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Additional congratulations

Goldman, Magdalin & Krikes, LLP would like to congratulate:

Charles Amadi - Los Angeles Office
camadi@gmklaw.com (818) 755-0444

on having received notification last week from the California State Bar that he has passed the Workers’ Compensation Specialization Exam and has completed the first step to becoming a Workers’ Compensation Specialist.

Charles joins Kimberley Gaskill, Jessica Tyndall, Anita Abd and Brian Harrison as recently passing the Workers’ Compensation Specialization Exam.

All Partners of GMK whose primary practice is Workers’ Compensation Law are Certified Specialists in Workers’ Compensation. Additionally, many GMK Associate Attorneys are also Certified Specialist in Workers’ Compensation.

Congratulations!

Goldman, Magdalin & Krikes, LLP would like to congratulate:

Kimberley Gaskill - Bay Area Office
kgaskill@gmklaw.com (650) 401-6460

Jessica Tyndall - Central Coast Office
jtyndall@gmklaw.com (805) 548-8727

Anita Abd - Central Coast Office
aabd@gmklaw.com (805) 548-8727

Brian Harrison - Ventura County Office
bharrison@gmklaw.com (805) 777-7008

on having received notification from the California State Bar that they have passed the Workers’ Compensation Specialization Exam and have completed the first step to becoming a Workers’ Compensation Specialist.

GMK places emphasis on continuing education for our attorneys in the field of Workers’ Compensation. Currently, GMK has 28 Attorneys who are Workers’ Compensation Specialists in the firm.

County of San Diego (Pike) v. WCAB

On March 6, 2018, the California Court of Appeal filed its opinion in the case of County of San Diego (Pike) v. WCAB. The court published its decision.

Summary of County of San Diego v. Workers' Comp. Appeals Bd.

The Applicant, Kyle Pike, was employed as a deputy sheriff by the County of San Diego, when he was injured on July 31, 2010. In May 2011, the parties stipulated to a 12% permanent disability award. On May 26, 2015, Mr. Pike filed a petition to reopen for new and further disability. Pursuant to Labor Code section 4850, Mr. Pike requested salary continuation benefits in addition to temporary total disability benefits pursuant to Labor Code section 4653. By July 31, 2015, five years from the date of injury, the County exhausted all of the section 4850 and TTD benefits owed to Mr. Pike. However, Mr. Pike requested additional 4850 and TTD benefits after July 31, 2015. The County denied the request for benefits, citing Labor Code section 4656, which limits an Applicant’s entitlement to section 4850 benefits and TTD benefits to a period of five years from the date of injury.

A WCJ determined that the WCAB has “continuing jurisdiction to award temporary total disability benefits beyond five years” because the applicant filed a timely petition to reopen, and TTD benefits commenced prior to five years from the date of injury. As such, the WCJ awarded Mr. Pike the benefits requested. The County filed a petition for reconsideration. In a split decision by the Board panel, the WCJ’s decision was affirmed. The County filed a petition for review with the 4th DCA, requesting that the court annul the Board’s order.

The 4th DCA disagreed with the Board, stating that the WCJ’s interpretation of section 4656 is “not tenable”, and that the language of the statute is clear and unambiguous. [1] The court stated that the “plain language of section 4656, subdivision (c)(2), supports the conclusion that the board may not award temporary disability payments for any period of disability occurring beyond five years from the date of the workers injury.” [2] The court pointed out that there is both a maximum of 104 weeks of payments, and a limitation of five years within which to make the payments. Furthermore, the court found that the legislative history, as well as case law interpreting the former section 4656, is consistent with the statutory text. The Board’s order denying the County’s petition for reconsideration was annulled, and the matter was remanded with directions to the Board to grant the petition for reconsideration consistent with the appellate court’s findings.

What This Means for You:

No matter how complex the facts of your case are, and no matter what arguments made by the applicants’ attorneys, unless it is overturned by the California Supreme Court, your liability for TTD benefits is 104 weeks in a five-year period of time and no more than that.

Client Presentations

GMK is continuing our personalized client training presentations held in our clients’ offices. We are now scheduling the remainder of our 2018 presentations for June through November.

Our training sessions are customized for our clients’ preferences with most presentations lasting 1 to 3 hours. Continuing education credits are available. Numerous topics have been prepared for training depending on your specific needs. The GMK topics list can be viewed here. GMK can also tailor a presentation on the topics of your choice. These training sessions provide face-to-face training with GMK attorneys. Get to know your GMK attorneys in person.

We have confirmed presentations for many of you already. But, if you have not yet signed up for GMK training, please do so now. Send an e-mail to Joy Tolladay jtolladay@gmklaw.com to schedule your personalized training with GMK.

Summary of The People ex rel. Mahmoud Alzayat v. Gerald Hebb et al.

On December 19, 2017, the California Court of Appeal filed its opinion in the case of The People ex rel. Mahmoud Alzayat v. Gerald Hebb et al. The court published its decision, meaning that it is now binding precedent and may be cited and relied upon by other courts and parties.

Summary of The People ex rel. Mahmoud Alzayat v. Gerald Hebb et al.

Plaintiff Mahmoud Alzayat, on behalf of the People of the State of California, filed a qui tam action against his employer, Sunline Transit Agency, and his supervisor, Gerald Hebb. Alzayat alleged defendants violated the Insurance Frauds Prevention Act (IFPA). (Ins. Code § 1871 et seq.)

Alzayat’s job was to maintain bus stop infrastructure. He had previously suffered an industrial injury to his lumbar spine and was released back to work. On the specific date at issue, Alzayat needed concrete to anchor posts at a bus stop. To avoid reinjuring his back, Alzayat asked Hebb for permission to break down a 90-pound bag of concrete into lighter bags or to have another employee help him lift the 90-pound bag. Hebb refused his requests and ordered Alzayat to lift the 90-pound bag. Alzayat immediately felt pain in his lumbar spine and partially collapsed as he dropped the bag. Hebb asked Alzayat why he had dropped the bag and Alzayat complained that he had injured his back.

The following day, Alzayat filled out a workers’ compensation claim form. Hebb also filled out a report that Sunline used in making compensability decisions. In his report and subsequent deposition, Hebb denied both his conversation with Alzayat and that he witnessed Alzayat injure himself. Sunline, in relying upon Hebb’s representations, denied Alzayat’s claim.

Alzayat alleged that his supervisor’s false statements in his report and later deposition constituted a violation of Penal Code section 550 and formed predicate offenses for liability under the IFPA. Alzayat argued that his supervisor’s statements were material because a reasonable insurance carrier would consider them in its determination of whether to accept or deny a claim. Defendants argued that Sunline, a self-insured company, is not considered “insurance” for purposes of the IFPA. The Superior Court agreed and entered judgment for the defendants. The Court of Appeal reversed and held that self-insured risk pools are subject to the IFPA.

On remand, defendants argued that Alzayat’s lawsuit was barred based on the litigation privilege as Hebb’s statements were made in the context of a workers’ compensation proceeding. In addition, defendants argued that Alzayat’s lawsuit was barred by the exclusivity rule. Alzayat argued that the purpose of the IFPA was to combat workers’ compensation fraud. Accordingly, Alzayat argued that to permit the litigation privilege to immunize communications would frustrate the purpose of the IFPA. Alzayat also argued that the exclusivity rule did not bar his action under the IFPA. The Superior Court again agreed with defendants and dismissed Alzayat’s lawsuit.

Alzayat again appealed. On appeal, the Court of Appeal reversed and found in favor of Alzayat and held that the IFPA is an exception to the litigation privilege. To hold otherwise would potentially render the IFPA inoperable. The court recognized that a large amount of fraud under the IFPA will occur during or in contemplation of litigation. The court also held that the exclusivity rule does not apply to claims under the IFPA. The court found that civil actions arising from fraud and made unlawful by the Penal Code are allowable, notwithstanding the exclusivity rule. Moreover, the exclusivity rule was found to not apply as this case was brought as a qui tam lawsuit.

What is a “qui tam” action?

“Qui tam” is a phrase most commonly associated with whistleblower actions. In a qui tam action, the government is the real party in interest. In a nutshell, the action allows a private citizen to initiate an enforcement action against wrongdoers who cause injury to the public at large.

Penal Code section 550 and the IFPA

The IFPA was enacted to prevent workers’ compensation fraud.

Penal Code section 550 criminalizes making false claims for compensation or benefits including statements in support of or in opposition to a claim for benefits. An employer’s false report submitted in opposition to a claim for workers’ compensation benefits falls within the scope of Penal Code section 550.

What This Means for You

This case creates a new avenue of litigation for workers’ compensation applicant attorneys and plaintiffs’ civil litigation attorneys to seek substantial civil remedies arising out of normal workers’ compensation claims. Because of the potential monetary recovery available it would not be surprising to now see the expansion of litigation against employers whose employees believe that they were defrauded by employers that deny the compensability of their claims.

Consequently it is paramount that employers, whether insured or self-insured, their investigators and their claims administrators be extremely careful to make sure that investigations of work related injury claims are conducted fairly and without bias against employees making the claim. Although it was not an element of the facts in the Alzayat case, to prevent employer-side fraud it is perhaps wise for employers to consider whether or not to offer incentives to their management for not having work related injury claims although safety measures should always be encouraged and enforced.

Please contact GMK if you have any questions or need any guidance with regard to this new case.

Arin Scapa, Esq.

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