Monday, March 26, 2012

One Woman's Struggle for Reimbursement

One of the principal cornerstones of the workers’ compensation system, both in California and abroad, is the right to medical care. California Labor Code Section 4600 states that a broad range of medical care “that is reasonably required to cure or relieve the injured worker from the effects of his or her injury shall be provided by the employer.”

When someone is gravely injured, the level of this necessary care reaches quite far: extensive surgery, hospitalization, and sometimes even constant bed-side care. In a real sense, this is the system working at its best: the level of care matches the workers’ need, not some arbitrary external standard. However, this also means that the costs to defendants reach high levels, and defense attorneys seek creatively destructive arguments to weasel out of providing necessary care.

Recently California has seen a particularly nasty illustration of this sort of defense tactic, which, despite decisive rebukes from the Workers’ Comp Judge and the Workers’ Compensation Appeals Board, is now pending in the California Third Circuit Court of Appeals.

Felix Nino Mota was working as a lawn care worker for Allgreen Landscaping in Orange County when he suffered a brutally debilitating injury in 2001. Virtually his whole body was impacted: his head, neck, jaw, low back, right leg, right shoulder, left wrist, chest, liver, nose, eyes, gums, urinary tract and gastrointestinal system. He wound up settling his claim at 89% permanent disability with the right to ongoing and future medical care.

Mr. Mota required nearly constant care to get through daily life, and according to the uncontested language of Labor Code Section 4600, the defendant had to pay. Faced with this horrible incident, Mr. Mota’s wife Teodora left her home in Mexico to come to California and do what she could to help. She obtained legal permission to enter the country, though she did not maintain proper documentation through the long time in which she was caring for her severely disabled husband.

Defendant did not object to the care Ms. Mota was providing—at least not until she filed a lien to receive reimbursement for her work. As noted, this is nothing more or less than routine when medical providers give care without being paid. When Ms. Mota went forward and requested what was owed to her, Allgreen’s lawyers brain-stormed a series of spurious reasons in an attempt to keep their client’s wallet shut.

They claimed that Ms. Mota had not filed her lien in a timely manner. While the WCJ agreed at first, the Appeals Board shot this argument down, highlighting the continuous nature of the caregiving services. This was not one-time care that was then abandoned; it was (and remains) a process of care. Even the defendant’s lawyers conceded that this area of law is hardly clear.

Second, they claimed that because Mota is not a licensed vocational nurse they didn’t have to pay for the care she provided. (In fact, while not licensed, Ms. Mota had obtained significant training for the more complex tasks she performed.)

Here, again, though, they had to concede that in numerous instances courts have authorized non-experts, including close family members to provide such care. The defense acknowledged such cases, and even cited some of them, albeit to claim that they all involved exceptional circumstances not present in Mota’s case.

Third, and most off-track, they sought to avoid paying Mota because she is an undocumented immigrant.

One might be inclined to ask, what do her immigration papers have to do with her right to reimbursement for medical benefits in a workers’ compensation matter? A fair question, and one for which Allgreen has a rather implausible answer: according to Allgreen, Ms. Mota, by providing nursing care, became an employee of Allgreen’s, and according to the federal Immigration Reform and Control Act of 1986, it is illegal to hire undocumented immigrants. Hence, the argument goes, they do not have to pay medical benefits.

But of course reimbursement for medical benefits does not constitute employment by any stretch of the imagination. By Allgreen’s logic, every doctor that gives care in a workers’ comp case would become an employee of every injured worker’s employer. Doctors’ offices would be overrun with W-2 forms.

The truth is that this argument is just the latest in a series of attempts by the workers’ comp defense bar to drag immigration laws into the domain of workers’ compensation. Unfortunately, they have had some success in denying benefits such as temporary disability and vocational rehabilitation. Now emboldened, they are now trying to expand this campaign beyond employment to medical expenses.

The effort has no justification. Immigration and Customs Enforcement is a mammoth federal agency, which in 2011 commanded well over $5,000,000,000 of our tax dollars. Its operating mission does not in any way require the conscription of workers’ comp judges in California. And there is no reason for the rest of us to respect the repeated perverse attempts by the defense bar to exploit irrelevant areas of law in order to avoid paying their bills.

Monday, March 12, 2012

Anti-SLAPP: New California Appellate Decision Reinforces the Need to Exhaust Administrative Remedies

In Nesson v. Northern Inyo County Local Hospital District, (4th Dist., Div 2, March 6, 2012) Case No. SICVCV1049815, the California Court of Appeal affirmed the trial court’s grant of the hospital’s anti-SLAPP motion and held that (1) the trial court properly found that all causes of action arose from alleged actions and conduct by the hospital during medical peer review that qualify as official proceedings under the anti-SLAPP statute; (2) all causes of action were barred due to the plaintiff's failure to exhaust his administrative and judicial remedies before filing suit; and (3) even if the plaintiff had exhausted his remedies, he failed to meet his burden to establish a probability he would prevail on any of his claims.

Plaintiff John Nesson, a radiologist, sued defendant Northern Inyo County Local Hospital District (hospital) after the medical executive committee (MEC) summarily suspended his medical staff privileges and the Hospital terminated his contract to provide radiology services because the hospital deemed that it would be impossible for Nesson to comply with the requirements of his contract with the hospital without the medical staff privileges. Nesson filed a complaint against the hospital for breach of contract, breach of the covenant of good faith and fair dealing, violation of Health and Safety Code section 1278.5, violation of the Unruh Civil Rights Act, and violation of the Fair Employment and Housing Act. In response, the hospital filed a special motion to strike pursuant to the Code of Civil Procedure section 425.16 (hereinafter, “the anti-SLAPP statute”). The Legislature enacted the anti-SLAPP statute to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights.

The anti-SLAPP statute establishes a two-step procedure. First, the defendant is required to show that the cause of action arises from protected activity, i.e., activity by the defendant in furtherance of his constitutional right of petition or free speech. Statements and activity made in connection with an “official proceeding authorized by law” fall within the scope of the first prong of anti-SLAPP. In this case, the court held that the adverse employment actions were protected because the termination of employment and privileges arose from the hospital’s peer review process, which is an official proceeding required by a comprehensive statutory scheme and subject to review by the courts in administrative mandamus proceedings.

Second, if the defendant meets the initial burden, then the burden shifts to plaintiff to demonstrate a reasonable probability of prevailing on the merits of his cause of action. The court emphasized that a plaintiff, who has failed to exhaust his administrative and judicial remedies, cannot prove a probability of prevailing on any claim, irrespective of how it is labeled. More specifically the court outlined specific steps that a physician, who is a victim of faulty medical peer review, must take to rectify the situation prior to filing a lawsuit. First, the physician must fully exhaust his internal hospital administrative remedies. Second, if the physician has fully exhausted his administrative remedies at the hospital but has failed to overturn the hospital’s peer review negative disciplinary action against him, the physician is required to petition for issuance of a writ of mandamus under Code of Civil Procedure section 1094.5. Only after the physician has obtained a writ of mandamus setting aside the hospital’s discipline of him, may the aggrieved physician file a civil lawsuit asserting state law claims against the hospital and its associated defendants. Here, the court held Nesson’s claims are barred because he failed to exhaust his administrative and judicial remedies. He did not request a timely hearing as required by the hospital bylaws; refused to cooperate with the evaluations requested by the peer review committee; refused to cooperate with the investigation undertaken by the medical staff; and did not file a petition for writ of mandamus to set aside the hospital’s adverse actions.

Accommodation and Termination

One of the first questions confronted by every worker who suffers an injury on the job is What can my employer do to me now?  In addition to the pains of the injury itself, there is the deep wound of dampened financial prospects from possible job loss.

The basic answer is as simple as it is slippery:  On the one hand, your employer cannot punish you because you have filed a claim for a work-related injury. And this applies not just to firing you, but to any discriminatory action.

To discriminate against a work comp claimant is not only prohibited; it is a criminal offense under Labor Code Section 132A.

This sounds pretty good for workers, but the second point cuts in the exact opposite direction: by law employers do not have to accommodate any work restrictions. That is, while punitive termination is strictly forbidden and harshly penalized, “letting go” of a worker who “can no longer perform her job duties” is quite alright. Indeed, it’s done all the time. As long as the treatment is not worse simply because the employee suffered a work-related injury.

Discrimination against an injured worker means more than just some detriment. The legal problem comes when the employee is targeted because the injury occurred at work.

A few moments’ reflection should reveal the depth of this problem.

Recently, the Workers’ Compensation Appeals Board has had to confront this issue in the context of a police officer who suffered a work injury to his psyche. Charles Kesecker, a police sergeant at Marin Community College, had an unfortunate series of work troubles in the form of gastroesophageal reflux disease, a wounded elbow, hypertension, and psychological trauma. His experiences in the line of duty caused his problems.

The workers’ comp system worked as it should, and gave Kesecker medical treatment and permanent disability awards for his injuries. Kesecker took a psychological test, passed, and returned to work.

Things went well for two years, until Kesecker’s supervisors forced him to take another psychological exam. There was no standard practice to give such exams along these lines; they selected Kesecker in particular for this exam. This time around, the examiner deemed him unable to continue employment and his employer terminated him on these grounds.

Kesecker took legal action, with initial success. The workers’ comp judge deemed the employer’s act to be punitive—a good deal beyond standard failure to accommodate, a way of singling out Kesecker because he had a permanent disability award.

Strangely enough, the Workers’ Compensation Appeals Board did not agree and reversed the comp judge. They stated that even though Kesecker was deliberately given a psychological exam, the old distinction holds:  that is, he was not targeted because his psychological trauma arose in the line of duty, but because he suffered psychological trauma. A worker who suffered from non-work causes might be treated the same way, or at least Kesecker had not adequately shown otherwise.

Kesecker was undoubtedly targeted because of his work-related psychological injury.  His employer just maintains that he was targeted because of the injury itself, rather than the fact that Kesecker suffered it in the line of duty.

If that disturbs you, you are not alone. Employers seem to have an easy job of getting rid of their injured employees, and if the Workers' Compensation Appeals Board’s reasoning triumphs bosses will be able to act with impunity—assuming they aren’t caught on record stating, “Hey, let’s fire this guy for filing a work comp claim!”

However, the matter may not be done yet—Kesecker’s attorney has petitioned the California Court of Appeals to hear the case, and is expected to find out on March 6th whether or not they will grant review. Whatever they decide, the question of punitive termination versus supposedly innocuous “layoffs” due to “inability to accommodate”—the end of that question is not yet.

Thursday, March 1, 2012

Lactation Accommodations for Nursing Mothers in the Workplace

Child-bearing is essential to our society. While there have been significant advances towards gender equality, unfortunately, discrimination against women because of pregnancy continues to be a common practice in society, particularly in the workplace. One common form of discrimination is failure to accommodate nursing mothers’ right to break time to express milk for their infant child.

Health professionals and public health officials promote breastfeeding to improve infant health. Both the state and federal legislatures have recognized this and enacted laws in response to promote lactation accommodations. On March 23, 2010, Patient Protection and Affordable Care Act (“PPACA”) was signed into law and amended Section 7 of the Fair Labor Standards Act (FLSA) to require employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth…” and “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public…” The accommodation rights under FLSA were modeled after California Labor Code sections 1030 and 1031 which were adopted in 2001.

However, one major difference exists between the two legislations. Under the California Labor Codes, employers can opt out of lactation accommodations by establishing undue hardship, such as inability to continue functioning as a business. Under FSLA, only employers with fewer than 50 employees are not subject to the accommodation requirements if compliance with the provision would impose an undue hardship.  Additionally, FLSA’s accommodation rights are limited to 1 year after the child’s birth whereas accommodation rights under the California Labor Codes are not restricted to the 1 year period.  This is a significant distinction for a mother seeking accommodation more than 1 year after the birth of her child.  

Both section 7 of the FLSA, and California Labor Code sections 1030 and 1031 have reporting mechanisms that allow employees to report on employers who are violating their lactation accommodations.  The Wage and Hour Division (WHD) of the Department of Labor administers and enforces FLSA. If you would like to file a complaint with the WHD because you believe your employer has violated the break time for nursing mothers requirement under the FLSA, you should call the toll-free WHD number 1-866-487-9243.  The Bureau of Field Enforcement (BOFE) of the Division of Labor Standard Enforcement administers and enforces Labor Code sections 1030 and 1031. To file a claim visit

It is important to note that lactation accommodation violations by employers are often coupled with other employee rights violations that are protected by laws such as the Pregnancy Discrimination Act, Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act, the California Family Rights Act, and the Fair Employment and Housing Act. Contact our experienced employment law team to discuss your options.