Court of Appeal Gives Retroactive Effect to Firefighter Injury Presumption

The California Court of Appeal ruled statutory changes to workers' compensation injury presumptions apply to cases pending prior to the change in the statute. In doing so, the Court of Appeal overruled the Workers' Compensation Appeals Board ("WCAB") who refused to apply the presumption to a pending case. This decision could affect the presumptions involved in many workers compensation cases.

The facts of Lozano v. W.C.A.B. are tragic. William Lozano worked as a firefighter for a Department of Defense installation. Lozano was diagnosed with stomach cancer and succumbed to the disease in September of 2007. In November of 2009, Lozano's wife and two young children filed a workers compensation claim alleging the stomach cancer was work related.

On January 1, 2009 the legislature amended the Labor Code so that firefighters like Lozano could take advantage of the cancer presumption. This means the family would not need to prove Lozano's employment caused stomach cancer. Rather, the court would assume the cancer was from his employment and the employer would have to prove the cancer was not job related.

The Agreed Medical Examiner ("AME") concluded Lozano was exposed to carcinogens as part of his work activities. However, he could not conclusively say the carcinogens caused Lozano's cancer. However, if the firefighter cancer presumption applied to Lozano's case, the AME concluded the cancer should be presumed as work related.

The WCAB determined the presumption did not apply to Lozano's case. The WCAB noted Lozano was not a qualifying firefighter under the statute at the time of his death. The WCAB refused to apply the statutory change retroactively because the Legislature did not provide for retroactive application in the statute.

The Second District Court of Appeal reversed the WCAB's decision and held the presumption did apply to Lozano's claim. In general new statutes operate prospectively unless the Legislature clearly indicates otherwise. However, this general rule does not apply to new statutes that simply alter procedural or evidentiary statutes to trials occurring after enactment. Thus, if a new statute alters substantive legal rights, like who is liable for an injury, that statute cannot be applied retroactively. But, if the statute only alters procedural rights, like who has the burden of proof, the statute can be applied retroactively.

Here, the presumption test does not change who is liable for the injury, but rather who has the burden of producing evidence. Making the cancer presumption available to firefighters like Lozano only addresses the procedure to follow, not the substantive legal rights. Thus, the Court of Appeal overruled the WCAB and allowed Lozano's heirs to retroactively apply the cancer presumption.

This case should help a great number of public safety employees in the future. The instant statute only dealt with firefighters working at Department of Defense facilities. But the court's logic could be applied to any new statute which changes the evidentiary burdens for workers compensation claims. Thus, when the legislature changes the statute to help more people, any pending claims can take advantage of that new rule.

Sacramento Business Journal Interviews David P. Mastagni

The Sacramento Business Journal interviewed leaders from the top Sacramento firms to discuss what litigators see as challenges in the profession.  The article noted:

According to Mastagni Holstedt managing partner David Mastagni, the biggest challenge facing litigators is "Staying on game (from) one litigation setting to another without breaks while being able to shift from one set of facts and laws to another amidst being able to change forums and jurisdictions."

The Journal recently listed Mastagni Holstedt as the top litigation firm.

Mastagni Holstedt Ranked #1 Litigation Firm by Sacramento Business Journal

The Sacramento Business Journal ranked Mastagni Holstedt the #1 litigation law firm.  The list ranks the top twenty-five law firms in Sacramento metro by number of litigators.

According to Mastagni Holstedt Founder, David P. Mastagni, "We are very pleased to have the growth and success of our litigation practices recognized in this way.  As the firm grows in Southern California, it is important to us to remain the leader in Sacramento litigating on behalf of employees, public safety labor associations, and individual plaintiffs, as well as class and mass actions."

State Legislature Approves Workers' Compensation Bills Benefiting Peace Officers

Both houses of the state legislature passed two workers' compensation bills benefiting peace officers. The legislature passed AB 2052, expanding the classes of peace officers eligible for presumptions. Also, the legislature passed AB 2378, declaring that salary continuation payments to peace officers under Labor Code 4850 do not count towards the two-year cap on temporary disability benefits. This would allow for two full years of temporary disability payments to peace officers in addition to the one year of 4850 benefits. The bills will now go to Governor Jerry Brown to sign, approve without signing, or veto.

Mastagni Attorneys Score a Victory for Common Sense and Fairness

In a recent decision, Daniel Young v. Workers' Compensation Appeals Board and County of Butte, the Third District Court of Appeals ("Court") held that an injury sustained by an employee as part of a regimen to satisfy employer physical fitness expectations constitutes a compensable industrial injury under California Labor Code section 3600(a)(9). Mastagni attorney Craig Johnsen argued the appeal before the Court. Mr. Johnsen and Matthew Peng collaborated on the appellate brief. Richard Weyuker of Cuneo, Ward, Black, & Missler argued on behalf of the employer. The case has been certified for publication.

Facts

Sergeant Daniel Young began his employment with the Butte County Sheriff's Department in 1995. In 1999, he was promoted to correctional sergeant. In 2004, the Department issued an order requiring all correctional officers, including correctional sergeants, to "maintain themselves in good physical condition so that they can handle the strenuous physical contacts often required of a law enforcement officer."

Sergeant Young took the requirement seriously, and he engaged in a regular physical fitness regimen during his off-duty hours. On January 9, 2012, Sergeant Young was performing his customary warm-up routine prior to his workout, which included jumping jacks. During one of the jumping jacks, Sergeant Young came down and experienced an extreme stabbing pain in his left knee. When Sergeant Young reported the injury, the Department took the position that the injury was not compensable under workers' compensation because it did not occur while Sergeant Young was engaged in his usual duties as a correctional sergeant.

At the trial court level, the workers' compensation judge disagreed with the Departments' position, concluding that Sergeant Young's injury was compensable under the circumstances. The Department requested reconsideration by the Workers' Compensation Appeals Board ("WCAB"). The WCAB sided with the Department and found Sergeant Young's injury was not compensable. Our appeal to the Court followed the WCAB ruling.

District Court of Appeal Analysis and Holding

In analyzing the facts of the case, the court relied upon the two-pronged Ezzy test. Under that test, the "reasonable expectancy" of employment is satisfied where: (1) the employee subjectively believes participation in the injury-producing event is expected by the employer; and, (2) the employee's belief is objectively reasonable.

The Court recognized that the first prong of the test is easily satisfied. Typically, subjective belief is established simply through the credible testimony of the injured employee. Since Sergeant Young had competently testified at trial as to his subjective belief, the Court placed no focus on that element, finding Sergeant Young's testimony "more than sufficient to satisfy that prong."

In asserting that Sergeant Young's case failed to satisfy the objective prong of the Ezzy test, the Department primarily relied on the argument that Sergeant Young's subjective belief that engaging in jumping jacks as part of a home exercise routine was not objectively reasonable because the belief was merely based upon a "general obligation" to maintain good physical fitness. The Court was not persuaded by the argument.

In dismissing the Department's argument, the Court pointed to the departmental order requiring correctional sergeants to maintain a state of good physical conditioning. The Court noted that the Department did not provide exercise opportunities during work hours, nor did the Department's directive offer any guidance as to what types of exercises and/or other physical activities would be considered appropriate in the furtherance of maintaining good physical condition. Further, the Court found it objectively reasonable that the Department would have expected Sergeant Young to perform a warm-up routine as part of his exercise program. Consequently, as the injury at issue satisfied both prongs of the Ezzy test, and there was substantial nexus between the Department's physical fitness requirement and Sergeant Young's specific off-duty activity which resulted in his knee injury, the Court ruled that the injury was compensable as an industrial injury.

Import of Court's Ruling

Although the Young decision applies specifically to a law enforcement employee, there are many other types of jobs that require workers to maintain an adequate level of physical fitness in order to satisfactorily perform necessary job functions. So, the ruling should have broad application in appropriate contexts. It is clearly in the employer's best interest for employees in any type of occupation or profession to make healthy life choices, which includes adequate exercise.

It should be noted that the Court's ruling may have been different had Sergeant Young been engaging in a more high risk activity, such as playing basketball, rollerblading, or kayaking when he was injured. But, since the Court observed that jumping jacks are generally considered to be a "traditional, low-risk and widely performed warm-up calisthenic", it had no difficulty finding the Young decision should not be interpreted to suggest that "anything goes" as long as the activity promotes fitness. In the end, common sense must prevail.

Quirky Physician Predesignation Requirement to Be Lifted

An effective way to take some control over your workers’ compensation claim is to predesignate your personal physician to provide treatment in the event you sustain an industrial injury. Absent a predesignation, you will be limited to physicians within the employer’s medical provider network, which can be wholly frustrating if not a little dangerous.

Currently, an employee is not eligible to predesignate a personal physician unless the employer provides non-occupational group health coverage, whether or not the employee participates in the coverage. That odd provision in the workers’ compensation regulations will be deleted effective July 1, 2014. As of that date, predesignation will be an available option for an employee with non-occupational health care coverage regardless of whether the employer offers  medical coverage to employees.

Thus, as of July 1, 2014, in order to make an effective predesignation election, you must: (1) provide your employer with notice of your predesignation prior to industrial injury; (2) actually possess health care coverage at the time of the injury; and, (3) obtain your personal physician’s agreement to the predesignation before the injury occurs. 8 CCR § 9780.1(a)(1)-(3).

The Division of Workers’ Compensation provides an optional predesignation form (DWC Form 9783) which can be used to provide notice of the predesignation and to evidence your physician’s agreement to the predesignation. The forms may be downloaded from http://www.dir.ca.gov/dwc/forms.html, or may be obtained by calling (800) 794-6900. (Caveat: Be sure to only use forms with 2014 revision date.)

Mastagni Grows to Third Largest Law Firm in Sacramento

According to the Sacramento Business Journal, Mastagni, Hosltedt, Amick, Miller & Johnsen is now the third largest law firm in Sacramento.  The firm is "very pleased and proud to be ranked third in the greater Sacramento area," according to firm founder David P. Mastagni. The firm stands out among other large Sacramento firms as the only firm dedicated to representing working people and their labor associations. The firm ranked as Sacramento's fifth largest firm last year.