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. 

Gregory G. Gomez is a senior attorney at Mastagni Holstedt. He practices in Workers’ Compensation, and specializes in complex serious and willful misconduct cases and Labor Code section 132a discrimination claims.

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.

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.