Audiologists to Become QMEs

Let’s say you want to get a qualified medical evaluator to take a look at the applicant’s hearing and determine if there is any basis for apportionment or to argue AOE/COE.  It’s simple, you would just request a panel in with the specialty of audiology, right?  What’s that you say?  There’s no such specialty… not even at the QME database on the Medical Unit’s website?

Well, it looks like there may be a change to that soon enough.  Assembly Bill 1454, introduced by Assembly Member Solorio (D-69th District), unanimously passed through the Committee on Insurance on March 28, 2012 and is on its way back to the Committee on Appropriations.

Some of my readers may recall that Assemblyman Solorio has been mentioned on this blog before, having exerted his influenced in an effort to see the temporary disability cap raised to 240 weeks.

We’ll have to keep our collective eyes on this one – before we know it, we may be fighting off prescriptions for blue-tooth devices and trying to figure out if the new crop of audiologists has an applicant bias.

Is a Hairstylist an Independent Contractor? WCAB Says “Yes.”

Yesterday’s post covered proposed legislation to amend the definition of an independent contractor, repealing current Labor Code section 3353 and providing, instead, a list of factors to consider in determining whether a worker is an independent contractor or an employee (determining, also, if the principal must provide workers’ compensation insurance).

A recent writ denied case addressed this very issue.  In Margarita Aparicio v. Workers’ Compensation Appeals Board (2012), the WCAB had denied applicant’s petition for reconsideration of the workers’ compensation Judge’s ruling that she was an independent contractor and not an employee.  Applicant worked as a hairstylist at Unisex Barber, and claimed she had sustained a plethora of injuries during her 20 months as a hairstylist with defendant.

Defendant denied the claim on the grounds that applicant was an independent contractor:  she was not supervised, set her own hours, and provided her own tools.  Apparently, at the time that the professional relationship began between applicant and defendant, which applicant no-doubt, at least for the purposes of her claim, considered the “time of hire,” applicant had told defendant that she had a cosmetology license, although one was never actually produced.

Applicant failed to appear at a hearing and the WCJ issued a finding and award, finding that applicant was an independent contractor.  The fact that some supplies were provided to applicant during her work and that defendant had insured some of its employees did not seem to sway to the WCJ to a finding in the non-appearing applicant’s favor.

The testimony from the defendant at the hearing showed a typical hairstylist-hair salon relationship.  In some arrangements a barber or hairstylist will pay rent and pocket all the money paid by his/her clients, while in this case the hairstylist kept a portion of the money paid by her clients and was provided with a place to work and some supplies.

Under AB2373, perhaps the analysis would have been different?  After all, some of the factors in AB2373 would have worked in applicant’s favor:  she (at least by the time of her claim) believed she had entered into an employee-employer relationship, the services were integrated into the principal’s business operations, and several other factors might make it harder for a workers’ compensation Judge to find for the defense.

A written agreement may be of some use in such cases, to avoid future misunderstanding.  Perhaps requiring the contractor to purchase workers’ compensation insurance for him or herself would not be a bad idea either.

New Legislation to Define “independent contractor”?

What is an independent contractor?  Presently, Labor Code section 3353 defines an independent contractor as “any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which result is accomplished.”  Independent contractors are a different animal than employees – and workers’ compensation insurance isn’t necessary for independent contractors.

Assembly member Chris Norby (R-72^nd Assembly District) introduced Assembly Bill 2373, which would provide a detailed list of factors to consider in determining if a person is an independent contractor or an employee.

Here is the list of factors currently proposed:

“(a)  The extent to which the principal controls and directs the manner and means of rendering the service.

(b)  The extent to which the principal provides training to the person rendering the service.

(c)  Whether the service rendered is integrated into the principal’s business operations.

(d)  The method by which the principal provides recompense.

(e)  Whether a continuing relationship exists between the principal and person rendering the service.

(f)  Whether the principal established the hours of work of the person rendering the service.

(g)  The amount of time required for the person to rendered (sic) the service.

(h) Whether the principal or person rendering the service provides the instrumentalities and facilities necessary for rendering the service.

(i)  The extend (sic) to which the person rendering the service is required to report to the principal.

(j)  The extent to which the person rendering the service has unreimbursed business expenses or investments in the business of the principal.

(k)  Whether the person rendering the service is engaged in a separate occupation or business or makes his or her service available to the general public.

(l)  Whether this kind of service is usually rendered under the direction of the principal without supervision.

(m)  Whether the parties believe they are establishing an employer-employee relationship.

(n)  The length of time for rendering the service.

(o) The extent to which the service pertains to the regular business of the principal.

(p)  The skill required to render the service.

(q) Whether the principal or person rendering the service have a right to terminate their relationship.”

This bill would provide a lot more for attorneys to work with when the question of worker status comes to litigation.  Perhaps the question of workers’ compensation should factor in as well – does the worker have insurance for him or herself?  Does the principal cover the worker?

One thing is certain – clear guidelines are very necessary in this regard.  One could hire a “contractor” to do work, and suddenly the contractor is an employee and the principal is suddenly in breach of the law by failing to insure his or her “employee.”

Opt Out of Workers’ Comp? Not in California!

Maybe this whole workers’ compensation thing isn’t worth it.  After all, the purpose of the workers’ compensation system was a trade-off: employers get caps on their liability, employees get quicker access to benefits, and the variable of fault is no longer part of the equation.  So, slip on a banana peel at the supermarket where you work, and you get benefits, unless you were shopping on your day off, then you’re just a klutz.

But what if you’re an employer and you’re fed up with this ridiculous system!  You’re tired of applicant’s attorneys demonizing you to your employees; you’re tired of paying insurance companies or defense lawyers or being audited again and again by the state just for self-insuring?  What if you could just opt out?

What if an employer could opt out of the workers’ compensation system?

That’s not the thinking in California, but it is in Oklahoma.  Having passed the House and the Senate of the state where hard work still conquers all, the law now awaits calibration between the two houses of the state Legislature before going to the Governor’s desk.  Texas already has an opt-out process for workers’ compensation, but in typical Texas fashion, was the only state to do so (until now).

One of the stated purposes of House Bill 2155 is to “[a]ssist the state in attracting and retaining business, thereby contributing to the overall economic development and well-being of its citizens.”

But where would Oklahoma, as a state, attract business from … except other states?  Perhaps other states like … California?

Sacramento – the rest of the Union is out to poach California businesses.  Please don’t make it easy for them to do so by driving every employer off.

Visiting California for the Workers’ Comp – Part 3 of 3

So by this point, you’ve read Parts 1 and 2 of this article.  You’ve laughed, you’ve cried, and you’ve decided not to give up on doing business in or with California, and also to stop sending your fragile blogger e-mails accusing me of actively trying to depress you.

So what can you, the employer, insurer, or the self-insured employer do to keep your liability down when you send your employees into California?  For starters, either purchase a California workers’ compensation insurance policy or make sure your current policy covers employees when they are out of the state.  Next, ask your attorney to secure a certificate from your state regarding its workers’ compensation reciprocity laws with California.

And what do you do if your state doesn’t have reciprocity or similar laws?  Lobby, and get them passed.  In 2011, Florida adopted House Bill 723, establishing reciprocity laws.  Michigan followed suit later that year with House Bill 5002.  If your state does not have a reciprocity law, perhaps some lobbying dollars spent now can save workers’ compensation dollars in the future.

Kansas has taken another approach.  A recent arbitration ruling in a case between the Kansas City Chiefs and the NFL Players Association held that Chiefs players must bring their workers’ compensation claims in Kansas, ordering the players to abandon their California cases.

The basis of this ruling appears to be the contract terms between the players and the team.  From noted sports-law blogger Daniel J. Friedman, of LockoutLowdown:

“Article 41 of the newly ratified NFL CBA encompasses the NFL and NFLPA’s ‘Worker Compensation’ plan.  As part of this agreement, under Art. 41, Sec. 5 states ‘The parties shall immediately establish a joint committee that will make good faith efforts to negotiate a possible California Workers’ compensation alternative dispute resolution program on a trial basis (i.e., carve out).’  However, Sec. 6 Reservation of Rights states ‘The parties shall retain the positions they held prior to this Agreement with respect to all existing litigation and arbitration involving workers’ compensation issues, including without limitation, the federal and state courses in California (Titans), Illinois (Bears) and New York (Mawae, Harvey) regarding offset issues or choice of law and forum provisions contained in NFL Player Contracts, and nothing in this Article shall affect positions taken in any such pending litigation.’    I do not think that the carve out provision has been agreed to yet but the resolution in this case likely tilts the balance of power back to the League’s favor as they continue to make ‘good faith efforts’ in coming to an agreement related to carve-out.  I would not be surprised if the players in this situation appeal.  However, because this was an arbitration, it will be very difficult to have the ruling overturned unless they can prove their was an abuse of process.”

But, given the fact that California regards contract terms waiving access to California’s workers’ compensation system to be unenforceable, it remains to be seen how effective this approach will prove.

The State of Oregon has put together a list of the reciprocity laws of various states.  You can review it here.  Your humble blogger does gently suggest you verify for yourself any citations found on this website – I certainly have not done so and can not make any claims as to its accuracy or current status.

So, will this fearless blogger, cumulatively traumatized by California’s workers’ compensation system, be seeing you in the Golden State anytime soon?