The effect of the foregoing sections would apply as follows to an injury occurring on or after January 1, 1994. For example, an applicant alleges that he was injured on January 1, 1995. He informs the employer of this on the same date. The employer provides him a

In order to establish the Statute of Limitations defense, most probably the defendant will be required to show that they had advised the applicant of his/her workers’ compensation benefits rights. This should be possible if Administrative Rule §9880, or §9881, or §9882 has been complied with. Section 9880 requires the employer to provide every new employee, either at the time of hire or no later than the end of the first pay period, information concerning their workers’ compensation rights and obligations. Section 9881 requires that the employer post and keep posted in a conspicuous location frequented by employees during the hours of the workday a notice of their workers’ compensation rights and obligations. Section 9882 requires, within five working days of notice or knowledge of any injury, that the employer advise the employee of their workers’ compensation rights and obligations.

It is good form for an employer to make sure that they are complying with Labor Code §§9880, 9881 and 9882. Not only is it good business, but it is the law.

Labor Code §5402 Presumption Not Applicable Until Receipt of Treating Doctor’s Report Regarding Non-Industrial Component

pplicant Joyce Agnello claimed a con tinuous trauma dating from February 27, 1993 through February 27, 1994 to her left leg and groin. The defendant provided treatment and benefits. The applicant initially treated with the Eisenhower Hospital. She was later referred to Dr. Robert Bush.

Dr. Bush requested an MRI to the applicant’s left hip on April 26, 1994. He diagnosed avascular necrosis of the femur head and recommended a “coring” procedure. On June 3, 1994, Dr. Bush reported to the defendants and advised as to the diagnosis. Dr. Bush also requested a second opinion in that he was uncertain of the etiology of the necrotic femur.

The applicant was sent to Dr. Mirich on June 3, 1994. Dr. Mirich recommended against Dr. Bush’s coring procedure. Dr. Mirich indicated that the hip condition was not work-related. This report was faxed to the defendant on July 14, 1994. The defendant denied the applicant’s claim on July 22, 1994.

When the case was tried before Judge Robert Drakulich, the applicant’s attorney claimed that the presumption under Labor Code §5402 required the defendants to accept the hip injury. The denial had been sent out more than 90 days after the filing of a claim form.

WCJ Drakulich was of the opinion that the defendant had no duty to investigate a claim that appeared outwardly compensable. The defendants’ duty to investigate arose only when the treating physician advised that the body part requiring treatment may not be related to an industrial injury. In this case, that did not occur until June 3, 1994 when Dr. Bush reported to the defendant that he was uncertain of the etiology of the necrotic femur. In this instance, the denial was done within 90 days of this report, the denial was timely for purposes of Labor Code §5402.

A Petition for Reconsideration was filed. This was denied. A Petition for Writ of Review was filed. This was denied on October 1, 1996.

Joyce Agnello v. WCAB, 61 CCC 1181

Applicant Found to be Independent Contractor Even Though Paid on Hourly Basis

pplicant, Christopher Browne, injured his right shoulder on March 21, 1995. The applicant was a licensed contractor. He was working for another licensed contractor, Ron Stark. The applicant was working as a carpenter-foreman for Mr. Stark. He was paid weekly on an hourly basis. The applicant could quit the job or be fired at any time. The applicant did not have the right to hire or fire other employees. The applicant did provide some of his tools for work, but others were provided by Mr. Stark.

On March 28, 1995, the applicant sent a letter to Mr. Stark stating that he was cancelling the subcontract agreement which they had. The applicant subsequently filed for workers’ compensation benefits. Mr. Stark denied benefits on the basis that the applicant was an independent contractor.

The matter went to trial. WCJ James Hendy found that the applicant was an independent contractor. He had entered into an oral agreement with Mr. Stark on January 21, 1995. The agreement was further evidenced by the applicant’s letter of March 28, 1995 cancelling the subcontract agreement. Even though the applicant was being paid weekly on an hourly basis, he was found to be an independent contractor. A Petition for Reconsideration was filed by the applicant. This was denied. A Petition for Writ of Review was filed. This was denied as well.

Christopher Browne v. WCAB, 61 CCC 1187.

The applicant was performing the services as would any other employee for the defendant in this case. He was working as a carpenter-foreman. Presumably he could quit at any time. He could have also been fired at any time. However, because the applicant had a contractor’s license, and there in fact did exist a contract establishing that the applicant was working as a contractor. The WCJ found that the applicant was an independent contractor.

The result in this case makes sense. There should be no reason why an independent contractor cannot contract the type of work that was being done here. There also is no real reason why the contractor could not be paid weekly on an hourly basis if this was agreed upon. Part of the requirements for obtaining a contractor’s license is showing some knowledge as to the requirements for workers’ compensation insurance. Most probably this is why the applicant sent a letter as quickly as he did to Mr. Stark stating that the agreement was cancelled. All the letter did in this case was to establish in writing that there was in fact a subcontractors agreement. Obviously the better way for all parties in this case to have proceeded was with a written agreement to begin with. The written agreement should have spelled out the various parties’ obligations to provide workers’ compensation insurance.

Penalty Owed from Species of Benefits for Failure to Pay Insurance

pplicant Jose Vargas sus tained an in jury to his psyche. When the matter was tried, the WCJ Joseph Samuel found that the applicant was TTD. Judge Samuel also awarded attorneys’ fees pursuant to Labor Code §4651.3 in the sum of $1,225.00. The defendant paid the attorneys’ fees. However, they failed to include any interest in the payment.

On June 8, 1995, WCJ Samuel issued a Findings and Award. WCJ Samuel found that the defendant had not fully paid the award of attorneys’ fees. He imposed a 10% penalty. This was to be paid on the $9,000.00 awarded to the attorney from the applicant’s compensation award.

The applicant sought reconsideration. The applicant argued that the 10% should have been assessed against all of the fees awarded to the attorney in the case, not just the fees awarded for the recovery in the case-in-chief, $9,000.00, and the $1,225.00 which was awarded pursuant to Labor Code §4651.3.

Various Petitions for Reconsideration were filed. Ultimately, the Board ordered the 10% to be assessed against, “All attorneys’ fees awarded.” In this case, that would be against the $24,515.00.

The defendants filed a Petition for Writ of Review. The Court of Appeal even awarded attorneys’ fees finding that there was, “No reasonable basis for the Petition for Writ of Review.”

Department of Motor Vehicles v. WCAB, 61 CCC 1192.

Editor’s Note: It makes sense that the 10% would have been assessed against all attorneys’ fees awarded. The defendant was trying to argue a very limited definition of, “Species of Benefits.” It is not surprising that ultimately the WCAB, as well as the Court of Appeal, agreed that Species of Benefits included all attorneys’ fees paid.

heresa Dillon worked for the City of Moorpark (“City”) as an administrative secretary. She suffered a work-related injury to her knee and filed a workers’ compensation claim. After Dillon recovered from knee surgery, her doctor released her to work in February 1994. However, she was informed by her supervisor that she had been terminated from her employment.

In March 1994, Dillon informed City that she would like to have her job back. She told City she would be able to do her work if City made certain accommodations. Dillon was once again informed that City would not rehire her.

Dillon filed a charge of discrimination with the California Fair Employment and Housing Administration (“FEHA”). The Commission later sent a right-to-sue letter to Dillon, who then filed an action against City and two former supervisors, alleging discrimination because of her physical disability, wrongful termination, breach of implied-in-fact contract of employment and infliction of emotional distress. City filed demurrers which were overruled as to the causes of action for discrimination and wrongful termination. City then filed a Petition for Writ of Mandate.

The Court of Appeal specifically stated that they disagreed with the recent decision of the District, Cammack v. GTE Corp., 48 Cal.App.4th 207 (61 CCC 760). The Cammack court concluded that Plaintiff’s FEHA discrimination claim arising out of a work-related injury was preempted by the California Workers’ Compensation Act. The Court then went on to explain their position.

The Court stated that a judge may not rewrite a statute, neither to enlarge nor to contract it. The Court noted that a plaintiff has a right to jury trial, as well a right to claim for lost wages, pain and suffering, and punitive damages. None of these are allowed in the workers’ compensation claim.

The Court went on to examine the purpose of the FEHA laws. The potential for a larger award of monetary damages, according to the Appeal Court, means greater protection of victims’ rights. Since tort law is primarily designed to “vindicate social policy,” there was a social benefit from allowing suits under the FEHA laws.

The Appeal Court held that the injured worker may proceed with either a 132a claim or an FEHA claim. Presumably, there is nothing preventing an injured worker from pursuing both claims at the same time. The Court of Appeal then ordered the matter back to trial level for further proceedings consistent with their opinion.

City of Moorpark v. Superior Court of the County of Ventura, 61 CCC 963, Court of Appeal, Second Appellate District, Division Six.

Just Another Way to Pass the Time Away

arry Wallace, a resident of Van Nuys California, found retirement just too much to bear. After a few weeks of just wasting time, he decided to attend a Science Fair, which gave him a marvelous idea. Why not attach some weather balloons filled with Helium to his favorite lawn chair and leisurely drift over the neighborhood just taking in the sights from overhead.

He went to the local Army-Navy Surplus store and bought 40 small weather balloons and a container of Helium. After firmly anchoring his lawn chair to the ground with ropes, he inflated the balloons and attached them to the chair. He then made a sandwich, got his trusty BB gun so that he could burst the balloons for a gradual descent, and seated himself comfortably in his chair,

He cut the rope and expected to gently float upward and experience a gentle ride over the city. Instead, he was immediately launched into space at breakneck speed. His chair leveled off at 11,000 feet.

At that height, he was afraid to shoot the balloons, and was forced to simply sit and evaluate his predicament while he drifted into the Los Angeles International Airport flight pattern. He was soon spotted by a Delta Airline pilot, who radioed to the tower, “You’re never gonna believe this, but there’s a guy floating around up here in a lawn chair with a gun across his lap!”

At that point, the Airport Security team intercepted Mr. Wallace with a helicopter and managed to bring the lawn chair down over the Pacific Ocean. Upon being rescued, Mr. Wallace was immediately arrested for violating commercial airspace. When asked why he did this, he answered, “Well, a man can’t just sit around!”