Keeping Business In Business.
This page is a general question and answer page.  No specific legal advice is dispensed or offered here.  No attorney client relationship, advice or assistance may be established or provided in California without a written agreement with and between me, my firm and our client(s) to include identification of the scope of representation.  

Please contact me if you wish to retain my or the firm's workers' compensation, employment or business defense advice.

                                                                                                                                                                                                                                                       
Temporary Partial Disability After Job Offer - January 30, 2012 

Q:  The employer is able to provide temporary modified work at a pay rate that is less than the claimant’s Average Weekly Wages (AWW) and the claimant doesn’t bother to show up for work.  Would the Third Party Administrator (TPA) have to pay wage loss for the difference in wages or does the TPA simply pay $0 because the claimant did not show up for work?

A:  Unless an employer is willing to offer a medically consistent position of modified/alternate/regular work during the period of Temporary Total Disability (TTD) without wage loss, applicant is Temporary Partially Disabled (TPD) which results in a wage loss calculation.  If applicant refuses either a full-pay or partial pay return to work which is medically appropriate it extinguishes the liability up to the amounts which would otherwise have been paid but for the refusal.

 

In this hypothetical my opinion is that TPD is owed as the refused offer would have extinguished only a portion of his average weekly wage loss, not the entire amount.  The differential therefore owed is AWW minus Modified Work Wages (MWW) X (2 divided by 3).


                                                                   


 
Q&A Holiday Pay - January 13, 2012

Q:  Your employees are all hourly, and some worked on Sunday January 1st and others worked on Monday January 2nd.  However, on 
January 2nd all salaried employees took the day off as their holiday.  How does an employer handle the pay for the two hourly employees that worked on January 2nd since they had to be at work on Monday January 2nd can they be paid the holiday rate?  

A:  While California employers are not obligated to offer paid holidays to employees, if an employer chooses to do so and the nonexempt employee works on a paid holiday, it should either grant the employee another day off with pay or pay holiday wages, plus all hours worked on the day designated as a holiday.  This may include overtime as well for any time worked over 8 hours in a day or 40 hours in a week.

                                                         
Q&A  Elected Officials - November 22, 2011

Q:  Is a California City Council member an employee covered under workers' compensation?  If so where is that found in the Labor Code?

A:  Great question.  Yes, all elected and appointed paid public officers are covered by Labor Code section 3351(b), which is referenced below in its entirety:

 

§ 3351.  "Employee"

 

"Employee" means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes:

 

 (a) Aliens and minors.

 

 (b) All elected and appointed paid public officers.

 

 (c) All officers and members of boards of directors of quasi-public or private corporations while rendering actual service for the corporations for pay; provided that, where the officers and directors of the private corporation are the sole shareholders thereof, the corporation and the officers and directors shall come under the compensation provisions of this division only by election as provided in subdivision (a) of Section 4151.

 

 (d) Except as provided in subdivision (h) of Section 3352, any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant.

 

 (e) All persons incarcerated in a state penal or correctional institution while engaged in assigned work or employment as defined in paragraph (1) of subdivision (a) of Section 10021 of Title 8 of the California Code of Regulations, or engaged in work performed under contract.

 

 (f) All working members of a partnership or limited liability company receiving wages irrespective of profits from the partnership or limited liability company; provided that where the working members of the partnership or limited liability company are general partners or managers, the partnership or limited liability company and the partners or managers shall come under the compensation provisions of this division only by election as provided in subdivision (a) of Section 4151. If a private corporation is a general partner or manager, "working members of a partnership or limited liability company "shall include the corporation and the officers and directors of the corporation, provided that the officers and directors are the sole shareholders of the corporation. If a limited liability company is a partner or member, "working members of the partnership or limited liability company" shall include the managers of the limited liability company.

 

 (g) For the purposes of subdivisions (c) and (f), the persons holding the power to revoke a trust as to shares of a private corporation or as to general partnership or limited liability company interests held in the trust, shall be deemed to be the shareholders of the private corporation, or the general partners of the partnership, or the managers of the limited liability company.


                                                                                                                                                                                                                                                       

 
Q&A   California Workers' Compensation Defense Objections to Trial By The Employer

Q: Is there any specific California workers’ compensation statute or regulation the employer can use as basis/support, in order to ask the insurance carrier not to settle the case but to take to trial?

Typically the employer cannot and in most cases should not direct an insurance company to take any matter to trial, as insurance policies typically cede these decisions to the insurance company itself as a matter of contract law. 

There is some legal support in California workers’ compensation laws and statutes for workers’ compensation cases only allowing for an employer objection to any settlement.  If successful in opposing a settlement the employer can leave what typically is the only option left, which of course is trial. 

Labor code section 3761(b) requires the employer to notify the insurer of any facts which would tend to disprove the claim “promptly.” If such notice is provided the employer can make a written request to the WCAB that “no compensation is payable to an employee” unless there is proof of service on the employer no less than 15 days prior to WCAB approval of a compromise and release setting a time and place for hearing at which the agreement is to be approved.   The employer can then appear at the hearing and state its facts, evidence and arguments against applicant’s right(s) to benefits or settlement.  Failure to provide the notice does not prevent the WCAB from approving the agreement but the board shall order 5813 expenses if such failure to notify is proved.

In order to preserve its rights the employer must file a declaration and petition pursuant to Title 8 California Code of Regulations sections 10450 and 10875, so the protections are not automatic.  If granted a hearing the employer can appear and object to any settlement, though there is no guarantee of WCAB disapproval.  The important approach would be to fully, fairly and completely document any evidence militating against a right to benefits at that hearing if properly notified by the insurance company and granted by the WCAB in a timely manner.

The best approach when it comes to influencing a California workers’ compensation defense trial decision is to talk with the insurance company and examiner citing Labor Code section 3761 and 3762 (collectively termed “The Employer Bill of Rights”).  Too often I see the applicants’ and plaintiffs’ bars united in their representation of California’s injured employees and the defense divided.  This is never ideal.  Personally I  have not encountered an insurance examiner or company not dedicated to fighting legitimate and documented insurance fraud, but the insurance companies know how high the legal standard is for asserting such defenses, the hazards and risks of trial as well as the realities of the system.

I encourage cooperation on the defense. However when principles are involved which require objection to settlements by employers the law provides this support in California workers’ compensation.
Q: Is there any specific California workers’ compensation statute or regulation the employer can use as basis/support, in order to ask the insurance carrier not to settle the case but to take to trial?

Typically the employer cannot and in most cases should not direct an insurance company to take any matter to trial, as insurance policies typically cede these decisions to the insurance company itself as a matter of contract law. 

There is some legal support in California workers’ compensation laws and statutes for workers’ compensation cases only allowing for an employer objection to any settlement.  If successful in opposing a settlement the employer can leave what typically is the only option left, which of course is trial. 

Labor code section 3761(b) requires the employer to notify the insurer of any facts which would tend to disprove the claim “promptly.” If such notice is provided the employer can make a written request to the WCAB that “no compensation is payable to an employee” unless there is proof of service on the employer no less than 15 days prior to WCAB approval of a compromise and release setting a time and place for hearing at which the agreement is to be approved.   The employer can then appear at the hearing and state its facts, evidence and arguments against applicant’s right(s) to benefits or settlement.  Failure to provide the notice does not prevent the WCAB from approving the agreement but the board shall order 5813 expenses if such failure to notify is proved.

In order to preserve its rights the employer must file a declaration and petition pursuant to Title 8 California Code of Regulations sections 10450 and 10875, so the protections are not automatic.  If granted a hearing the employer can appear and object to any settlement, though there is no guarantee of WCAB disapproval.  The important approach would be to fully, fairly and completely document any evidence militating against a right to benefits at that hearing if properly notified by the insurance company and granted by the WCAB in a timely manner.

The best approach when it comes to influencing a California workers’ compensation defense trial decision is to talk with the insurance company and examiner citing Labor Code section 3761 and 3762 (collectively termed “The Employer Bill of Rights”).  Too often I see the applicants’ and plaintiffs’ bars united in their representation of California’s injured employees and the defense divided.  This is never ideal.  Personally I  have not encountered an insurance examiner or company not dedicated to fighting legitimate and documented insurance fraud, but the insurance companies know how high the legal standard is for asserting such defenses, the hazards and risks of trial as well as the realities of the system.

I encourage cooperation on the defense. However when principles are involved which require objection to settlements by employers the law provides this support in California workers’ compensation.

Q:  Is there any specific California workers’ compensation statute or regulation the employer can use as basis/support, in order to ask the insurance carrier not to settle the case but to take to trial?

 

Typically the employer cannot and in most cases should not direct an insurance company to take any matter to trial, as insurance policies typically cede these decisions to the insurance company itself as a matter of contract law.

 

There is some legal support in California workers’ compensation laws and statutes for workers’ compensation cases only allowing for an employer objection to any settlement. If successful in opposing a settlement the employer can leave what typically is the only option left, which of course is trial.

 

Labor code section 3761(b) requires the employer to notify the insurer of any facts which would tend to disprove the claim “promptly.” If such notice is provided the employer can make a written request to the WCAB that “no compensation is payable to an employee” unless there is proof of service on the employer no less than 15 days prior to WCAB approval of a compromise and release setting a time and place for hearing at which the agreement is to be approved.   The employer can then appear at the hearing and state its facts, evidence and arguments against applicant’s right(s) to benefits or settlement. Failure to provide the notice does not prevent the WCAB from approving the agreement but the board shall order 5813 expenses if such failure to notify is proved.

 

In order to preserve its rights the employer must file a declaration and petition pursuant to Title 8 California Code of Regulations sections 10450 and 10875, so the protections are not automatic. If granted a hearing the employer can appear and object to any settlement, though there is no guarantee of WCAB disapproval. The important approach would be to fully, fairly and completely document any evidence militating against a right to benefits at that hearing if properly notified by the insurance company and granted by the WCAB in a timely manner.

 

The best approach when it comes to influencing a California workers’ compensation defense trial decision is to talk with the insurance company and examiner citing Labor Code section 3761 and 3762 (collectively termed “The Employer Bill of Rights”). Too often I see the applicants’ and plaintiffs’ bars united in their representation of California’s injured employees and the defense divided. This is never ideal. Personally I have not encountered an insurance examiner or company not dedicated to fighting legitimate and documented insurance fraud, but the insurance companies know how high the legal standard is for asserting such defenses, the hazards and risks of trial as well as the realities of the system.

 

I encourage cooperation on the defense. However when principles are involved which require objection to settlements by employers the law provides this support in California workers’ compensation.

Q&A HIPPA Violations


By David H. Parker


Q: Our safety bulletin includes a picture of an injured employee’s x-ray. In your opinion are we violating any HIPPA regulations?


A: In my opinion it is a violation of HIPPA to release a photograph of an individual’s injuries to anyone without the individual’s permission. Unfortunately my opinion is a photograph of a medical condition is considered protected health information (sometimes referred to in California as “PHI”) which cannot be exposed or disseminated to anyone without legally compliant medical and HIPPA release(s).

I would typically recommend to PKNW's clients that the photograph be removed from the notice and any copies disseminated be collected with no reference at all to the individual and/or his or her medical information contained therein.