Senate Bill (SB) 863 and California’s Workers’ Compensation Appeals Board

The recent case of Eun Jae Kim v. B.C.D. Tofu House, Inc. is the second case that has come down addressing SB863 changes regarding the Medical Provider Network (MPN). the first case was the Supreme Court of California’s ruling in the Valdez v. WCAB matter, determining that the provisions of SB863 relating to admissibility of non MPN reports pertains to all existing cases.

In the recent case of Eun Jae Kim v. B.C.D. Tofu House, Inc. the Workers Compensation Appeals Board held that the defendant has the available remedy of an expedited hearing on the matter of compelling an injured worker to treat within its MPN during the delay stage of a claim.

Based on the recent decisions, as well as the legislative intent of SB863 it becomes clearer than ever that exercising medical control during the start of a claim is essential in having proper management of a claim.

By Michael J. Costello, Managing Partner, Continuing Education

MPN – Expedited Hearing – Kim v Tofu House (PDF)

 

 

California AB 1309 Sports Update

ATB LAW NEWS: AB 1309 has been approved by the California Senate and Assembly. The new law would add language to Labor Code section 3600.5 saying that an athlete is temporarily in the state and not eligible to file a claim in California, if during the 365 days before his last day of work in the state, he performed less than 20% of his duty days in California.

The bill goes on to define the word “duty” as any day spent performing activities under the direction of the team. The new law would also provide a two prong test to determine if an athlete can file a cumulative trauma injury (CT claim) or an occupational disease claim. The athlete:

A. must have played for two years for a California team or worked more than 20% of his duty days in California or for a California team.

B. Must have worked for fewer than seven seasons for a team outside of California.

The new law would apply to any and all claims filed after September 15, 2013. The bill has been passed by the Senate and Assembly and the Governor has until Mid October to sign into law.

Michael J.  Pang, Managing Partner, Sports Law Practice Group

Misty Price to discuss managing litigation costs in Workers’ Compensation Defense

Misty Price will present “Improving Your Game Plan for Managing Litigation Costs in Workers’ Compensation,” Thursday, Sept. 19, from 8:30 – 10:30 a.m. at the RIMS New York Chapter Breakfast Meeting. The event will be held at The Yale Club, 50 Vanderbilt Avenue, New York, NY.

Misty Price is the Director of Analytics for ATB Law. She is responsible for planning, implementing and executing best in class methodologies to provide strategic litigation management and analytics within a Workers Compensation Defense Law firm.

Jeffrey Adelson to speak at National Workers’ Compensation Judiciary College

ATB’s Jeffrey M. Adelson, General Counsel and Managing Partner, National Practice Group has been invited to speak at the upcoming 5th Annual National Workers’ Compensation Judiciary College in Orlando, Florida.  The topic will be “A View From the Other Side of the Bench.”  Mr. Adelson will provide the Judicial College with his insights as a trial attorney as well as how the Judges behavior impacts the outcome and the duration of litigation in unexpected ways.

Keys to Successful Workers’ Comp Claim Closure

Across the entire workers’ compensation industry, many insurance companies and employers are sitting on large-tail claims that have exceeded the ultimate values forecast in prior years.  In a current article for Claims Journal, Steven C. Testan, Founder and Senior Managing Partner, ATB, and Misty Price, Director of Analytics, discuss keys for insurance companies to conduct successful initiatives to close their paid claims and drive down incurred losses.

Click here to read the full article

By Steven C. Testan, Founder and Senior Managing Partner, and Misty Price, Director of Analytics

Helpful Hints on Senate Bill (SB) 863 Change in PD Advances

Change in payment of PD advances – LC 4650(b)(2)

1. If applicant is offered a position with same employer with at least 85% of AWW on DOI or if applicant is working and earning at least 100% of AWW on DOI, then PD does not have to be advanced until a Stipulated Award, C&R, or F&A.

2. Payment of PD is retroactive to P&S date or last payment of TD, whichever is earlier

3. LC 4656(c) does not change – TD still has 104 week cap

For more information please contact Michael Pang

Helpful Hints on SB 863 changes for Vocational Rehabilitation Changes

Helpful Hints: SB 863 changes for Voc Rehab: Vocational Rehabilitation Changes
a. Supplemental Job Displacement Voucher
i. LC 4658.5 – Must give this to applicant within 60 days of termination of TTD benefits
ii. LC 4658.5(d) – voucher issued after 01/01/2013, no matter the DOI, expires after 2 years or 5 years of DOI, whichever is later
iii. No voucher if employer offers applicant regular, modified, or alternative work within 30 days of termination of TTD benefits
1. If employer does not offer job, voucher must be offered within 20 days
2. Applicant entitled to voucher if no work within 60 days of receipt of PTP/AME/PQME report finding applicant P&S with WPI.

 

Helpful Hints on using a Voc Rehab Expert

Using a Vocational Expert

i. LC 5703(j) – reports of vocational experts allowed, but they cannot testify

1. “Direct examination of a vocational witness shall not be received at trial expect upon a showing of good cause”

ii. Vocational Expert must state in his report under penalty of perjury that the contents are true and correct to the best of his/her knowledge

iii. Vocational Expert invoice has to be admitted into evidence and the invoice must also be made under penalty of perjury

iv. LC 5307.7 – Vocational Expert services subject to fee schedule to be adopted by the Administrative Director on or before 01/01/2013

Tips on California Labor Code Section 4660.1

ATB LAW:  Helpful Hint:
The California Labor Code Sections 4660.1(c)(1) and (2)  provides for no more sleep/sex/psyche add ons.
1.      Sleep disorder and sexual dysfunction caused by a physical injury CANNOT cause an increase in the rating
2.      Psyche CANNOT cause an increase in the rating UNLESS it is due to:
a.    Violent act (LC 3208.3); or
b.    Direct exposure to significant violent act (LC 3208.3); or
c.    Catastrophic injury – including but not limited to loss of a limb, paralysis, severe burn, or severe head injury
For more please contact Kathleen Brundo, Co-Managing Partner

The Coming and Going Rule: An Employer’s Responsibility for Traveling Employees

by Zarina Ajwani, Associate Attorney with Adelson, Testan, Brundo & Jimenez

Employers often ask if they are responsible for Workers’ Compensation benefits if their employees injure themselves on the way to work.

Usually (and thankfully), an employer is not liable for providing workers’ compensation benefits for injuries sustained during one’s daily commute. This is known as the “coming and going” rule. However, like most things with law, there are exceptions. The rule is not as simple as many people perceive it to be.

Knowledge is Power, and businesses have to be aware of the various exceptions to the coming and going rule. The workers’ compensation attorneys at Adelson, Testan,Brundo & Jimenez (ATB Law) work with employers to ensure that businesses are aware of these exceptions and can take action to protect themselves from potentially being liable for employee injuries while traveling.

The exceptions to the “coming and going” rule usually consider whether the travel of the employee was somehow a benefit to the employer and if it was closely related to the employee’s job duties. While there are many exceptions to the “coming and going” rule, they generally fall into four general categories:

  • The employee has no fixed place of employment and travels to multiple job sites
  • The employee injures himself while traveling to a location away from his normal job site
  • The employee is on a special assignment for the employer; and
  • Travel is a significant part of the employee’s job duties.

Category 1- Traveling to Multiple Job Sites

If a worker has to use his personal vehicle to travel to multiple job sites in one day and gets injured en route to one of these job sites, are the injuries compensable?

The 1972 decision in the case of Hinojosa v. WCAB allowed an injured farm worker to be entitled to workers’ compensation from his employer. The employee in that case used his own vehicle while traveling to various farms and jobsites. The court’s reasoning concluded that the employee’s injury is covered by Workers’ Compensation because having his personal vehicle at work is an “implied condition of employment.” This exception would apply when an employee travels to multiple work sites and does not have one specific, fixed location of employment.

Category 2- “Commercial Traveler” Rule

Another exception to the “coming and going” rule applies when an employee is away on a business trip. The general rule is that an employee is considered to be acting in the scope of his or her employment the whole time while away on business.

In the court case of IBM Corp. v. WCAB, an employee usually worked at one job site but had to travel out of state for a special business trip. His employer encouraged and gave him permission to visit out of state relatives while he was there. He had to work Monday through Friday but made a 60 mile trip to visit his relatives over the weekend. He was killed in an automobile accident when his cousin was driving him back to his hotel. The court concluded that the 60-mile trip by the employee was a normal incident of his travel in connection with his out of town temporary work assignment. The “commercial traveler” rule suggests that an employer is responsible for injuries sustained by an employee while traveling for work, even if they seem unrelated to the employee’s job duties.

Category 3- “Special Mission” Rule

Although an employer is customarily not liable for injuries sustained by an employee en route to work, an injury is compensable if during his regular commute- the employee also is performing a special errand or “mission” for his employer. Employers should think twice before asking an employee to perform a special task for them before coming into work.

The employee’s conduct is “special” if it is “extraordinary in relation to routine duties, not outside the scope of employment.” (Schreifer v. Industrial Acc. Com. (1964) 61 Cl. 2d 289). For example, in the Schreifer case, the employee was a sheriff and was scheduled to begin work at 7 p.m. on a particular day. At 1 p.m. of that day his supervisor called him at his home and instructed him to report for duty “as soon as possible.” The employee left for work in his own vehicle and was involved in a car accident.

The court reasoned that because the employee was on a special mission at the time of the accident, the employer was liable for Worker’s Compensation benefits. Coming in hours early than he normally was required to report was a “special service” to his employer.

Category 4- Traveling is part an employee’s primary job duty

When an employer requires its employee to travel in order to accomplish their job duties, the “coming and going” rule does not apply. Remember, the big question is whether an employee’s injuries occurred while they were performing their normal job duties. See Labor Code Section 3600 (a) (2) which states an injury is compensable “where at the time of the injury, the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment.”

If an employee is a pilot, bus driver, delivery truck driver, etc. their travel is well within the scope of the employee’s course of employment. For example, in Huntsinger v. Glass Containers Corporation, the employer was liable for injuries of a traveling repairman who had extensive use of a truck while visiting customers in the field. Their travel is for the sole benefit of the employer and they wouldn’t be able to do their job without driving or traveling.

It’s important to point out that a careless employee driver won’t absolve an employer from having to provide workers’ compensation benefits. In Westbooks v. WCAB, a bus driver who sustained injury as a result of nearly hitting an oncoming vehicle while recklessly driving his bus but was still entitled to receive workers’ compensation benefits. As mentioned in our previous blog post, drivers distracted by their smart phones can cost their employers thousands of dollars in Workers’ Compensation litigation.

Conclusion

While injuries of employees during travel to and from work are normally not covered by workers’ compensation, there are exceptions. An employer may be responsible to provide their employee with compensation benefits during travel, if the travel was related to and for the benefit of the employer. Of course, each case is fact specific but the attorneys at Adelson, Testan, Brundo & Jimenez are experienced with working with employers to inform them about limiting the risk of being liable for employee accidents while traveling.

Disclaimer: The information contained in this Blog is provided for informational purposes only, and should not be construed as legal advice on any subject matter. An attorney/client relationship is not formed by reading this article. The content of this Website contains general information and may not reflect current legal developments, verdicts or settlements.