Thursday, April 5, 2018

Flying Soil Compactors and What Exactly is “Sudden and Extraordinary” Under Labor Code 3208.3?

Under Labor Code Section 3208.3, “no compensation shall be paid for a psychiatric injury…unless the employee has been employed by that employer for at least six months. This subdivision shall not apply if the psychiatric injury is caused by a sudden and extraordinary employment condition." (Italics added).

What exactly is “Sudden and Extraordinary?” Jose Guzman was operating a soil compactor when he was injured. The compactor hit a rock while Guzman was working on a hillside with a 45-degree slope. The compactor rose in the air, caused Guzman to fall backwards, and then fell on top of him. The workers' compensation judge determined that Guzman sustained an injury to his back and psyche, and that the psychiatric injury was caused by a “sudden and extraordinary employment condition.” The workers’ compensation carrier petitioned for reconsideration, which was denied. The carrier filed a petition for writ of review.  The Sixth District Court of Appeal agreed with the carrier.  Flying soil compactors are not “sudden and extraordinary.”  The Court reasoned that since Guzman had not introduced any evidence of what happens when soil compactors hit rocks he did not meet the burden of proof.   SCIF v. WCAB (Jose Guzman), No. H044300 (Cal. Ct. App. Feb. 23, 2018) was originally de-published but on February 23, 2018, ordered published at the request of SCIF.

There are several decisions where “sudden and extraordinary” is examined. The latest issue of the California Workers Compensation Reporter had a nice write up on the issue.  Here are some recent examples.

In Matea v. WCAB (2006) 144 Cal.App.4th 1435, the court determined that a rack of lumber falling on an employee of The Home Depot was “a sudden and extraordinary employment condition.”  The court believed that “all the lumber in a rack falling into an aisle and onto an employee's leg causing injury to the employee was . . . such an uncommon, unusual, and totally unexpected event or occurrence.” In SCIF v. WCAB (Garcia) (2012) 204 Cal.App.4th 766  an avocado picker fell from the top of a 24-foot ladder while picking avocados from a tree. The Court determined that the employee's fall was sudden, but not extraordinary.  In Travelers Casualty & Surety Co. v. WCAB (Dreher) (2016) 246 Cal.App.4th 1101 it was determined that falling on slippery concrete while walking at the job site was not extraordinary.  

Here are a few more cases where the Court made a finding of “sudden and extraordinary.”  Applicant was driving a truck and trailer and lost control on a wet highway, the trailer jack-knifed and Applicant was thrown to the passenger side of the truck and then out the passenger side door, the Applicant saw the trailer coming toward him…circumstances here were sufficient to be interpreted as "extraordinary" (California Insurance Guarantee Association v. WCAB (Tejera) (2007) 72. Cal. Comp. Cases 482). Employee suspended half way up an 80-foot tree that he was cutting and the trunk of the tree fell, hitting him in the chest and causing serious physical and psychiatric injury (Campos v. WCAB (2010) 75 Cal. Comp. Cases 565) (unpublished). A wall unexpectedly fell and the Court found that it was both uncommon and unusual for a wall to fall on a worker. (Production Framing Systems v. WCAB (Dove) 77 Cal. Comp. Cases 756).

What is “sudden and extraordinary” is still a matter of debate among applicant and defense counsel and a matter of opinion among the appellate courts.  These types of cases seem to be extremely fact sensitive.  That said, there does seem to be a loose consensus that the event causing injury must really be extraordinary, unless it’s a flying soil compactor, apparently.

Thursday, March 1, 2018

The Social Security Application Process

If you are injured, and have been unable to work for a year or longer or are expected to be unable to do so, you may be entitled to receive social security benefits.  

The social security application process can be long, often taking over two years.  The first step is to file an application.  This can be done online or at your local social security office.  Many people are denied.  This can be discouraging, but should not stop you from appealing your denial.  Similar to your application, you can appeal your denial online or at your local social security office.  This first appeal is called a Request for Reconsideration.  That is, you are asking the Social Security Administration to reconsider your claim.  Unfortunately, many people are denied at this level as well.  If you are denied a second time, and it is not uncommon to be denied twice, you should appeal a second time.  Again, this appeal can be done online or at a social security office.  This appeal is called a Request for Hearing by an Administrative Law Judge.  By filing this appeal, you are requesting that a social security judge review your claim.  This gives you the opportunity to present your case, in person, to an Administrative Law Judge.  However, the time between filing this second appeal and the hearing is extensive, often over a year.  During this waiting period, you should see your healthcare professionals as needed, and submit your medical records to the Social Security Administration to prepare for your hearing.  While this hearing is your best opportunity to obtain social security benefits, if you are denied, there are further appeals you can pursue.  

How can an attorney help you with regard to your social security claim?  First, they can help you determine if you meet the requirements for applying for either social security disability program, social security disability insurance (SSDI), or supplemental security income (SSI).  These programs have different eligibility requirements, and an attorney can help you determine which program, if either, you should apply for.  Second, an attorney can look at your denial and pinpoint the reasons for that denial.  Once the reasons for the denial are understood, an action plan can be developed to best target those reasons.  Third, an attorney can prepare you for, and represent you at, your hearing.  An attorney can write a brief to prepare the judge for your hearing, highlighting your best arguments.  He or she will be able to effectively cross examine the vocational and medical experts that may be present at your hearing.  Most importantly, an attorney will be able to make sure that your hearing gives you the best possible opportunity to tell the judge your story.  For all of these reasons, hiring at attorney to assist you in your social security disability claim gives you the best chance of success in your claim.  

If you have questions or are interested in starting the social security application process, please contact attorney Andrew Doriott at (916) 491-4224.

Thursday, February 8, 2018

Extending a Helping Hand to Survivors of the Napa and Sonoma County Fires

Mastagni Holstedt is pursuing civil claims against Pacific Gas & Electric Co. (PG&E) and any other at-fault parties over the series of destructive wildfires that swept across Northern California in October 2017.

State regulators released reports from PG&E that document at least 20 cases of toppled trees and downed power lines across Northern California the night of October 8, 2017, when strong winds and drought-parched vegetation caused fires from Sonoma to Butte Counties. These deadly wild fires are among the most destructive in California history and were declared a major disaster by President Donald Trump.

Mastagni Holstedt employs a team of highly experienced lawyers who understand the intricacies of mass tort lawsuits and who care deeply about those effected by the devastation caused by these fires. Although our investigation is ongoing, Mastagni Holstedt’s team of experts believes that PG&E is likely to blame for the spark that ignited this series of devastating fires. Our preliminary investigation indicates that PG&E’s negligent maintenance of its power poles and power lines is to blame for starting the fires that resulted in billions of dollars in property loss and the death of dozens of Californians.

This lawsuit will seek to recover compensation for any and all costs that are not covered by homeowner’s insurance, including any personal injuries, wrongful deaths, lost wages/profits, and emotional distress. Because our representation is on a contingency fee, we handle all upfront costs and our clients do not pay anything unless we recover damages for them. Moreover, we are offering a reduced attorneys’ fee to handle these cases.

If you or anyone you know is interested in obtaining our representation for this civil lawsuit, or if you are experiencing issues with your homeowner’s insurance, then please contact Justine Lamy at (916) 491-4244 and she will put you in touch with one of our civil litigation attorneys.

Phillip R.A. Mastagni is a Partner in the civil litigation department of Mastagni Holstedt, A.P.C. He specializes in complex civil litigation including mass tort, fire damage, and burn injury cases. Mr. Mastagni also has extensive experience litigating against PG&E and other utilities and telecommunications companies.

Tuesday, January 2, 2018

Social Security Disability and Workers’ Compensation

If you are currently an applicant in the workers’ compensation system, you should also consider making a claim for Social Security disability benefits.  The Social Security disability program is a federal program, which may provide monetary and medical benefits to recipients.  

Social Security benefits are provided through two different programs: Social Security disability insurance (“SSDI”) and Supplemental Security Income (“SSI”).  An attorney can help determine which, if either, of these programs you may qualify for.  The good news is that the application process for both programs is very similar. 

The application process can be long.  A large majority of people are denied for their initial application.  Many of these same people are denied after their first appeal.  It is only after the second appeal, and after a hearing before an Administrative Law Judge, that you have your best chance to be declared disabled.  This entire process can take more than two years.  However, if you are currently within the workers’ compensation process, or if you have recently completed it, there is minimal additional work involved for you.

There is another benefit to applying for Social Security benefits concurrent with or soon after a workers’ compensation claim: you will already have an extensive and detailed medical record and multiple medical evaluations with which to help prove your disability claim.  If an attorney at Mastagni Holstedt, APC is representing you in a workers’ compensation claim, you can speak with them regarding the possibility of filing a Social Security disability claim.  

Mastagni Holstedt, APC has extensive experience representing disabled persons in their claim for Social Security benefits.  If you are interested in applying, or have applied and been denied, please contact Andrew Doriott at our office at (916) 491-4224.

Monday, December 18, 2017

S&W Penalties: What Employer Misconduct Rises to the Level of Serious and Willful?

When an employee’s industrial injury is caused by the serious and willful misconduct of the employer, Labor Code section 4553 allows for the employee’s compensation to be increased by one-half upon a petition for penalties to the Workers Compensation Appeals Board.  The California Supreme Court has determined that the one-half increase applies to every benefit or payment provided to the applicant under Division Four of the Labor Code, including medical treatment payments, medical-legal fees, vocational rehabilitation costs, and all indemnity benefit payments.  As the penalty is due to quasi-criminal conduct, Workers’ Compensation insurance does not cover employer serious and willful misconduct; and the penalty is assessed directly against the employer.

Serious and willful misconduct petitions claim injury through either the employer or his managing representative, or general superintendent’s violation of a Cal/OSHA safety order, or the failure of the employer to provide a safe working environment under Labor Code section 6400.  Safety Orders are contained within Division 5 of the Labor Code.  Should the injured worker believe that the employer committed serious and willful misconduct, he must file his petition within one year of the date of injury.

To prove an employer’s violation of a safety order, the injured worker must show  (1) the specific manner how the order was violated; (2) how the violation proximately caused the injury to the applicant; and (3) either – the safety order and the conditions of its violation were actually known and violated by a specific individual; - or where the condition making the safety order applicable was obvious to the employer or his representative as designated under Labor Code section 4553, and the failure of that individual to correct the problem constituted reckless disregard for the consequences. 

Labor Code section 6400 requires every employer to furnish employment and a place of employment that is safe and healthful for its employees.  Labor Code section 6400.  To prove employer serious and willful misconduct for an unsafe environment, an injured employee must prove that the employer (1) knew of the dangerous condition; (2) knew that the probable consequences of the condition would involve serious injury to an employee; and (3) deliberately failed to take action.

For a single instance of serious misconduct, the injured worker must show with reasonable particularity that the reckless disregard for safety was made by a person in the managerial class of the employer.  Where obvious, fixed, and long-maintained conditions of hazard exist, the courts have inferred that the conditions were known to members of the managerial class, and can be proved by circumstantial evidence, including evidence of prior injuries arising from similar circumstances.

Courts have required egregious conduct by the employer to be considered serious and willful misconduct.  Serious and willful misconduct involves conduct of a quasi-criminal standard, and are acts that are either likely to result in serious injury, or with a wanton and reckless disregard of their possible consequences.  The misconduct requires an intention to do harm, making it the antithesis of negligence of any degree.  A willful failure to protect an employee from likely injury has been found sufficient to meet the standard.  This standard is applicable both in violations of the Safety Orders as well as a violation of Labor Code section 6400.

Under Labor Code section 4551, an injured worker can be penalized, upon petition by the employer, for his own serious and willful misconduct which caused injury.  If the employer proves that the employee’s own misconduct caused his injury, the otherwise recoverable compensation may be reduced by up to one half upon a findings and award by the Workers’ Compensation Appeals Board. 

Plaintiff – Employment Discrimination Practice

On September 20, 2017, the Federal District Court for the Eastern District of California ruled in favor of an employment discrimination plaintiff represented by Mastagni Holstedt, APC, denying the defendants’ Motion for Summary Judgment. Mastagni Holstedt, APC represents a Butte County Sheriff’s Deputy, Michael Sears, in this federal Racial Discrimination and Harassment lawsuit against the Butte County Sheriff’s Office and a number of individual employees of the Sheriff’s Office. 

In the lawsuit, Deputy Sears – who is African American – asserts that members of the Butte County Sheriff’s Office engaged in derogatory and hateful speech because of race, including use of the word the “N-word” and terms such as “Canadian Blue Gum.”  Mr. Sears charges that a black and white plastic panda figurine was hanged in a Sheriff’s facility and Mr. Sears was told that “the hanging doll symbolized Mr. Sears because Mr. Sears is half-Black and half-White.”  Mr. Sears charges that he was denied promotional opportunities and other job benefits.  Taking evidence of these allegations into consideration – along with evidence of many more instances of racially discriminatory conduct – the Federal Court reasoned that “Plaintiff has offered sufficient evidence in the current posture to show that he was subject to discriminatory and harassing conduct and there are numerous triable issues of fact as to whether Defendants’ proffered reasons for their actions were legitimate or pretextual.” 

In so ruling, the federal court refused to deny Mr. Sears his day in court before a jury. The case now proceeds in litigation toward trial. 

Tuesday, October 3, 2017

Cumulative Injury: Can I Still File My Claim After Termination?

What is a Cumulative Trauma Injury?

A cumulative trauma injury is an injury that is caused by repeated events or repeated exposures at work. For example, hurting your wrist by doing the same motion over and over, or losing your hearing because of constant loud noise.

Post-Termination Cumulative Trauma Injury Claims

Generally, an employee cannot file a claim after termination, even if the injury occurred prior to notice of the termination. However, there are multiple exceptions to this general rule. 

In cases of cumulative trauma injuries, Labor Code section 3600(a)(10)(D) provides an exception to this general rule. To qualify for this exception, the employee must show that the date of injury occurred after termination or layoff. The date of injury is defined by Labor Code section 5412 to occur when the employee (1) first suffers disability from the injury, AND (2) knows or should have known that the disability was caused by the employment. This exception applies where an employee suffers a work-related cumulative trauma injury, but only discovers that the injury is work-related after being fired. 

In recently applying Labor Code section 3600(a)(10)(D), the court of appeal held in County of Riverside v. Worker’s Comp. Appeals Bd. (2017) 10 Cal.App.5th 119, that a former Deputy Sheriff did not know, and could not have reasonably known, that the cumulative trauma injuries he suffered were industrially caused until his doctor told him that his symptoms were industrially related, and therefore the statute of limitations for workers’ compensation claim did not begin to run until that time. Also, in City of Fresno v. Workers’ Comp. Appeals. Bd. (1985) 163 Cal.App.3d 467, despite the employee's expression of belief that his employment caused his injury, the court of appeal held that the applicant could not have reasonably known that his injury was work-related because he did not have expert training or qualifications to recognize the relationship between the known adverse factors involved in his employment and his injury. Thus, the court held that the applicant’s one-year limitation period to file a claim began with the city’s denial of benefits letter, and the applicant’s claim, filed within a year of the letter, was timely.