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2/1/2012--Service of Settlement Documents on Lien Claimants: A Cautionary Tale
In a WCAB panel decision (Eustolia Montalvo, ADJ 3545068), not citable in appellate proceedings, the defendant may have failed to serve a Compromise and Release on a lien claimant. The defendant then sought adjudication of the lien claim at a lien conference. When the lien claimant did not appear, a Notice of Intention to Dismiss the lien issued. Lien claimant did not file an objection prior to the expiration of the time to respond to the Notice of Intention, although a late objection was filed. Prior to receipt of the objection, and subsequent the timeframe for the Notice of Intention, the WCJ issued an Order of Dismissal. The lien claimant appealed.
Lien claimant asserted that he had not been served pursuant to 8 CCR §10886 with the Compromise and Release. Accordingly, he claimed that the failure of the defendant to properly serve the C&R failed to give him adequate knowledge that his personal appearance was required at the subsequent hearing, identified only as a trial in the hearing notice. The defendant did not produce proof of service to demonstrate that the C&R had been served, or answer the lien claimant’s petition for reconsideration.
The WCAB granted reconsideration and remanded the case back to the trial level ordering the defendant to produce proper proof of service under 8 CCR §10886, or be sanctioned $500.00. Conversely, if the defendant could produce the required proof of service, the WCAB directed the trial judge to sanction the lien claimant $500.00 for failure to appear.
What this means to you
The requirement of §10886 (and §10608) for service of settlement documents (and medical reports) includes all parties and lien claimants. Lien claimants are recognized as parties before the WCAB, entitled to service of settlement documents, and where demanded at the appropriate time, service of all appropriate discoverable items in the medical file.
Failure to appropriately serve settlement documents on all parties, including lien claimants, may result in sanctionable conduct as illustrated here.
Settle a case? Serve everyone. No exceptions.
A copy of the Montalvo decision may be downloaded here.
2/1/2012--GMK Super Lawyers
Each year the publishers of Los Angeles Magazine and Orange Coast Magazine publish their annual list of "Super Lawyers". For 2012, several attorneys from Goldman Magdalin & Krikes have again found themselves distinguished at the top of the profession, as recognized and nominated by their peers.
The process begins with the creation of the candidate pool, which involves both peer nominations and preliminary research by the publisher. The publisher then further researches the peer nominations and evaluates each candidate. Finally, each nominated candidate is peer-reviewed prior to inclusion in the list. This three-step process is designed to create a system of checks and balances that produces the publisher’s opinion of a well-rounded list of attorneys worthy of the Super Lawyer designation.
Goldman Magdalin & Krikes is proud to recognize the inclusion and career achievements of founding partner Paul J. Magdalin, Glen E. Rosenberg, and B. Derek Straatsma.
Paul, Glen, and Derek represent excellence in legal knowledge and practice, effective advocacy, and mentoring within the firm. Each one carries the weight of peer respect and recognition for their integrity, quality of work product, and effective aggressive representation of our client’s interests.
• Paul J. Magdalin may be reached in our Woodland Hills office at magdalin@gmklaw.com 818-755-0444.
• Glen E. Rosenberg may also be reached in our Woodland Hills office at grosenberg@gmklaw.com 818-755-0444.
• B. Derek Straatsma is also part of our Woodland Hills office. He may be reached at dstraatsma@gmklaw.com 818-755-0444.
1/30/2012--WCAB Panel Decision Rejects Applicant's Attorney’s “Outrageous” Interpretation of Defendant's Burden of Proving Existence of Valid MPN
In a recent WCAB panel decision, not citable in appellate proceedings, the Workers’ Compensation Appeals Board soundly rejected the arguments of the applicant’s attorneys, Hinden & Breslavsky, echoed by the WCJ, as imposing burdens on the defendant to prove the existence of a valid MPN which are inconsistent with the provisions of Labor Code §5708-§5709 and the general pragmatic fact gathering informality of WCAB proceedings.
Breanna Clifton (ADJ7660641) suffered an admitted industrial injury to her left knee, left foot and left ankle. The employer had a validly established MPN and provided notice to the applicant of the existence of the MPN when the industrial injury occurred.
The applicant sought treatment through an MPN provider, US HealthWorks. She was referred for orthopedic consultation and a diagnosis was made that her left knee strain was resolved, that she had a “left ankle sprain, rule out ligamentous cartilage injury”. The MPN orthopedist offered the opinion that the applicant "is able to work with the restriction of mostly sitting work".
The applicant then sought treatment with a non-MPN chiropractor to whom she was referred by her attorneys, who found her totally temporarily disabled and recommended various treatment modalities. The applicant sought temporary disability based on the TTD determination of the non-MPN chiropractor.
At trial defendant introduced the MPN notices and contested liability for the non-MPN treatment pursuant to the Valdez case. Applicant contended that the defendant had not met its burden of demonstrating a validly established MPN.
In his opinion on decision, the WCJ determined that the record did not contain sufficient evidence of a properly established MPN and awarded TTD and medical treatment. In the WCJ’s report on reconsideration he asserted that defendant was required, as part of its burden, to offer witnesses to testify that the applicant in fact received the MPN notice as addressed to her, or to obtain a stipulation from the applicant that she received the notice.
The WCAB rejected the WCJ’s rationale, noting that the applicant’s “hypervigilant interpretation” of defendant's burden on this issue is not justified by statute, regulation, or case law. In answering the defendant’s petition for reconsideration, the applicant alleged that there is "a vast and often vague array of requirements for defendant’s evidence that has not been recognized by the [Administrative Director], the Appeals Board, the courts, or the legislature.”
The WCAB held that "a defendant may satisfy its burden of proving it has a properly established and noticed MPN by asserting that it has an approved MPN and requesting judicial notice of the inclusion of its MPN list of approved MPNs on the AD’s Web site, and by offering unrebutted evidence that it provided the required notices".
In short, the WCAB has given useful guidance and an easy to implement procedure for MPN enforcement.
The Board cites the two most important MPN decisions in its discussion of this issue.
Valdez v. Warehouse Demo Services (2011) 76 CCC 330 and 76 CCC 970, which held that once a defendant has properly established a medical provider network the applicant's remedies for disagreement with a provider’s determination is within the MPN second and third opinion process or by following the panel QME process. Failure to do so and self-procuring medical treatment outside the MPN can result in the reports being deemed inadmissible and the defendant is not liable for treatment costs.
Additionally, in Knight v. United Parcel Service (2006) 70 CCC 1423,, the failure of a defendant to provide the required notices regarding the existence of the MPN, that results in a neglect or refusal to provide medical treatment (emphasis added) renders the employer or insurer liable for reasonable medical treatment self procured by the employee.
The panel in Clifton pointed out that, pursuant to the Knight decision, not every violation of an MPN notice requirement constitutes neglect or refusal to provide reasonable medical treatment. The WCJ in this case misstated the law when he said in his report on reconsideration "per Knight, and employer neglects or refuses to provide medical treatment by failing to provide required notices of MPN rights".
• What this means for you
This decision in Clifton provides useful guidance for MPN challenge issues at the trial level. While not officially citable a copy of the decision setting forth the defendant’s reasonable burden will be noted by the WCJ and likely followed.
In the pretrial conference statement the defendant should allege that a properly noticed and valid MPN exists. The defendant should further request judicial notice of the existence of the MPN on the Administrative Director's website.
The defendant should then offer into evidence the MPN notices that were provided to the employee at the establishment of the MPN or on their date of hire and any signed notices of acknowledgment of receipt of those notices. Finally, the defendant should offer into evidence the MPN notice sent to the applicant upon notice of the claim for industrial injury.
Failure to provide required notices at the time of hire, and again at the time of the industrial injury places the defendant back into the Knight analysis to demonstrate that the failure to provide the required notices did not constitute a neglect or refusal to provide reasonable medical treatment; an additional distinction requiring education of the WCJ in accordance with the facts of your case.
A copy of the Clifton decision may be downloaded here.
1/3/2012--New Year Requirements (Reminder)
Employers are also reminded that several new laws become effective on January 1, 2012. These include: payment of health insurance premiums for employees on a pregnancy disability leave; restrictions on the use of credit reports by employers; and a written notice to all new hires stating rates of pay, payday, and other employer and workers’ compensation carrier information. The Labor Commissioner’s office has issued a template for this written notice. It can be found at http://www.dir.ca.gov/dlse/LC_2810.5_Notice.pdf (PDF version) or http://www.dir.ca.gov/dlse/LC_2810.5_Notice.doc (Word version).
See October 14 and October 25 GMK Alerts for additional information on these new requirements.
• NLRA Poster/Election Procedures
IMPORTANT: The NLRB has again extended the beginning date for posting the NLRA poster. The new compliance date is April 30, 2012.
This new date is also the effective date for the NLRB’s final rule which amends its election procedures. These amendments will generally result in elections taking place much more quickly. Legal action and potential legislative action may affect these proposed amendments. Nonetheless, it is a reminder to all employers to be aware of areas of vulnerability that could lead to a union-organizing effort.
• Reporting Time Pay Clarified
In California an employee must be paid “reporting time pay” of at least two (2) and not more than four (4) hours when the employee is furnished less than half of the usual or scheduled day’s work. However, in Aleman v. AirTouch Cellular, the Court of Appeal recently ruled that when a meeting is scheduled for a specific period of time, and the employee is paid for more than half the scheduled time, the employee is not entitled to reporting time pay.
If an employee is asked to report for a meeting of unspecified duration on a day in which he did not expect to work a scheduled or usual shift, the employer is only required to pay the employee the two-hour minimum.
Additionally, in Aleman the court ruled that an employee is only entitled to an additional one hour of pay at minimum wage (the “split shift” premium” when an employee’s work schedule is interrupted by non-paid, non-working periods other than bona fide meal or rest periods) when his/her wages for the day is less than the number of hours worked plus one times the minimum wage.
What this means for you
If employees are required to report to work for a short period of time – such as for a meeting – the time and duration of the meeting (or other reporting) should be scheduled at least far enough in advance to avoid a claim that it was “unscheduled” and the meeting should take at least one-half of the scheduled time for no reporting time payment to be due. If there is no expectation of a scheduled or regular work period (such as when an employee is asked on short notice to report for an individual short meeting of unspecified duration and then is terminated or not otherwise put to work), the employee must be paid the two-hour minimum.
When an employee has attended meetings prior to a workplace injury, on a day they were not scheduled to work, the wages earned for the meeting and/or reporting time pay must be considered in calculating average weekly earnings. If an employee attends a meeting after an injury and while on TTD, this creates a wage loss when they are compensated for the meeting and/or reporting time pay by the employer.
All employers are also reminded to ensure that employees receive at least the minimum wage for all hours worked, and at least a total payment that includes an additional hour at minimum wage when the employee must report to work for a second time.
For assistance with these requirements, please contact GMK employment law attorney Jeanne Flaherty at 818-755-0444 or jflaherty@gmklaw.com.
12/5/2011--NLRB: Protected Concerted Activity and the Use of Social Media
First | Previous | Next | LastAs noted in a previous GMK Alert, employers with a non-unionized workforce generally believe that they need not be concerned with issues involving the National Labor Relations Act (NLRA) and its enforcement agency, the National Labor Relations Board (NLRB). However, the increased use of social media by employees to complain about their employers or raise issues concerning the workplace has resulted in a number of cases before the NLRB filed by employees who are not represented by a union.
Under the NLRA, employers cannot discriminate against or otherwise interfere with an employee’s right to engage in protected concerted activity – basically engaging in conduct with co-workers, or on behalf of co-workers, to improve wages, hours or working conditions. Discussions among employees on these matters will generally fall within this definition. Such conduct is now taking place more often through social media such as Facebook pages, Twitter accounts and YouTube postings.
In August the NLRB’s Acting General Counsel issued a report on these types of cases as guidance to practitioners and human resource professionals. In addition, some recent decisions by NLRB Administrative Law Judges also shed light on how the NLRB views the use of social media by employees and the employers’ response to such use. These cases and report suggest that there will be a finding that an employee has engaged in protected concerted activity when there are discussions with co-workers (such as a Facebook posting and responses) or comments by a single employee that are intended to initiate or induce group action that concerns wages, hours or working conditions, even if the connection to such is minimal. Therefore, any action taken against an employee for engaging in such conduct would presumably be an unfair labor practice. [If the employee comments or postings are “opprobrious” (such as outrageous outbursts, threatening language, or causing a significant work interruption) the employee can lose the Act’s protection. However, this exception is narrowly construed.] Certain inappropriate or offensive conduct on a social media site has been found not to constitute protected concerted activity when it did not relate to terms or conditions of employment or did not seek to involve other employees in employment-related issues. Thus, postings or tweets that are general complaints made to the public or to family and friends may result in lawful action by the employer against the employee.
Furthermore, handbook language that restricts activity protected by the NLRA (or is a response to union activity) can also violate the Act, whether the restriction is explicit or may reasonably be construed to have such an effect. Language that broadly prohibits disrespectful or disparaging comments or other “offensive conduct” would presumably be unlawful. Although certain language might appear to be acceptable (e.g., prohibiting social media use that disregarded the privacy rights of another individual; or prohibiting language that might damage the reputation or goodwill of the employer), the NLRB has stated that, because such language could restrict concerted activity concerning terms and conditions of employment, the language was overbroad.
What this means for you
It is important for all employers to have a policy that restricts personal use of social media during working hours and/or using the employer’s equipment; prohibits harassment or discrimination through the use of social media; and protects the employer’s trade secrets and other confidential information. However, it is also important for the employer to make sure that its policy and practice in this area respect the rights of the employees to engage in protected concerted activity. Language that does not allow employees to discuss among themselves or with others their wages, hours or working conditions, or prohibits any criticism of management or the company should not be used.
For assistance with developing or implementing an appropriate social media policy please contact GMK employment law attorney Jeanne Flaherty at 818-755-0444 or jflaherty@gmklaw.com.
Records 1 to 5 of 172