BulletinAt Full March

March 22, 20190

Boasting Mardi Gras, Ash Wednesday, International Women’s Day, Daylight Savings, St. Patrick’s Day, March Madness, Purim, and the Vernal Equinox, March is an extremely busy time of year. At Mullen & Filippi and across the industry we’re all making use of that extra hour of daylight.  In the spirit of St. Patrick’s Day, we hope the road rises up to meet you and the wind is always at the back in all of your endeavors.  We’ll be doing our part to keep your claims from costing you a pot of gold.    


The Council of Self-Insured Public Agencies will be presenting its annual Spring Educational Seminar in Southern California on March 28, 2019 in Costa Mesa and in Northern California on April 11, 2019 in Concord.  The seminar will include a presentation on Catastrophic Brain Injuries, the ins and outs of the Subsequent Injury Benefit Trust Fund, CMS/Department of the Treasury Notifications and Collections, and will also include the always informative and entertaining Case Law update presented by Anne Hernandez, Managing Senior Partner of our Santa Rosa office.  Mark your calendars, and please reach out to Mullen & Filippi if you would like to attend.  


Transportation company Uber Technologies, which allows customers to hail rides from drivers directly through the use of a phone or computer application, recently reached a $20,000,000 settlement with a class of 13,600 drivers who claimed they were wrongly classified as independent contractors, according to filings with the Northern California Federal District Court.  The drivers had alleged that the ride-sharing model wrongly denied them benefits otherwise owing to employees, including a minimum wage, overtime pay, sick leave, and workers’ compensation benefits.  Prior to this settlement, there had been an earlier proposed settlement for upwards of $84,000,000 that the Judge had rejected as unfair, and there were nearly 400,000 drivers excluded from the settlement who were found bound to arbitration clauses by the U.S. 9th Circuit Court of Appeals. 

Nothing in the settlement requires Uber to re-classify its drivers as employees and the issue will likely end up litigated again in other cases before other courts.  Similarly, Lyft also reached a settlement with its drivers in 2017 for $27,000,000 that did not require Lyft to re-classify its drivers as employees.

The Supreme Court in the case of Dynamex West Operations v. Superior Court, set forth a simplified “ABC Test” to determine whether providers of services were employees or independent contractors that looked to whether A) the worker is free from the control and direction of the hiring entity; B) the worker performs work that is outside of the usual business conducted by the hiring entity; and C) the worker customarily engages in an independent occupation or trade providing the services in question.  Two dueling Assembly Bills would seek to clarify the test for determining whether a worker is an employee.  AB 5, introduced on December 3, 2018 by Assemblywoman Gonzales (D-San Diego) would state the intent of the Legislature to codify the decision in Dynamex and clarify its application, and cites the misclassification of workers as a significant factor in the erosion of the middle class and the rise of income inequality.  AB 71, introduced by Assembly Members Melendez (R-Lake Elsinore) and Kiley (R-Rocklin), would instead change existing law on the definition of an independent contractor from the simplified ABC Test and back to the multi-factor test set forth by the case of S.G. Borello & Sons, Inc. v. Department of Industrial Relations


On March 11, 2019 former WCAB Commissioner Frank Brass passed away.  Commissioner Brass served under three governors, having been appointed in 2001, 2008, and 2014.  Commissioner Brass represented both injured workers and employers in his time in private practice and was respected throughout the community for his impartial and well-reasoned decisions. 


Linda Bryan, the Managing Associate Partner of our Orange office, recently obtained a great result at Trial, had the decision upheld on Petition for Reconsideration, and successfully resisted a Petition for Writ of Review to the Court of Appeal for the Fourth Appellate District.  In the case, now published as Karazi v. Mitsubishi Electric America, Inc. (2018), 84 Cal. Comp. Cases 38, which involved a 1997 date of injury, the parties had stipulated to 92% permanent disability, but applicant had sought a finding of permanent and total disability based on the LeBoeuf case and Labor Code 4662.  The Trial Judge, after a four-day Trial, issued a Findings, Award, and Order that found that applicant was not unemployable solely due to the industrial injury, commented on applicant’s credibility, and noted that applicant’s presentation indicated malingering.  The WCJ rejected the reporting of applicant’s vocational expert which had indicated that applicant was unemployable solely due to the industrial injury and medication used to treat the industrial injury, finding the reporting was not substantial evidence.  Ms. Bryan’s expert use of the record in her briefs and her perseverance during a grueling four-day Trial led to a fantastic result for her client. 


The Case Briefs section of our website is a great resource as to case law and statutory interpretation in workers’ compensation and provides practice pointers, insights into recent cases, and updates on changes in the law.  There are three additions in March to our already robust and informative bank of articles on legal developments in workers’ compensation.  In one of the articles, Managing Associate Partner Peter Golden of our San Diego office addresses the viability of Kite arguments used by applicants’ attorneys to increase overall disability, in light of the language and direction of the recent Fitzpatrick Court of Appeal decision.  In another article Associate Attorney Christopher Philippides of our Sacramento office comments on the litigation that has ensued after SB 863 reduced the indemnity available to injured workers for compensable consequence psychiatric, sleep dysfunction, and sexual dysfunction injuries and discusses the exceptions to the general prohibition against such “add-on” disability.  The third article is by Senior Counsel Wesley Liu of our Sacramento office, who discusses the various ways the proper rate of pay for temporary disability is determined under Labor Code 4653 and Labor Code 4453(c), and highlights the rulings in cases where applicant has dual employment, irregular employment, or seasonal/temporary employment. 

Please head to https://www.mulfil.com/case-briefs/ to give them a read.

This Bulletin was written by Jim Cotter, Associate Partner in our Oakland office.

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