Most people are aware that if you suffer an injury on the job, you are covered by the California worker’s compensation system. Here are some examples of ways you may be covered that you may not be aware of: (more…)
When the COVID-19 pandemic started, insurance industry pundits were quick to speculate that there would be a massive increase in workers’ compensation claims. So far, those predictions turned out to be overblown. (more…)
Agent 86 would be proud. We’ve come a long way in just a couple of months.
While COVID-19 has brought the California Superior Courts to a near standstill since March of 2020, the Workers Compensation system has continued to function remarkably well under the circumstances. (more…)
Surprise! Remote testimony at the WCAB isn’t breaking news. It’s been around for decades.
For example, an injured worker who lived outside of California was unable to fly or drive to the Santa Ana WCAB due to industrial COPD. Concerned that the applicant was unable to obtain the benefits, I filed a petition before Judge Richard Lee (retired) for an order that the defendant arrange and pay for a video link between two “video centers” – one near the applicant’s home, and here in Orange County. Judge Lee granted the Petition, and not surprisingly, the issues in the case got resolved right after the order. That was in 1994.
Today, technology makes remote testimony as easy as reaching for a cell phone, and the WCAB has embraced new ways to swear in and observe witness testimony remotely.
In Vargas vs. Becker 2017 Cal. Wrk. Comp. PD LEXIS 276, the applicant lived in Mexico and was unable to attend the trial. The applicant instead testified at the trial through a Spanish interpreter by iPhone, using the FaceTime application.
The defendant in Vargas unsuccessfully challenged the cell phone testimony on several grounds.
First, the defendant contended that because the oath was administered remotely, it was defective. However, the WCAB found that there was no violation of Evidence Code 710 because the applicant “took the oath in the form provided by law.”
Second, the Board determined that since the defendant “had an opportunity to probe the truth of the applicant’s testimony by subjecting him to cross-examination” due process standards were met (citing Ogden Entertainment Services vs. WCAB (Von Ritzhoff) 233 Cal. App. 4th 970; 80 CCC 1).
Third, and significantly, the Board held that the WCJ’s admission of the applicant’s testimony by cell phone was proper under Labor Code sections 5708 and 5709.
Regarding section 5708, the Board stated that “hearings before the WCJ shall not be bound by the common law or statutory rules of evidence and procedure, but may inquiry into the matter, through oral testimony and records, which is best calculated to ascertain the substantial rights of the parties.”
Similarly, the Board held that section 5709 provides that “no informality in any proceeding or in any manner of taking testimony shall invalidate any order, decision, award, or rule.” The Board went on to state the section permitted admission into the record, and use as proof of any fact in dispute, of any evidence not admissible under the common law or statutory rules of evidence and procedure”.
Experience tells us that when parties can’t resolve issues, the prospect of a prompt trial and decision – with witness testimony – encourages both sides to “get serious.”
Continuances to complete a trial – perhaps over months – will not only delay benefit resolution, but also create a docket backlog, drive up frictional costs, and interfere with the prompt administration of benefits.
Due to the COVID 19 pandemic, it is unclear when witnesses will be able to testify in the courtroom. Utilizing remote testimony technology is – and long has been – the solution to keeping the system moving.
California Assembly Bill 664 would assure automatic workers compensation benefits for our first responders, so they don’t have to have to prove they contracted COVID-19 at their workplace before they get medical treatment and other benefits.
It makes sense to take care of our firefighters, police, and hospital workers on the front lines of the battle against this Coronavirus. They shouldn’t be forced to litigate whether they contracted the disease at work before they get the protections of the system.
But there is another good reason workers’ compensation stakeholders, including insurance companies, should be eager to join The Los Angeles Police Protective League and National Nurses United in support AB 664. The law would reduce the frictional costs associated with litigation because insurance company denials won’t have to fight in court.
For the same reasons, the legislature should quickly consider similar legislation to protect those who work in grocery, delivery, and other essential jobs that pose an elevated risk of Coronavirus exposure.
If you lost your job due to the COVID-19 pandemic, here are 3 things to think about:
1. Did your employer use the pandemic as an excuse to lay you off?
While some businesses are legitimately laying off workers due to the financial challenges caused by the pandemic, others may be blaming the Coronavirus pandemic when the real motive to end the employment relationship is really for a different – and even illegal – reason. For example, if you have work-related injuries or conditions, an employer may see the pandemic as an “opportunity” to lay you off and try to hide their real reasons. In California, it is illegal to discriminate against an employee based on a work injury, age, race, or gender.
2. Is there a record of medical treatment before your layoff?
In workers’ compensation, While the general rule is that you must notify your employer of a work injury or condition before your notice of layoff, there are exceptions. For example, if you have seen a doctor for your work-related injuries or conditions before the layoff, you may still have a valid claim depending on the facts of your case.
3. Did you delay a work injury claim to “save your job”?
Let’s face it – filing a work injury claim with an employer risks retaliation, even in the best of times. That’s why many workers with legitimate work injury claims decide to “tough it out” and not report their injuries. When the employer decides to lay you off, however, you are left with no job and compromised health. The sooner you determine your rights, the better chance you have at securing workers’ compensation benefits, including medical treatment, temporary disability benefits, permanent injury compensation, and future medical care.
If your workplace exposed you to the Coronavirus (COVID-19), here are the 5 things you need to know:
1. The employer cannot blame you for the exposure to the Coronavirus
California has a “no-fault” workers compensation system, which means that all you have to prove is that the exposure happened at the workplace. If a co-worker or a member of the public is infected, and then you become infected, you may have a workers’ compensation claim against your employer.
2. Exposure to infected people triggers your rights
Your workers’ compensation claim does necessarily depend on finding the person that infected you. If your work exposed you to an infected co-worker or the nature of your job exposes you to the public more than the average person, then you have probably met the criteria for a claim.
3. This Coronavirus is more than the flu!
Early data suggests that if you are exposed, your symptoms could be mild, or you may not have any symptoms are all. Doctors and scientists are racing to determine whether there may be long term effects of COVID-19 – and early finding indicates there may be, unfortunately. A professor at Northwestern University’s Feinberg School of Medicine, Khalilah Gates, states that “some people’s bodies are producing way too much of an inflammatory response that’s harming critical organs like the lungs, kidneys, and heart.” A physician at Lenox Hill Hospital in New York, Len Horovitz, expects that some infected people who had a severe reaction to COVID-19 may later experience heart arrhythmias, congestive heart failure, and inflammation of the heart muscle.
4. Document your potential claim right away
Potential exposure to COVID-19 increases with time as we live our lives outside of the workplace and this reality will be used by the employers’ insurance company to avoid responsibility for your claim. Therefore, workplace exposure should be reported to your employer immediately, preferably by filing a claim form for workers’ compensation benefits.
5. Protect your health and your potential claim
Fortunately, COVID-19 infection does not appear to be life-threatening for most people. However, since it is too early to tell if even mild cases can have long term health effects, it is better to be “safe than sorry.” Employers have workers compensation insurance for a reason – to protect their employees. If you have been exposed to COVID-19 at the workplace, the potential effects on your health can be serious. Protect your potential claim by acting as early as possible.
Insurance company lawyers are already coming up with strategies for employers so they can avoid their responsibility for COVID 19 exposure at the workplace. Disinformation abounds.
Here is what you need to know about your potential rights:
Were you exposed to COVID 19 at work?
You might be entitled to workers’ compensation benefits if your job placed you at higher risk than the general public for exposure to the virus. Those on the front line of the battle against COVID 19, doctors, nurses, lab workers, and ambulance drivers are good examples.
But what if you are not a first responder? Are you still potentially entitled to workers’ compensation protections? Potentially, yes.
Workers who are not staying home due to the Governor’s order are all potentially at higher risk for exposure to COVID 19 because of the nature of their work – grocery, transportation, and warehouse workers are all examples of workers that may be eligible for workers compensation protections.
Workers Compensation Benefits for COVID 19
For decades, I’ve been successfully litigating cases against businesses that insisted my client was an “independent contractor” instead of an employee. Why? Because the companies saved money by avoiding the cost of protections like workers’ compensation.
Over the last decade, California has seen an explosion of app-based businesses like Uber, Lyft, and DoorDash that regarded their workers as independent “gig” workers rather than employees.
In 2019, California stood firmly on the side of workers by enacting Assembly Bill 5, which seeks to protect “gig” workers with employee protections like workers’ compensation benefits if they suffer an injury.
Not surprisingly, the multi-billion dollar app-based companies went into full attack mode, claiming AB-5 would “jeopardize the freedom” of gig workers and are spending hundreds of millions of dollars to defeat the law.
Then COVID-19 came to California.
Now “gig” workers aren’t so sure about the “advantages” of being an independent contractor. Here is an excerpt of an email I recently received from a “gig” worker group:
“We’re demanding the state officials protect gig workers during the coronavirus pandemic by fully enforcing AB5 and ensuring workers have access to benefits like paid sick leave, disability, family leave and unemployment insurance.”
Of course, as an employee, workers’ compensation benefits would be available as well, thanks to AB5.
What difference a month makes.
We may not have the time to recognize every one of the workers keeping our society functioning right now, but they are out certainly out there.
COVID–19 has made us all acutely aware of the critical role our scientists, doctors, nurses, and healthcare professionals play in keeping us safer. They all provide a measure of comfort to us during a time when there are more questions than answers. We are grateful for their dedication as this Coronavirus pandemic unfolds.
But there are less obvious, but no less essential, workers out there giving it their all.
As I walked down a supermarket aisle this week, I felt the anxiousness of the customers while they searched for the items they believed would best prepare them for what may lie ahead.
It was then I saw a hero.
Her contribution to keeping our community functioning and her dedication to her work won’t be featured on CNN, and some may argue she isn’t on the front lines of the battle against this Coronavirus. But that doesn’t make her role any less important. She is part of a network of workers that is keeping society functioning while we get through this.
It was evident by the quick pace of her work and her intense focus that she understood that she was participating in something bigger than just doing her job.
She is a supermarket stock clerk, and her contribution to society during this tough time makes her a hero in my book.