Monday, June 4, 2018

Employee vs. Independent Contractor - A Civil Test


Businesses sometimes attempt to disclaim an employment relationship between themselves and the people who work for them.  Frequently, this is done by asserting that workers are independent contractors, rather than employees.  Businesses see an advantage to classifying workers in this way because they may not have to provide benefits or pay for certain types of insurance - such as worker’s compensation insurance - for independent contractors.  Businesses also may not have to pay payroll, social security, and other types of taxes for independent contractors.  Statutes and regulations concerning wages, hours, and working conditions that apply to employees may not apply to independent contractors.  And, with only a few exceptions, a business might not be held vicariously liable – under a respondeat superior theory – for the tortious conduct of an independent contractor, while the same would not be true concerning the torts of an employee. 

Generally, the test for whether a worker is classifiable as an employee or independent contractor is heavily based upon whether the business maintains the right to control the work.  This is particularly true with regard to claims made by the worker against the hirer.  Blackwell v. Vasilas (2016) 244 Cal.App.4th 160, 168 [“A worker is an independent contractor when he or she follows the employer's desires only in the result of the work, and not the means by which it is achieved.”]. 

In a recent California Supreme Court case, Dynamex Operations West, Inc. v. Superior Court, the Court utilized a test called the “ABC test” to determine if an employee was an independent contractor for purposes of determining the worker’s wage and pay rights.  The ABC test requires an analysis of the following three factors:  (A) whether the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) whether the worker performs work that is outside the usual course of the hiring entity's business; and (C) whether the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, 916–917

It remains to be seen whether the Supreme Court’s adoption of the ABC test will impact the lower court’s analysis of what makes an employee vs. an independent contractor in context of other employees’ rights cases, or in cases of tortious injuries caused by workers. 

Monday, May 7, 2018

Preparing for Depositions


When people are injured on the job and they file a workers’ compensation claim, they are known as applicants. Many applicants have never had their deposition taken before. Although it may seem like a daunting task, depositions are not as complicated as they may seem. Additionally, depositions are an essential opportunity for both the applicant’s attorney and the defense counsel to obtain facts which are vital to the claim.

A deposition is an opportunity for the defense counsel assigned to the case, to ask the applicant questions while “under oath.” There are many reasons why the deposition may be taken. The defense counsel may need answers to simple questions. However, the defense counsel cannot just call the applicant because they cannot speak with them outside the presence of their attorney. Thus, they must schedule a deposition to get the answers they need.

Deposition testimony is considered the same as if an applicant were sitting before a judge in court. Just because the depositions are taken outside of court, in a “relaxed” atmosphere, does not mean the same obligation to tell the truth does not apply. An oath is administered at the beginning of all depositions asking the applicant to affirm they will tell the truth. This means that not telling the truth in response to any questions asked, could result in criminal penalties such as penalties for perjury and workers’ compensation fraud. Thus, it is best to prepare for a deposition well in advance to ensure any information relayed in response to questions asked is accurate.

Often, the defense counsel has performed a substantial amount of research prior to the deposition. They will have already obtained information about prior workers’ compensation claims, car accidents, and will also often have information from investigators who have observed the applicant in performance of various daily activities. The defense counsel will use such information to verify the applicant’s credibility. For instance, they will ask the applicant questions they may already have answers to, such as “were you in a car accident in May of 1995?” The defense will already have proof that the applicant was in such an accident, and if the applicant does not answer truthfully, they will use that dishonesty against them later. The applicant’s credibility is essential to their case and must be preserved.

Being credible makes the applicant a good witness. The better they are as a witness, the easier it will be for the applicant’s attorney to prevail on issues in court that the defense counsel may challenge. This will also cause the defense counsel to report to their client (the insurance adjuster) that the applicant will make a good witness at trial, which could subsequently push them toward settlement without putting up a fight in court.

Not all of the questions asked by the defense will be directly relevant to the particular case at issue but may lead to relevant evidence. Such information includes past residences, places of employment, the names and addresses of doctors the applicant has seen, hospitals where they have been a patient, and any other lawsuits, accidents, injuries, etc.
It is important for the applicant to listen carefully to each question. The applicant should never assume they know the answer or begin to respond to a question before the defense counsel has finished speaking. This is because, once complete, the question may be designed to elicit certain information and if answered prematurely, the applicant may not answer the question correctly, which can cause harm to their case and credibility. This is also important because a court reporter will be making a transcript of the deposition. If people are talking over each other, or if they are talking to fast, it will be difficult for the reporter to accurately transcribe all that transpired, which can cause difficulty later if issues about what was said during the deposition are raised in the future.

It is also important to answer questions with words rather than gestures. When describing an injury to a body part, do not merely say “I was hurt here” and point to that area of your body. Rather, you should state, “I injured my left knee.” Additionally, questions should be answered with yes or no responses. Responses such as yeah, uh huh, or head nods, may not accurately reflect what the applicant is attempting to say, making it difficult for the court reporter to take down an accurate record of the proceedings.

If the applicant is not sure they understand the question, they should ask for clarification. There are no penalties for asking for a question to be repeated or explained. As mentioned before, it is essential that the applicant thoroughly understands the question so they can answer it accurately.

Applicants should not guess. However, applicants can provide approximations based on personal knowledge. For instance, if the defense counsel asks the applicant to tell them how much change is in the defense counsel’s pocket, the applicant would have to guess because they have never seen the defense counsel before and would have no reason to know how much money they have. Whereas, if defense counsel asks them to state the length of the conference table in the room where they are sitting, the applicant can estimate what the length of the table is because they have seen it with their own eyes and have personal knowledge of the circumstances or surroundings at issue. Thus, it is acceptable for an applicant to provide estimates or approximations based on personal knowledge, but it is not acceptable to guess. It is important to remember that the depositions are taken under oath and a guess can later be construed as a lie, which can lead to penalties.

If the applicant’s counsel objects to a question, the applicant should not answer the question until instructed to by their attorney. There are situations where the applicant’s attorney will instruct the applicant not to answer a question to protect certain rights, such as the right against self-incrimination. Thus, the applicant should pay close attention and strictly adhere to their attorney’s instruction to ensure such rights are protected.

The applicant should not volunteer information that is not requested. Often, there will be a period of silence following a question by the defense counsel and the time when the applicant has answered. This usually occurs because the defense counsel is recording their notes. However, many applicants feel the need to fill the silence with greater explanation of their response. Applicant’s should refrain from doing so. If the defense counsel requires more information, they should be forced to ask follow-up questions. Under no circumstance should the applicant unnecessarily volunteer more information than is necessary to provide a truthful answer to the specific question asked. If the applicant is confused or requires guidance, they should ask for a break and consult with their attorney.

The applicant should be made aware that they can take breaks. If they need to use the restroom, confer with their attorney, or just get up and stretch, they are welcome to ask for a break so they can do so. It is understandable that a person who was injured on the job may have to stand and stretch or move around at certain intervals because of the condition they are in. The depositions are not designed to be uncomfortable or overly unpleasant. If the applicant needs a break, they can simply let their attorney know at any time. Additionally, they do not need to remain seated while answering the questions. If it is easier or more comfortable for them to stand, they are allowed to do so.

It is important to remain professional and courteous at all times. This applies to the applicant, and their attorney. A little professionalism and cordiality go a long way. Especially since the applicant’s counsel will be working closely with the defense counsel to obtain resolution of the case. They do not have to agree on everything, but they do need to treat each other with courtesy. Such treatment will make it much easier for the parties to settle the case and provide expedient resolution to the applicant.

At the conclusion of the deposition a transcript of the proceedings will be prepared. The applicant will be provided an opportunity to review the transcript and correct any errors. It is important to provide accurate answers during the deposition, because, if the applicant makes changes based on the transcript, the defense counsel can comment on such changes at trial, which could undermine the applicant’s credibility as a witness. Depositions are a means to gauge future testimony at trial and if the testimony at trial is not consistent with the answers provided during the deposition, it can lead the judge to believe the applicant has not been truthful. Additionally, the deposition transcript can also be shown to doctors and others involved in the case who can provide insights which may assist in determining the outcome of the case. Thus, it is imperative that an accurate record be obtained during the deposition.

To better prepare for the deposition and ensure the accuracy of the information presented in the applicant’s answers, it is perfectly acceptable to review documents prior to, or even during the deposition. Applicant attorneys should review potential questions with the applicant to make sure they are prepared. The attorney should also show the applicant what has been subpoenaed or discovered already to ensure the applicant is prepared to answer questions related to that material. It is also important for the applicant to understand that they should not exaggerate or underestimate their disability. Honesty and accuracy are essential to the proper resolution of the claim.

During the deposition the applicant will also be asked how much time they spent in preparing for the deposition. The applicant should provide an accurate estimate, or actual time, if known, of the time spent in preparation with their attorney. This is one of the few occasions where the defense must pay the applicant’s attorney for time spent working on the case. The applicant may also be reimbursed for their time off work to attend the deposition, along with mileage and parking expenses.

For more information about evidence and depositions see the following and be sure to consult with a licensed attorney:


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.