credits will be available for Claims Professionals.

Additional information will be sent in future GMK Alerts; however, reservations are being accepted now. RSVP to Lauren Vargas at lvargas@gmklaw.com.

Labor Code §132a and Other Claims of Discriminatory Termination – The Prue Case

Labor Code §132a prohibits an employer from discharging or otherwise discriminating against an employee because the employee has filed (or made known his/her intention to file) a workers’ compensation claim. An applicant/employee can allege a violation of §132a by filing a petition with the Workers’ Compensation Appeals Board (WCAB). If there is a violation of §132a the employee is entitled to an increase in any compensation award by one-half (up to a maximum of $10,000) and costs of up to $250 in addition to reinstatement and reimbursement of lost wages and benefits.

Although it is the declared policy of the State of California not to discriminate against an injured worker, the California Court of Appeal in Dutra v. Mercy Medical Center Mt. Shasta (2012) 250 Cal.App.4th 750 concluded that the applicant/employee can only bring his/her §132a claim under the jurisdiction of the WCAB and cannot bring a civil tort action alleging a violation of public policy based on §132a.

However, in City of Moorpark v. Superior Court (1998) 18 Cal. 4th 1143, the California Supreme Court had previously held that §132a does not totally provide an exclusive remedy for the applicant/employee as §132a does not preclude the employee from filing a discrimination action under the Fair Employment and Housing Act (FEHA) or other common law claims for wrongful discharge.

A recent published case before the California Court of Appeal, Prue v. Brady Company (November 17, 2015) D066404 ___Cal.App.4th __, has broad applicability to employers with regard to work related injuries, §132a and FEHA claims and allegations of violation of the public policy based on asserted wrongful termination following a work injury. In Prue the employee alleged that he had suffered a work-related injury and was later terminated because of his disability. He did not file a §132a claim before the WCAB. More than one year after his termination he filed a civil action claiming that the termination was in violation of public policy.

Even though the Complaint specifically referenced Labor Code §132a, the court held that the employee had sufficiently alleged a common law tort claim of disability discrimination under FEHA and, therefore, his lawsuit for wrongful termination in violation of public policy could proceed on that basis. The court found that the two-year statute of limitations for a common law tort action applied rather than the one-year statute for FEHA claims and claims under Labor Code §132a so the plaintiff’s claim was timely. The court also denied the employer’s assertion that §132a was the employee’s exclusive remedy and allowed the common law tort cause of action for wrongful termination in violation of public policy to proceed.

What this means to you:

In addition to filing a §132a claim with the WCAB the employee has other legal avenues to seek redress against the employer if the employer takes an adverse action (usually termination) against the employee and the employee believes the action was based on his/her work-related injury and subsequent disability.

Additionally, the statute of limitations is longer for such a tort claim (2 years) as compared to the one-year limitation under §132a or FEHA. It should also be noted that this case was brought by a firm that typically represents applicants in WCAB proceedings and that many such firms are now filing civil cases alleging various violations of employment laws and/or public policy.

Employers must be vigilant in making sure that they do not take adverse employment actions against employees with work related injuries and/or disabilities.

For further information or assistance please contact GMK employment law attorney Jeanne Flaherty at 818-755-0444 or jflaherty@gmklaw.com.

Court of Appeal Upholds Constitutionality of Independent Medical Review and Court Rejects Admissibility of Privately Retained Medical-Legal Reports

Stevens

The First District Court of Appeal has upheld the constitutionality of Independent Medical Review (IMR) in the matter of Stevens v. WCAB (2015) (A143043, ADJ1526353) a published case with uncomplicated facts that directly presents the issue.

Francis Stevens had been adjudicated 100% disabled. Her doctor recommended prescriptions and home health care, which were submitted to utilization review. UR denied both the drugs and the home health aide. Stevens appealed the determination to IMR, submitting additional evidence, and the decision was affirmed. She then appealed to the WCAB, additionally raising the issue of constitutionality of the IMR process. She claimed the IMR process violated constitutional separation of powers, the constitutional provisions for review of workers’ compensation decisions and principles of due process.

The Court rejected the separation of powers argument and the challenge to review of workers’ compensation decisions because of the plenary power given to the legislature over California’s comprehensive workers’ compensation system. The due process argument similarly failed because California’s scheme for evaluating medical treatment requests is fundamentally fair and affords workers sufficient opportunities to present evidence and be heard.

The court found one aspect for the WCAB to consider further; that is whether the Board properly lacked authority to reject the IMR decision because the home health care may not include personal care under MTUS where this was the only care needed.

To explore the constitutional challenges, the Court of Appeal provided an excellent summary of workers’ compensation laws enacted over the last dozen years to address the handling of medical treatment requests and treatment disputes. By reviewing the entire framework for consideration of medical treatment requests against both state and federal constitutional mandates, the court’s decision is very well supported.

One could easily conclude that the Court of Appeal thought the California Supreme Court would review their decision. Stevens has only 10 days to get her Petition for Review filed with the Supreme Court. We expect this, and look forward to the Supreme Court’s response.

Batten

The Second District Court of Appeal has issued its published decision in the matter of Batten v. WCAB, (2015) (B260916, ADJ3781289), holding that privately obtained experts are not admissible to rebut the opinion of a panel QME or AME. The court was adamant in expressing its decision by declaring that “[t]here is no ambiguity to clarify, there is nothing to construe, there is only the obligation to follow the statutory law”.

Batten had an admitted orthopedic injury and claimed a psychiatric compensable consequence. The parties selected a panel QME in psychiatry who said there was psychiatric injury but causation was only 47% industrial. Batten obtained permission from the WCAB to obtain a report at her own expense in rebuttal.

Batten selected Dr. Gary Stanwyck, a well-known evaluator. His report found over 51% causation. He was deposed and his report was reviewed and commented on by the panel QME. At trial the WCJ admitted the report and found Dr. Stanwyck’s analysis convincing and persuasive. Psychiatric injury was found.

Defendant appealed on the grounds that Dr. Stanwyck’s report, obtained under Labor Code §4605, was inadmissible under Labor Code §4061(i).

Batten argued that the report of her consulting physician, Dr. Stanwyck, should be admissible under §4064 which states in part that “[a]ll comprehensive medical evaluations obtained by any party shall be admissible in any proceeding before the appeal board, except as provided in section 4060, 4061, 4062, 4061.1, or 4062.2.” The WCAB found that §4061(i) in fact precluded admissibility.

Section 4061(i) expressly declares that evaluations obtained other than by the procedure found in §4061.1 or §4062.2 shall not be admissible in any proceeding before the appeals board.

The WCAB pointed out that §4605, which allows an employee to obtain a report from a consulting physician at their own expense, comes under Article 2 of the Labor Code, “Medical and Hospital Treatment”. In that context, the Board found that a “consulting physician” means “a doctor who is consulted for purposes of discussing proper medical treatment, not one who is consulted for determining medical-legal issues in rebuttal to a panel QME”.

The Court of Appeal agreed but found that this reading permits the admission of an applicant’s self-procured (and paid for) report by a consulting physician only in the course of seeking medical treatment. Therefore §4061(i) permits the admission of an evaluation by a treating physician, but neither §4064 nor §4061 permits admission of a report by an expert retained solely for the purpose of rebutting a report from a panel QME or AME.

What this means for you

• Independent Medical Review is constitutional. A Supreme Court challenge is expected soon.

• Medical reports that are self-procured (and paid for) by an applicant under Labor Code §4064(d) may be used by a treating physician to formulate a medical-legal opinion, but the report may not be used to rebut a report of a panel QME or AME that the applicant deems unfavorable. The ability of an applicant to have a self-procured report concerning medical treatment entered into evidence is likely a red herring since all medical treatment determinations must go through the UR/IMR process.

Employment Law Summary for 2015

The California legislative session is over and the Governor has (once again) signed a number of employment-related bills. The following is a brief summary of some of the changes made that will affect employers.

The most important legislation that will impact all employers is the Paid Sick Leave Law which requires ALL employers to provide paid sick leave to ALL employees who have worked in California for at least 30 days. See Alerts April 14, 2015 and July 23, 2015. This law was amended in July to allow employers to measure a year by employment date, calendar year, or any 12-month period; allows for other accrual methods as long as the employee receives at least 24 hours (or three days) of sick leave by the 120th day of employment; allows for “grandfathering” of existing paid time off that meets certain criteria; and other administrative changes. The Department of Labor Standards Enforcement (DLSE) has also issued an opinion letter which states that the employee must be allowed to use at a minimum three days or 24 hours of paid sick leave and, therefore, if an employee works a 10-hour day the employee must be able to use 30 hours of paid sick leave.

Employers with 25 or more employees must allow employees time off to find, enroll or re-enroll their children in a school or with a licensed child care provider and must be allowed time off to address a “child care provider or school emergency.” The Kin Care Law which requires employers who provide sick leave to allow an employee to use up to one-half of the time to care for family members has been expanded to allow the employee to use one-half of the time for any purpose of family member as set forth in the Paid Sick Leave law.

California’s Equal Pay Act has been amended to prohibit an employer from paying less than what is paid to the opposite sex for “substantially similar work. The amendments also authorize an employee to disclose the employee’s own wages, discuss the wages of others, inquire about another employee’s wages, or aid or encourage other employees to exercise their rights under this legislation.

The Private Attorneys General Act (PAGA) has been amended to allow for a “cure period” for certain itemized wage statement violations.

An employer cannot retaliate against an employee who requests accommodation of religious beliefs, whether or not the accommodation is granted.

Piece rate workers must be paid for rest/recovery periods and other nonproductive time in addition to their piece rate earnings. This time must be paid at the average hourly rate for the workweek (and at least minimum wage). The wages and rate paid must be included on the employee’s itemized statement. Employers are being given a period during which they can pay for uncompensated or undercompensated time for the previous three years and avoid certain penalties.

Additionally, based on previously enacted legislation, the minimum wage will be increased to $10 per hour effective 1/1/16.

Finally, the Governor did veto legislation that would have precluded mandatory pre-dispute employment arbitration agreements; prohibited an employer from discriminating against job applicants based on the applicant’s status as unemployed; prohibited an employer from seeking salary information from an applicant for employment; and expanded employer coverage and family member status under the California Family Rights Act (CFRA).

- Jeanne Flaherty, Esq.

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