The Los Angeles County District Attorney’s Office recently announced the conviction of Emmett Timothy Kennedy III, a southern California business owner who pleaded no contest to three felony counts, including insurance fraud. He has now paid the full restitution amount of $321,350.00. Mr. Kennedy was undone when one of his employees in a window-washing business complained to the Maintenance Cooperation Trust Fund that he and other employees were only being paid in cash.
This is another example of the underground economy – and in such a dangerous industry too! Can you imagine what would have happened if one of the window-washers would have fallen off, especially with no insurance to cover the loss and assist the employee’s family?
Your humble blogger has commented on this several times – it’s not worth it! Buy the insurance!
However, that being said, it’s important to remember that there is also plenty of workers’ compensation fraud from the employee side. Your humble blogger looks forward to seeing the Los Angeles District Attorney’s office show its zeal and commitment to prosecuting employee-transgressors as well.
By now we’re all familiar with the going and coming rule, and also its exception of the “commercial traveler.” A commercial traveler is one that is on a trip for business purposes (think conferences, special projects, recruiting events) and is thereby taken away from hearth and home, sometimes for days at a time. When an employee is a commercial traveler (not to be confused with a Travelers commercial) it is generally considered that he or she is always on the clock, and therefore the going and coming rule does not apply.
Enter the case of Antonio Parvool v. Tony’s Food Service (coincidentally insured by Travelers). Mr. Parvool, the poor, unfortunate man, had the difficult job of going to Hawaii to assist in providing catering services to movie production crews. While he was not handing out whole-wheat extra-thin bagels to movie stars, he got to enjoy the surrounding area, including the employer-provided hotel and swimming pool.
Despite your humble blogger’s valiant efforts, workers’ compensation Judges in California are reluctant to grant change-of-venue motions to Hawaii – some nonsense about state jurisdiction. Rest assured, when your humble blogger is finally in charge, workers’ compensation trials will be held on the beaches of Hawaii in casual attire, and applicants will immediately realize there is more to life than hounding an employer over a paper cut. Objections will be made with Mai-Tai in hand, and all permanent disability indemnity will be paid in macadamia nuts. Someday…
Having spent too much time around action movie stars and their stunt doubles, applicant decided to dive head-first into the shallow portion of the hotel swimming pool, and sustained injuries to his neck, upper extremities, lower extremities, psyche, and digestive system. Defendant pointed out that applicant wasn’t on the clock when he took his dive, but applicant’s counsel responded by pointing out that the commercial traveler rule applied.
Persuaded by defendant’s arguments, the workers’ compensation Judge held that Labor Code section 3600(a)(9) rendered this injury non-industrial, as applicant’s injury arose “out of voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee’s work-related duties.”
Applicant petitioned the Workers’ Compensation Appeals Board for reconsideration and, having rubbed the lamp in just the right way, the applicant’s wish was granted. The WCAB reasoned that section 3600(a)(9) does not apply to the commercial traveler exception, but rather to routine injuries. So, if a hotel worker were to take a lunch break and go for a swim in the hotel pool, sustaining the exact same injury as the unfortunate Mr. Pavool, the injury would not be compensable under section 3600(a)(9).
In its reasoning, the WCAB points out that it is unreasonable to expect an employee to remain cooped up in a hotel room. Even this, we have seen, may not spare a traveling employee an injury.
So, if you’re sending your employee on a trip, see if you can find a hotel with a swimming pool that only has deep ends!
Do the rules matter in California workers’ compensation? Do we have to do the panel dance or can we just cut to the chase?
Listen, dear readers, to the story of Maxine Brown Virgil v. Lunch Stop, Inc., a panel decision recently issued and freshly blogged-upon.
Ms. Virgil and her employer’s insurance company were locked in a battle of wills and began the ritual with which we are all far too familiar – requesting a panel. The panel was issued, and defendant struck one name from the panel. While applicant considered the other two names, she discovered that one of the QMEs could not provide an appointment within 60 days.
That being the case, applicant wrote to the medical director requesting a new panel under California Code of Regulations section 31.5(a)(2). What’s that you ask? Did applicant bother to strike a name from the panel? No – after all, what was the point when applicant was entitled to a new panel.
Well, when applicant failed to strike a name from the panel, defendant chose the QME that applicant didn’t want, and scheduled an appointment for her. When the matter was brought before the workers’ compensation Judge, the Judge ruled that even though applicant attempted to schedule an appointment with one of the QMEs, Labor Code section 4062.2 requires that applicant perform a “strike” and communicate that strike to opposing counsel.
Therefore, the WCJ issued an order instructing applicant to attend the appointment set by defendant for a QME evaluation.
Now, the caption on the panel decision reads “Opinion and Order Granting Petition for Removal.” But, as the opinion states, the panel of commissioners “grant the petition only for the purpose of deleting the date of the appointment with [defendant’s selected QME], which has now passed.” (Emphasis added.)
In other words, applicant has to communicate a strike, even though, as we’ve seen, that communication does not have to wait until ten days have passed.
What do you think, dear readers? If the defendant has already communicated its strike, should applicant still have to make a strike of his or her own? Or can the strike be made by implication in scheduling an appointment with one of the two remaining QMEs on the panel?
It appears that Rosa Moran has resigned as Division of Workers’ Compensation Administrative Director, effective September 5th. We all recall the recent appointment of July 18, 2011, and now, just over a year later, the post is vacant once more. According to the Insurance Journal, Rosa Moran will return to her post as workers’ compensation Judge in Oakland.
Rosa Moran’s tenure saw some driven and dedicated work – visiting Insurance Company of the West, engaging in a listening tour to hear complaints from workers’ compensation community members all over the state, and otherwise trying to shake things up in the workers’ compensation world.
Now, your humble blogger does not know Judge Moran personally, and can only speculate as to the reasons behind this resignation. But it says something about our system if a seasoned attorney and veteran judge has had enough after just over one year. Whether reforming workers’ compensation, or handling the demands of politicians, or the mixture of the two did it, doesn’t really matter – something’s got to change.
Private security firms often present a tricky issue for workers’ compensation matters. Injuries still occur, despite the rigorous training courses they provide:
And then comes the inevitable debate – who is to bear the cost of applicant’s (allegedly) industrial injury?
Be careful, dear readers, in opening the can of worms that is Robert Flores v. Garnett Protective Services & Security. There certainly are a few layers to this case.
Applicant Robert Flores was employed by Garnett, which, under the terms of its contract, provided security to Joseph’s Café. Joseph’s was a venue version of Batman, providing restaurant service by day and night club service by night. On occasion, Joseph’s Café would tip Flores and other security guards for a job well done, or offer them additional hours on a cash basis for extra events that were not on the regular schedule.
Garnett had trained Flores, and had the power to hire, fire, or direct his work. Joseph’s had no one of these powers.
Mr. Flores was called in to do an extra shift, as he is five or six times a year, and was on his way to Joseph’s Café when an unfortunate automobile collision resulted in a claimed industrial injury. Joseph’s Café had insurance, while Garnett had allowed its insurance to lapse, bringing in the California Insurance Guarantee Association. CIGA’s position was, to the surprise of absolutely no one, that Joseph’s was also Flores’ employer, and that the injury sustained by Flores was industrial as a “special mission” exception to the “going and coming rule.”
The Arbitrator agreed, reasoning that employment was established by showing that sometimes Joseph’s would hire Flores directly to cover special events that were outside the scope of Joseph’s contract with Garnett, and that the special event to which Flores was going on the night of his injury constituted a “special mission” because it was unusual.
Joseph’s insurer, Pennsylvania Manufacturer’s Association Insurance Company, petitioned the Workers’ Compensation Appeals Board for reconsideration, which was readily granted. The WCAB held that Flores was not an employee of Joseph’s because Joseph’s had no power to control the manner of his performance or to terminate his employment, only to terminate its contract with Garnett.
Furthermore, because Flores worked special events, like the one he was headed to at the time of his injury-causing-collision, this was not a special errand or mission but just a regular discharge of his duties (although required of him infrequently). Therefore, there was no industrial injury.
The dissenting opinion to the panel would have concurred with respect to employment, but not with respect to industrial injury. Deputy Commissioner Sullivan would have found an industrial injury, reasoning that the scheduled event Flores was to work met the definition of a “special mission,” which “occurs when the employee is invited or required by the employer to perform an activity that is within the course of the employment, but is unusual or extraordinary in relation to the employee’s routine duties.”
Bear in mind, dear readers, that your humble blogger’s very instincts militate against agreeing with any notion that any injury should be considered industrial. However, in this case, he is inclined to agree with Commissioner Sullivan’s opinion. Although applicant’s regular job included duties year-round, a special mission was involved five to six nights a year. Percentage-wise, the special events constituted 1.4-2% of the nights in the year, which should meet the definition of “unusual or extraordinary.”
But, there is cause for rejoicing all around, no? After all, Pennsylvania is off the hook because it is not an employer; CIGA is off the hook because no industrial injury occurred, and Garnett is not on the hook as much as it thought it was, because the injury is now Flores’ responsibility (here’s hoping Mr. Flores had auto insurance!)
Happy Patriot Day, dear readers!
We often get riled up, frustrated, angry, and heated over issues in workers’ compensation, and rightly so. Comp is an incredibly frustrating system at times. That being said, it’s important to remember all things have a context, and there is a much larger world out there.
Even if your day is hectic and crazy today, with the phone ringing off the hook, e-mails flooding your inbox, and an endless time-delay between you and the weekend, your humble blogger wishes you a moment of peace and remembrance for what’s important in life.
As you may recall, dear readers, your humble blogger risked life and limb to bring you the story of Raphael “Noodle” Davis, a (now) ex-Los Angeles firefighter who continued to participate in Mixed Martial Arts (MMA) competitions and brag about his running times on twitter even though he was allegedly “disabled” and couldn’t return to duty as a firefighter.
This defense attorney’s tough exterior shielded him from an impromptu MMA match, but Mr. Noodle’s did not help him avoid prosecution by the Los Angeles County District Attorney’s office.
It looks like Mr. Noodle pled out, agreeing to repay $30,000 in restitution and performing 200 hours of community service. Mr. Noodle was able to sustain such a sentence, because he developed a tolerance for such punishment as part of his MMA training. In fact, there is a very painful attack in MMA, called “slap on the wrist,” which closely resembles this sentence.
Doesn’t LA have a problem with its budget? Is money really flooding the streets of Los Angeles County that they can afford to give a wink and a nod to firefighters, policemen, and any other city and county employees who choose to get a fraudulent pay-day? The City was effectively paying Mr. Noodle to pursue his MMA career! Will the $30,000 really cover the cost of investigation, prosecution, and enforcement?
Fraud is hard to detect, and therefore hard to deter. When you do catch a fraudster like Noodle, you have to throw the book at him so the rest of the workforce will realize it is not worth it. As it stands, it’s pretty worth it right now in L.A.
WCDefenseCA would love to give a salute to the Los Angeles County D.A.’s office, but unfortunately no salute shall issue.