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.

Tuesday, February 16, 2016

IBEW Local 1245 Publishes Article on King v. CompPartners, Inc.

IBEW Local 1245 published an article by Mastagni Holstedt associate attorney Gerald Latasa about King v. ComPartners.  In King v. CompPartners, the Court of Appeal held that doctors reviewing treatment requests on behalf of insurance companies in workers’ compensation cases may now be held civilly liable if their recommendations fall below the standard of care required of doctors.  Read more about the case on Local 1245's blog here.

Monday, December 7, 2015

Mastagni Holstedt attorney Jeffrey Edwards presenting on LGBT Issues in the Workplace

Mastagni Holstedt attorney Jeffrey R. A. Edwards is presenting on LGBT Issues in the Workplace on Wednesday, December 9, 2015 at Noon at the Dante Club, 2330 Fair Oaks Blvd, Sacramento.

Friday, November 13, 2015

Workers' Compensation Destination

For over 40 years the law firm of Mastagni Holstedt, APC has been the destination to resolve Workers’ Compensation claims in California.

Being one of the largest law firms in California with over 45 attorneys firm wide, including 15 Workers’ Compensation attorneys and over 10 support staff members within the department, Mastagni Holstedt, APC is ready to answer your tough questions and resolve your claim in a timely and professional manner.

With locations throughout California and our central location in the Capital City of Sacramento, Mastagni Holstedt, APC is known for answering legal questions from individuals around the state.

This firm represents the rights of citizens in any profession, such as Police Officers, Firefighters, public employees, and private sector employees. This family owned and run business handles a wide range of different Workers’ Compensation injuries. Dealing with an injury and resolving any claim on your own can be a daunting task, having Mastagni Holstedt, APC on your side can make the process less stressful and you will not feel overwhelmed in the complicated legal system.

To answer any of your Workers’ Compensation questions, contact Mastagni Holstedt APC throughout the state 27/4 Toll Free Line 800-852-7581

In Northern California, Monday through Friday 8AM-5PM at 916-446-4692
Fax: 916-447-4614.
1912 I Street, Sacramento, CA 95811.

In Southern California Monday through Friday 8AM-5PM at 909-476-3560.
3400 Inland Empire Blvd, #101
Ontario, CA 91764

Wednesday, November 4, 2015

Supreme Court Rules Regular Sworn Peace Officers Are Not Entitled to Same Disability Benefits as Volunteer Peace Officers

Sworn peace officers who are regular employees of a law enforcement agency are not entitled to the same disability benefits as volunteer peace officers, according to the Supreme Court’s latest decision.

On October 26th, the California Supreme Court decided the case of Larkin v. Workers’ Compensation Appeals Board. The Supreme Court ruled that Labor Code section 4458.2 does not apply to sworn peace officers who are regular, salaried employees of a law enforcement agency.

Under Labor Code section 4458.2 an officer’s temporary disability (or “TD”) benefit is set at the maximum statutory rate instead of being based on what they were actually earning. This means that if an officer was serving as a volunteer or reserve officer when they were injured on duty, they would receive TD benefits as if they were full-time employees of the agency. And the officer would receive TD benefits at the highest possible rate even if they were actually paid less while they were working.

This makes a huge difference in the amount an officer is paid for an on-the-job injury. Normally, an employee’s TD benefit payment is only two-thirds (2/3) of their regular salary. But under Section 4458.2 an officer would receive the maximum statutory rate of TD, as if they were among the highest paid employees.

To put this in real terms, in 2008 Police Officer John Larkin was seriously injured in a vehicle accident while on duty. His average weekly salary at that time was around $1000. The City of Marysville said it would only pay Larkin TD at two-thirds of his salary, meaning around $670 per week. But if Section 4458.2 was applied and Larkin was paid TD at the maximum statutory rate, he would receive over $900 per week in TD benefits. That is a difference of more than $10,000 over a year.

Officer Larkin filed a claim for TD benefits under Section 4458.2. But the Workers’ Compensation Appeals Board ruled for the City of Marysville and denied his claim. The Court of Appeal then ruled against his appeal. With attorneys Brian Dixon and Gregory Gomez from the Law Offices of Mastagni Holstedt, A.P.C. representing him, he took his case all the way to the California Supreme Court.

Unfortunately, the Supreme Court sided with the City of Marysville and ruled that Section 4458.2 did not apply to Officer Larkin. The Court largely deferred to the Workers’ Compensation Appeals Board, although it did offer some of its own reasons for the ruling.

The Supreme Court’s main justification was that Section 4458.2 was originally written to provide disability coverage to volunteer peace officers. Officer Larkin’s attorneys pointed out that the word “volunteer” was removed from the law in 1989 and is not in the other law it references (Labor Code section 3362). But the Court said that when the State Legislature made these amendments it did not mean to broaden the law to apply to all peace officers. To back this up the Court pointed to certain historical legislative documents and ignored others that did not support its ruling.

Another reason the Supreme Court gave was that regular peace officer employees are covered under Labor Code sections 4850 and 4853. These laws allow an injured officer to take up to one year of full-paid leave and then up to one year of TD benefits at the normal two-thirds rate. The Court argued that it was “balancing” the interests of regular and volunteer peace officers by denying regular officers Section 4458.2 benefits.

The Court ignored the reality facing many peace officers in smaller cities and rural counties. Officers like Larkin choose to serve in dangerous positions for less pay than their colleagues in wealthier cities and counties. They should not be punished when they suffer an on-the-job injury. But now, not only will officers like Larkin get less in TD benefits than many regular peace officers. They cannot even get the same TD benefits that volunteer peace officers receive. This ruling affects the rights of more than 73,000 police and sheriff patrol officers across the state. (Employment Development Department, Police and Sheriff Patrol Officers in California.)

On behalf of the thousands of peace officers hurt by this inequity, Mastagni Holstedt, A.P.C. hopes the Legislature immediately fixes the law and overturns the Supreme Court’s ruling.

Friday, October 16, 2015

Governor Vetoes Expansion of Medical Leave

On Sunday, October 11, the Governor vetoed SB 406, which would have expanded the California Family Rights Act (CFRA). SB 406 would have allowed an employee to use CFRA leave to care for a sibling, grandparent, grandchild, domestic partner, or parent-in-law with a serious health condition. The current law does not include these family members. SB 406 would also allow parents working for the same employer to each take 12 weeks of leave for the birth of a child. The CFRA only allows parents to take a combined 12 week leave.

The Governor's veto message stated that he was open to allowing workers to take leave for additional family members. The bill failed, however, because it could require employers to provide up to 24 weeks on family leave in a 12 month period. Had SB 406 limited the leave period to a total of 12 weeks under both the CFRA and FMLA, it is likely it would have passed.

Tuesday, September 1, 2015


Workers suing a public employer must know about a possible hurdle: Anti-SLAPP motions. In Park v. Board of Trustees of California University (2015) (Park), a California appeals court used an “anti-SLAPP” law in favor of a public employer. SLAPP stands for “Strategic Lawsuit Against Public Participation.” SLAPPs are used to scare and silence critics.
California has made “anti-SLAPP” laws that allow a defendant stop a SLAPP suit dead in its tracks if (1) the suit was based on free speech about a public issue or made during official proceedings authorized by law, and (2) the plaintiff cannot prove that it would likely win. Thus, an “anti-SLAPP motion” saves a defendant from the expenses of a long lawsuit. In a sense, one can think of a SLAPP defendant as the “David” to plaintiff’s “Goliath.” But what happens when the roles are reversed? What happens when Goliath “anti-SLAPPs” David?
In Park, a teacher sued the California State University system for discrimination. In response, CSU “anti-SLAPPed” Park, saying that Park’s lawsuit came from protected speech made during its tenure review process. The Court of Appeal agreed and found that that all of Park’s claims were based on “protected speech activity” made during legally authorized personnel procedures for public workers.
Park illustrates where an anti-SLAPP motion is used to disrupt a plaintiff’s suit against a public employer. Thus, where a public worker’s suit might implicate protected public speech, the worker must carefully craft their legal argument and brace against a potential anti-SLAPP motion.