LexisNexis Publishes New Book on California E-Discovery and Evidence
“E-Discovery” – the discovery of documents and information stored on computers and electronic media – is the single hottest topic in litigation today – and will become even hotter in California as a result of 2009 legislation that is already in effect.
Matthew Bender Practice Guide: California E-Discovery and Evidence can be purchased at the LexisNexis Store by clicking here.
Matthew Bender Practice Guide: California E-Discovery and Evidence is an exciting new one-volume practice guide that presents detailed, step by step coverage of the use of electronically stored information (ESI) in California state court litigation. It fully incorporates California's new Electronic Discovery Act (effective 6/29/2009) and implementing rules of court. It discusses the discovery of ESI ("e-discovery"), including detailed checklists, discussion, practice tips, and sample California specific forms. It includes a discussion of data storage and other technical issues relevant to e discovery, with a glossary of technical terms. This publication is the only one of its kind available for California e-discovery and is a "must" for all attorneys involved in e-discovery under the California Electronic Discovery Act.
Michael F. Kelleher currently is vice president and general counsel of DS-IQ, a technology company. Until very recently, he was a partner in the San Francisco office of Folger Levin & Kahn LLP, where he practiced complex commercial litigation, specializing in the litigation of technology issues, including e-discovery. Mike has a strong technical background in addition to his legal experience. In college he studied computer programming and did database work. Subsequently, he served as a naval officer on board a nuclear submarine, including service as Reactor Controls Officer and Communications Officer.
As a litigator, Mike frequently applied his engineering and science background to the litigation of e-discovery issues, including the unfair competition case of PeopleSoft v. Oracle, which involved over 10 million pages of ESI. In trade secret cases, he has also litigated spoliation claims and expert forensic recovery of deleted electronic data.
Mike frequently writes and speaks on e-discovery and litigation technology issues. His technical background and litigation experience make him uniquely qualified to discuss the legal and technical aspects of e-discovery, and the impact of the California Electronic Discovery Act.
Chapters included in: Matthew Bender Practice Guide: California E-Discovery and Evidence
Master Checklist for E-Discovery
Ch. 1, Understanding Electronic Evidence
Ch. 2, Governing Law In Electronic Discovery
Ch. 3, Ethical Issues For Attorneys In E-Discovery
Ch. 4, Planning E-Discovery
Ch. 5, Initial Procedures In E-DiscoveryNotice, Document Preservation, Meeting and Conferring, and Case Management Conference
Ch. 6, Demanding Production of Electronically Stored Information In California Court
Ch. 7, Obtaining Injunction to Protect Against Destruction of Electronic Evidence Pending Discovery
Ch. 8, Responding To Electronic Discovery Demands In California Court
Ch. 9, Gathering and Producing Electronically Stored Information
Ch. 10, Opposing Demands for Production of Electronic Evidence In California Court
Ch. 11, Seeking or Opposing Protective Order
Ch. 12, Obtaining or Opposing Motion to Compel
Ch. 13, Seeking or Opposing Sanctions For Noncompliance
Ch. 14, Discovery of Electronically Stored Information Residing In Foreign Jurisdictions
Ch. 15, Admissibility of Electronic Evidence at Trial
Ch. 16, Establishing Best Practices Regarding Electronically Stored Information
December 2009 Updates for Larson’s Workers’ Compensation Law
The December 2009 updates for Larson's Workers' Compensation Law will ship soon to subscribers.
To order this publication, click here.
Ch. 5, Acts of God and Exposure
Ch. 7, Positional and Neutral Risks
Ch. 9, Risks Personal to the Employee
Ch. 25, Traveling Employees
Ch. 54, Occupational Disease: The Black Lung Act
Ch. 63, Deliberate Avoidance of Employment Relation
Ch. 95, Rehabilitation
Acts of God and Exposure. As our economy shifted during the past century and a half from one in which a substantial number of workers performed their labor outdoors in agricultural and other associated activities to an economy where work was more often concentrated in manufacturing facilities, offices, retail space, and other indoor settings, there has been an overall reduction in injuries associated with lightning, windstorms, freezing, sunstroke, and other acts of God. Nevertheless, the discussion contained in Chapter 5, dealing with acts of God and exposure, is important in that it helps lay the foundation for three alternative tests of workers' compensation causation: the increased risk test, the actual risk test, and the positional risk text. The chapter has been revised and updated. Recent cases follow historic patterns. Thus, in one recent decision from North Carolina, Heatherly v. Hollingsworth Co., Inc., 189 N.C. App. 398; 658 S.E.2d 30 (2008), the state appellate court held that the N.C. Industrial Commission erred when it applied the positional risk test in determining the compensability of a claim involving an employee struck by lightning as he discussed the threatening weather situation with superiors. The employee had retreated to an unfinished garage that had no doors and was talking on a landline. The North Carolina court indicated that the appropriate issue was whether the danger to which the employee was subjected was one that was incident to the employment, or was it merely one to which the public generally, in that neighborhood, were subjected. The case was remanded for such a determination. See Ch. 5, § 5.01 n.9.1.
Positional and Neutral Risks. A minority of jurisdictions make awards whenever the injury occurred because the employment required the worker to occupy what turned out to be a place of danger. Under this "positional" risk, or "but-for" test, the need to establish a causal relationship between in employment and the injury is relaxed or even eliminated. The majority rule, however, is that the employment must in some sense increase the worker's risk of injury. Chapter 7 has been revised as well, bringing up to date this discussion. For example, in Chappell v. Wal-Mart Stores, Inc., 2009 Ohio 542, where a cashier felt ill, decided to go to the restroom, and passed out and fell to the floor before she reached the rest area, an Ohio court agreed that there was no employment-related explanation to explain the fall. Proximity to the job was insufficient. See Ch. 7, § 7.04[b] n.33.2. Representative of other cases where courts have refused to follow the positional risk rule, but have nevertheless found an increased risk of injury is a case decided earlier this summer in Illinois, Restaurant Dev. Group v. Oh, 2009 Ill. App. LEXIS 407 (June 16, 2009), in which a bartender working near the front of a restaurant's large glass window sustained gunshot wounds during a gang shootout. Evidence that the restaurant was located in a high crime area, that the bartender worked late at night, and that there had been a history of gunfire in the neighborhood was sufficient to establish that the bartender faced an increased risk of injury. See Ch. 7, § 7.01 n.38.2. Unexplained deaths can be particularly problematic for the courts. Many states employ some sort of presumption, that unwitnessed deaths (or injuries) are presumed to have arisen from the employment. That presumption can be rebutted, however, as was the case in a recent New York decision, Matter of Ruper v. Transportation Sys. of W. N.Y., 58 A.D.3d 930, 870 N.Y.S.2d 623 (2009). Claimant's husband, a tractor-trailer driver, had arrived for work at approximately 11:30 A.M. and was assigned to drive an empty trailer to West Virginia. Hours passed and no one heard from him. A search ensued and decedent's body was found slumped against a flatbed trailer in the employer's parking lot at approximately 4:45 P.M. A Workers' Compensation Law Judge awarded benefits, finding that the death was unwitnessed and the employer did not sufficiently rebut the presumption contained in N.Y. Workers' Comp. Law § 21. On review, the Workers' Compensation Board reversed, based on its determination that the employer had rebutted the presumption. Claimant appealed. The appellate court noted that the employer presented decedent's death certificate and the results of an autopsy, both of which attributed his death solely to arteriosclerotic coronary artery disease. The employer also submitted the report and testimony of a cardiologist who concluded that decedent’s death was not work related but due to a preexisting heart condition. Inasmuch as the record evidence supported the Board's determination that decedent's death was not work related, the appellate court could not disturb it. See Ch. 7, § 7.04 (Digest) n.38.
Risks Personal to the Employee. Chapter 9, which discusses the general rule that Injuries arising out of risks or conditions personal to the claimant do not arise out of the employment unless the employment contributes to the risk or aggravates the injury, has been revised as well. A recent Iowa decision, Benco Mfg. v. Albertsen, 2009 Iowa App. LEXIS 72 ((Iowa Ct. App. Feb 4, 2009), illustrates several of the issues involved in these sorts of cases. In Albertson, the employee had first walked to the employer's cafeteria to get a cappuccino and then walked toward the employer's restroom. After she opened the restroom door she fell backward, striking her head on a concrete wall screening the restroom from the work area. Acknowledging that the state did not follow the positional risk rule, the Iowa court nevertheless approved an award of benefits, finding that the the employment conditions—specifically, the concrete wall—increased the severity of the employee's idiopathic injuries. The claim was, therefore, compensable. See Ch. 9, § 9.01 n.14.1. Decisions in these cases are extremely fact-dependent. Thus, in a Kentucky case, Vacuum Depositing, Inc. v. Dever, 2009 Ky. LEXIS 150 (June 25, 2009), the court determined that the employee's fall was caused by her two-inch high heels and clumsiness, not by a condition of the employment. Similarly, in a Maryland case, Youngblud v. Fallston Supply Co., 180 Md. App. 389, 951 A.2d 118, writ denied, 406 Md. 114, 956 A.2d 203 (2008), the employee, an insulin-dependent diabetic, was denied workers' compensation benefits after he fell down the stairs at work. The court held that the fall was likely due to a hypoglycemic attack and was not brought about by a hazard of the employment. See Ch. 9, § 9.01[d] n.45.1.
Traveling Employees. Where an employer is able to control the conditions of the workplace, such as within a manufacturing facility or an office complex, it is reasonable to burden the employer with the cost of work-related injuries. Where the employee's activities take place at other locations, far outside the control of the employer, the rule is not so strictly applied. An exception applies generally where the employee's work entails travel away from the employer's premises. Such travel is usually considered to be within the course of his or her employment continuously during the trip, except when there is a distinct departure on a personal errand. This rule is discussed in Chapter 25, which has been revised and updated as well. In Houck v. Tarragon Mgmt., 4 So. 3d 73 (Fla. Dist. Ct. App. 2009), one such personal departure is illustrated [See Ch. 25, § 25.03(Digest) n.7. The employer arranged for a property manager to travel to another city to perform some training activities. She was to stay in a company-owned condominium while performing her duties. The manager was killed while crossing the street as she walked to a nightclub several days before her official duties were to begin. The court concluded that her fatal injuries were not sustained within the course and scope of the employment.
Occupational Disease: The Black Lung Act. Chapter 54, which discusses the special federal law providing compensation for coal miners who are disabled or die from pneumoconiosis, has been updated and revised as well. Practitioners should be aware that the definition of a covered ''miner'' includes not only below-ground workers but also other individuals exposed to coal dust who work in coal mine construction or transportation in or around a coal mine. Self-employed truckers, railway workers, barge workers, and carpenters have at various times sought, and sometimes been awarded Black Lung benefits.
Deliberate Avoidance of Employment Relation. At the core of the workers' compensation bargain is the employer-employee relationship. Where that relationship does not exist between the parties, as where there has been a conscious and deliberate effort to substitute an independent contractor relationship for an ordinary contract of employment, workers' compensation law usually acknowledges the desires of the parties and does not offer the burden and protection of the jurisdictions compensation act. Chapter 63, which discusses whether such deliberate substitution is effective to avoid compensation liability, has also been upgraded and revised. In most cases, the actual facts of the relationship control; the legal name and form given it do not. While the law generally acknowledges that parties should be free to designate their working relationships as outside the usual bonds of employment, it must be remembered that society is also a party to the "workers' compensation bargain;" it has an interest in assuring itself that the cost of worker "wear and tear" is fully included in the price of the good or service and not borne disproportionately by the public.
Rehabilitation. Until comparatively recently, the industrial accident problem had two major phases: prevention and cure. In recent years, however, the spotlight has turned to a third: rehabilitation. Chapter 95, which discusses this important concept has been updated and revised. As pointed out within the chapter, the conviction is gradually gaining ground that the compensation job is not done when the immediate wound has been dressed and healed. There remains the task of restoring the person to the maximum usefulness that he or she can attain given the physical impairment. Rehabilitation is usually seen as a special form of restitution.
Complications of Initial Injury. A Georgia appellate court, in City of Atlanta v. Roach, 297 Ga. App. 408, 677 S.E.2d 426 (2009), held that a worker who sustained third-degree burns when he fell asleep using a heating pad to relieve pain in his hip that earlier had been fractured in a work-related auto accident, was not entitled to additional benefits; the second injury was not causally connected to the first. The Board determined that the burn did not result from prescribed medical treatment and was not a natural consequence of the hip injury. See Ch. 10, § 10.02 n.10.
Employer's Conveyance—Airline Employee's Travel on Another Airline Pursuant to Reciprocal Arrangement Did Not Avoid Going and Coming Rule. In a recent decision from Kentucky, Airtran Airways, Inc. v. Fortney, 2009 Ky. App. LEXIS 42 (Ky. Ct. App. Mar. 27, 2009), the court refused to award workers’ compensation death benefits to the widow of an airline employee who was killed in an airline crash as he traveled--free of charge pursuant to a reciprocal “jumpseat” travel agreement--from his Kentucky residence to his post in Atlanta. Evidence suggested that the reciprocal arrangment was widespread in the airline industry and that it benefitted the employee, not the employer. That the employee was flying and not driving made no difference; the "going and coming" rule applied. The court held that the facts in this instance did not fall within the "employer convenience" doctrine. Treatise quoted. See Ch. 15, § 15.02 n.5.1.
Personal Comfort Doctrine—Worker Injured Attempting to Retrieve a Bag of Chips Stuck in Vending Machine Receives Award of Benefits. In Circuit City Stores, Inc. v. Illinois Workers' Comp. Comm'n, 2009 Ill. App. LEXIS 278 (Ill. App. Ct. May 21, 2009), cert. denied, 2009 Ill. App. LEXIS 655 (Ill. App. Ct. July 9, 2009), the court affirmed an award to young male worker, with a preexisting hip condition associated with a baseball injury, who suffered a displaced fracture through the right femoral neck when he attempted to dislodge a bag of Fritos stuck in a vending machine on the employer's premises. The chips were not for his own consumption, but rather had been purchased by a co-worker. Applying the personal comfort doctrine, the arbitrator found a compensable accident and the Commission affirmed, with one member dissenting. The Illinois appellate court affirmed the award of benefits, but on other grounds. Agreeing with the dissenting commissioner who had argued that the personal comfort doctrine should not apply since the worker was not on break nor seeking his own comfort, the appellate court found that the Commission's finding that the worker's injuries arose out of the employment was not contrary to law, at least on other theories. Tracking a line of cases in which the employment had been expanded so as to encompass an employee's actions in aiding others in emergencies, the court indicated that "[w]hat the instant case lacks in urgency, it makes up for in familiarity and collegiality." The court concluded that the Commission could reasonably have found that the worker's manner of assisting the other worker did not cross the line of employment. See Ch. 21, § 21.08 n.1.1.
Delayed-Action Injuries—Health Care Worker's Post-Exposure Protocol is Covered by Workers' Compensation. Continuing a line of cases that generally allow for the recovery of medical benefits where a worker is exposed to blood and other body fluids, yet where there is no actual proof of harm, a Kentucky court recently awarded $700 in medical benefits to a health care worker who was splattered in the face and eye with blood and saline while flushing a patient's I.V. line [Kentucky Employers Safety Assoc., v. Lexington Diagnostic Center, 2009 Ky. LEXIS 80 (Ky. May 21, 2009)]. The worker sought immediate medical attention, at which point the applicable post-exposure protocol required by OSHA was initiated. That protocol required a series of five office visits that included tests for bloodborne pathogens, for a total cost of about $ 700.00. While the carrier paid for the first two visits, and part of the third, it resisted further payment, taking the position that an exposure has the potential to harm but does not constitute an injury until such time as objective medical findings showed it had produced a harmful change in the human organism. The Supreme Court of Kentucky held that being splattered in the face and eye with foreign blood or other potentially infectious material was a traumatic event for the purposes of KRS 342.0011(1) and that the presence of blood in the eye constituted an exposure as defined in 29 CFR 1910.1030(b), which describes a harmful change in the human organism as, among other things, the introduction of foreign blood or potentially infectious material into the worker's body.
Unusualness in Emotional Strain Cases—Emotional Tension Suffered by Arab Office-worker in Period Following Terrorist Attacks on September 11, 2001 Found Not Compensable. In the Matter of Young v. Pentax Precision Instrument Corp., 57 A.D.3d 1323, 870 N.Y.S.2d 151 (2008), a New York appellate court affirmed a determination by the state's Workers' Compensation Board that a claimant failed to establish her claim of mental injury when she alleged that she had been subjected to repeated episodes of harassment after September 11, 2001 because of her Egyptian ethnicity and, as a result, suffered a mental injury. While claimant testified that she was cursed at and struck in the head by one of her coworkers, subjected to offensive anti-Arab cartoons that were placed on a bulletin board, repeatedly ignored and belittled by her supervisor in front of others, and asked by her supervisor if she had turned her family in to the FBI for investigation, the employer’s witnesses presented an entirely different story. The differences in testimony presented credibility issues for the Board to resolve. The appellate court could not weigh the evidence. See Ch. 44, § 44.05 n.19.1.
Damage to Appliance or Prosthesis—Florida Court Affirms Award to Replace Damaged *** Implant. Continuing a recent trend of cases, a Florida appellate court has awarded the cost of replacing an employee’s *** implant that was ruptured during a work-related incident and it refused to apportion a portion of the cost to the employee where medical evidence suggested the age of the implant was a dominant factor in the rupture [Mullins v. 7-Eleven, Inc., 5 So. 3d 35 (Fla. Dist. Ct. App. 2009)]. An independent medical examiner (IME) testified that the work-related accident caused 25% of the partial rupture of the implant, while the remaining 75% was causally-related to the aged or defective condition of the implant. The judge of compensation claims determined the work-related accident was the major contributing cause of the partial rupture of the implant and apportioned 75% of the benefits related to the treatment pursuant to section 440.15(5)(b) of the Florida Statutes. The appellate court determined that the judge's finding that the *** implants were prosthetic devices was correct. Apportionment was not appropriate, however, since the employee did not have a preexisting disease, anomaly, or medical diagnosis; rather, it was her prosthetic *** implants that were alleged to have the preexisting condition of being aged. The court drew an analogy with a hypothetical worker whose glasses are broken in the scope of employment. See Ch. 55, § 55.04 n.5.3.
Mental Stimulus Causing Physical Injury—Security Guard's Panic Attack & Heart Attack Found Compensable. The heart attack of a worker who experienced a “panic attack” after a malfunctioning elevator’s series of “drop and catch” episodes, was found compensable in Speed v. Securitas USA, 989 So. 2d 710 (Fla. Dist. Ct. App. 2008). The claimant worked as a security guard and on the date of the incident was assigned to secure one of the employer's facilities. The elevator in which the claimant was riding malfunctioned, resulting in a series of "drop and catch" episodes. The claimant suffered what he described as a panic attack and reported to a colleague that he felt chest pain. After the chest pain persisted, the claimant went to the hospital and was diagnosed with a mild heart attack. The claimant's independent medical examiner (IME) testified that the major contributing cause of the heart attack was the elevator incident. The employer and carrier denied the claim on the basis that Florida does not allow recovery for "mental-mental" claims. The JCC agreed, finding that on the basis of the claimant's description of experiencing a panic attack, he had sustained a mental or nervous injury that was not compensable. The court of appeal reversed, holding that it was undisputed that the elevator incident, a workplace accident, was the cause of claimant’s heart attack. See Ch. 56, § 56.02 n.23.1.
Employment of Illegal Aliens—Undocumented Worker Uses False Documents to Obtain Work, Still Receives Award of Workers' Compensation Benefits. Consistent with a host of other decisions in recent years, an Illinois appellate court has ruled that undocumented workers in the service of another pursuant to a contract for hire, regardless of immigration status, are "employees" within the meaning of the state's workers' compensation act and accordingly are entitled to receive workers' compensation PTD benefits [Economy Packing Co. v. Illinois Workers' Comp. Comm'n, 387 Ill. App. 3d 283, 327 Ill. Dec. 182, 901 N.E.2d 915 (2008)]. Although the claimant violated the Immigration Reform and Control Act of 1986 (IRCA) by using false documents to obtain a job, nothing barred the award, which was separate and distinct from any continuing violation of the IRCA and did not conflict with immigration policy. See Ch. 66, § 66.03 n.21.
Employee Inability to Get Work Because of Misconduct—Worker's Pretrial Incarceration Does Not Amount to Removing Oneself From the Workforce. In Rogele, Inc. v. Workers' Comp. Appeal Bd. (Mattson), 969 A.2d 634 (Pa. Commw. Ct. 2009), a Pennsylvania court has held that pretrial incarceration on charges that the worker solicited the murder of his spouse did not amount to an abandonment of the workforce; he was presumed innocent until proven guilty. That the worker had been incarcerated without bail in the county jail did not mean the employer could suspend disability benefits payments. See Ch. 84, § 84.04 n.13.2.
Vocational Rehabilitation—Board Should Not Consider Injured Worker as Non-feasible For Rehab and, Therefore, to Compete in Open Market Due to Limited English Skills. A worker sustained injuries to various body parts. Due to his injuries and his inability to read and write English, the workers' compensation judge (WCJ) found him to be non-feasible for vocational rehabilitation and thus permanently totally disabled. The Workers' Compensation Appeals Board affirmed. The employer contended that an employer should not be liable for permanent total disability benefits when an injured worker's inability to participate in rehabilitation is due, in part, to nonindustrial causes. It argued in part that the worker's limited English language skills, virtual illiteracy even in his native Spanish, and his lack of academic training and aptitude should be reflected by providing him with an appropriate partial, rather than total, permanent disability rating. The court of appeals agreed. The employer should only be liable for that portion of the worker's permanent disability that was directly caused by the industrial injuries; the employer was not liable for that portion that was caused by pre-existing nonindustrial factors [Hertz Corp. v. Workers' Comp. Appeals Bd. (Aguilar), 169 Cal. App. 4th 232, 87 Cal. Rptr. 3d 36 (2008), review granted, 91 Cal. Rptr. 3d 515, 203 P.3d 1112 (2009). See Ch. 90, § 90.03 n.1.1.
Average Weekly Wage—Under Florida Statute, Earnings Not Reported to IRS May Not Be Used In AWW Computation. Citing Fast Tract Framing, Inc. v. Caraballo, 994 So. 2d 355 (Fla. 1st DCA 2008), wherein the Florida appellate court held that in order to demonstrate that a claimant's income constitutes "wages," the claimant was required to show that he reported his wages for federal income tax purposes. Claimant had not make such a showing here; his pay was not “wages” for purposes of computing average weekly wage [Centimark Corp. v. Gonzalez, 2009 Fla. App. LEXIS 2303 (Fla. Dist. Ct. App. 2009)]. See Ch. 93, § 93.01[e] n.31.2.
The Exclusiveness Doctrine— RICO Claims Against Employer, Adjuster and Doctors. The 6th Circuit Court of Appeals recently held that the Michigan Worker’s Disability Compensation Act did not preempt plaintiffs' RICO claims that an employer, a claims adjuster and a cadre of doctors had engaged in a pattern of racketeering activity that denied plaintiffs’ workers’ compensation claims. In Brown v. Cassens Transp. Co., 546 F.3d 347 (6th Cir. 2008), plaintiffs, current or former employees, alleged that defendants, the employer and others, employed mail and wire fraud to deny them workers’ compensation benefits under the Michigan Worker's Disability Compensation Act (WDCA), in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), and that defendants' conduct constituted intentional infliction of emotional distress (IIED). Plaintiffs alleged, in relevant part, that under 18 U.S.C.S. § 1964(c) the employer, its claims adjuster, and "cut-off" doctors engaged in a pattern of racketeering activity that denied plaintiffs’ worker's compensation claims. Previously, a divided panel of the 6th Circuit Court had affirmed the district court's dismissal of plaintiffs' RICO claims because plaintiffs had failed to plead detrimental reliance on alleged misrepresentations of defendants. The United States Supreme Court vacated the judgment and remanded for further consideration in light of Bridge v. Phoenix Bond & Indemnity Co., - U.S. -, 128 S. Ct. 2131, 170 L. Ed. 2d 1012 (2008), which held unanimously that a civil-RICO plaintiff did not need to show that it detrimentally relied on the defendant's alleged misrepresentations. On remand, the court determined that the plaintiffs had alleged a sufficient pattern of racketeering activity to withstand defendants’ motion to dismiss. The court also held that the WDCA did not preempt plaintiffs' RICO claims. With regard to plaintiffs’ IIED claims, the court determined that the alleged conduct of defendants could not be deemed sufficiently outrageous under Michigan law to move forward. Wrongful, bad faith termination of benefits, by itself, was not sufficiently outrageous to support an IIED claim. See Ch. 100, § 100.03 n.25.1.
The Exclusiveness Doctrine—Truck Driver's Spoliation of Evidence Action is Not Barred by Exclusivity. In Minto v. J.B. Hunt Transp., Inc., 2009 PA Super 73, 971 A.2d 1280 (2009), a Pennsylvania court held that in as much as the former employee had not sought damages from the employer for physical injuries arising out of and in the course of his employment, but rather had alleged economic damage as a result of the actions of the employer in destroying evidence that could have considerably damaged his product liability case against third parties, the tort claim against the employer was not barred by exclusivity. See Ch. 100, § 100.03 n.28.1.
Retaliatory Discharge—Borrowed Employees Are Protected as Well. A borrowed employee filed a retaliatory discharge action against the borrowing employer, contending that one day after she testified, under thread of subpoena, in a workers’ compensation proceeding filed by one of defendant’s employees, the borrowing employer told her that her services were no longer needed. Defendant contended that plaintiff could not maintain a retaliatory discharge cause of action since she was not defendant’s employee, that plaintiff had never been on defendant’s payroll, that she had not been fired by defendant and was free to work for her employer at any time and at any work. The appellate court observed that all rights and remedies of the Workers' Compensation Act applied to borrowed employees, that a borrowing employer is primarily liable for the payment of a borrowed employee's workers' compensation claim, and that the public policy considerations which led to recognition of an action for retaliatory discharge equally applied to a claim by a borrowed employee against a borrowing employer. Moreover, defendant’s argument ignored the nature of a borrowed-employee relationship. In the context of that relationship, the most severe sanction a borrowing employer could impose was to refuse all further work. In that context, the sanction was tantamount to a discharge [Hester v. Gilster-Mary Lee Corporation, 386 Ill. App. 3d 1104, 899 N.E.2d 589 (2008)]. See Ch. 104, § 104.07 n.19.1.
Firefighter's Rule—Rule Does Not Protect Independent Contractors, Only Owners and Lessees. In Torchik v. Boyce, 121 Ohio St. 3d 440, 2009 Ohio 1248, 905 N.E.2d 17, the Supreme Court of Ohio reversed the state's Court of Appeals and remanded a county deputy sheriff's civil action against a contractor who built an allegedly defective structure. The county deputy sheriff sustained injuries during a police call when the deck steps at a residence collapsed. He had been dispatched to investigate a sounding home burglar alarm. He filed suit against the home-owner and the contractor who built the house and deck. The trial court granted summary judgment to the defendants, finding that the sheriff's claims were barred by the fireman's rule. The court of appeals affirmed. The supreme court reviewed the history and principles of the fireman's rule and found that it was improper to extend it to independent contractors. The contractor's duty of care did not depend on whether a police officer or firefighter's presence was expected. Rather, the contractor's duty was based on the degree of care and foreseeability of injury pursuant to ordinary negligence principles. See Ch. 110, § 110.08 n.6.2.
Third Party Actions—Arizona Court Says Independent Medical Examiner Owes Duty of Reasonable Care. An Arizona court recently held that even absent a formal doctor-patient relationship, a doctor conducting an independent medical examination owes a duty of reasonable care to his or her patient [Ritchie v. Krasner, 2009 Ariz. App. LEXIS 78 (Ariz. Ct. App. Apr. 21, 2009)]. The Court indicated that an IME doctor has a duty "to conform to the legal standard of reasonable conduct in the light of the apparent risk." See Ch. 112, § 112.02[a] n.2.2.
Third Party Actions—Claimant Allowed to Sue Doctor For Unauthorized Release of Medical Information. Somewhat similarly, an Alabama court has held that a workers’ compensation claimant may sue a doctor for unauthorized release of medical information to the employer [Hollander v. Nichols, 2009 Ala. LEXIS 59 (Ala. Mar. 20, 2009)]. Plaintiff was terminated from his employment for allegedly asking the doctor to back date a work-release slip related to a workers' compensation claim he had filed. In the underlying suit against defendants, he asserted that the doctor breach a duty to him by releasing his medical records to his employer without his permission. The court agreed with plaintiff that the doctor and the clinic failed to demonstrate that they were entitled to the exemption-from-liability provision in Ala. Code § 25-5-77(b) with regard to disclosure of the records as there was no evidence indicating that the employer or plaintiff made a written request for the copies to be provided to the employer. Therefore, the trial court erred by granting summary judgment on plaintiff's breach-of-contract claim against those defendants for the alleged unauthorized disclosure of his medical records. The court remanded the case to the trial court for further proceedings. See Ch. 112, § 112.02 n.5.1.
Voluntary Payment of Compensation—Date of "Last Payment" is Date Check is Received, Not Mailed. As to the issue of what “last payment date” controls--the date the check is mailed or the date the check is received, at least one court has held that it is the receipt of payment that controls [Obermiller v. Peak Interest, L.L.C., 277 Neb. 656, 764 N.W.2d 410 (2009)]. The employee filed a workers' compensation claim for additional benefits. The employer contended that the last payment, a check payable to the employee's treating physician, had been mailed on February 7, 2003, and that the employee's claim was accordingly barred. The Supreme Court of Nebraska reversed the trial judge and the review panel, holding that the date the payment is received controls since that date gives the employee a more definitive date for knowing when the statute of limitations begins to run. See Ch. 126, § 126.07 n.3.1 § 126.07 n.3.1.
Attorney's Fees—Florida High Court and Legislature Duel Over Attorney's Fees. In what is easily the most-discussed, most controversial Florida workers’ compensation case in several years, the state’s Supreme Court invalidated the 2003 amendment to § 440.34 related to carrier-paid claimant's attorney's fees [Murray v. Mariner Health, 994 So. 2d 1051, 33 Fla. L. Weekly S 845 (Fla. 2008)]. That 2003 amendment purported to limit such fees to a strict percentage of the benefits secured through the attorney's efforts. The JCC found that Murray's claims were compensable and awarded her $3,244.21 in benefits. The parties agreed that petitioner was entitled to an award of attorney’s fees, but they disputed how to calculate the attorney fee award. Applying the statutory formula found in § 440.34, the JCC awarded Murray’s attorney a fee of $648 [evidence indicated the attorney spent 80 hours on the case]. The First District Court of Appeal affirmed. On further appeal, the Supreme Court reversed. Avoiding constitutional issues and relying instead on standards for construing statutory provisions, the Court held that after the 2003 amendment, § 440.34 was ambiguous. On the one hand, the amended statute required the JCC to base the attorney’s fee on a stated percentage of the benefits secured by the attorney and yet, on the other hand, the JCC was required to award a successful claimant’s attorney a “reasonable attorney fee.” $8 per hour was not reasonable, reasoned the Court. The court remanded the case to the JCC with direction that the JCC award a fee of $16,000 to Murray’s attorney. At the close of the legislative session in 2009, § 440.34 was amended in relevant part, effective July 1, 2009, by the removal of the word "reasonable" from both subsections (1) and (3). The effect of the amendment is to reinstate the attorney's fee limitations found in the 2003 amendment. See Ch. 133, § 133.03 n.26.
Jones Act—Riverboat Casino is Not Vessel in Navigation. Observing that since 2002, the riverboat where the employee worked had been moored and stationary--with the exception of rare tests conducted in compliance with federal regulations--that it was connected to the dock by eight mooring lines, two double-up lines, three fuel hoses, a sewage and water hose, and seven power cables, and that a majority of decisions on the issue had refused to grant vessel in navigation status to moored riverboats, an Indiana appellate court held that the riverboat casino was not a vessel in navigation, that while it was theoretically capable of being in navigation, the actual intention had been to remove the boat from navigation, except in emergency situations [RDI/Caesars Riverboat Casino, Inc. v. Conder, 896 N.E.2d 1172 (Ind. Ct. App. 2008)]. A dealer on a riverboat casino filed a Jones Act claim, contending that she sustained repeated flea bites while working on defendant’s gambling casino riverboat, that she was required to take large doses of steroids for the flea bites, and that the steroids caused her to suffer a heart attack. At issue was whether the riverboat casino was a “vessel in navigation” for purposes of the Jones Act. The dealer contended that the riverboat casino was, in fact, a vessel in navigation, pointi ng out that it was registered with and regularly inspected by the United States Coast Guard, and had its own engines and machinery, as well as navigation, lifesaving, and firefighting equipment. As noted, the court disagreed. See Ch. 146, § 146.02[b] n.16.
Bankruptcy—Uninsured Fund Is Not Entitled to Priority Over General Unsecured Creditors in Employer's Chapter 11 Case. In a recent decision from the Ninth Circuit Court of Appeals, In re Lorber Indus., 564 F.3d 1098 (9th Cir. 2009), the employer had sought and obtained permission to satisfy its workers' compensation obligations by self-insuring, securing its obligations with a letter of credit. It filed a Chapter 11 bankruptcy petition and subsequently defaulted on its workers' compensation obligations. The California Self-Insurers Security Fund (Fund) assumed the employer's liabilities and took over payments of benefits, drawing down the letter of credit until it was exhausted, then making payments directly to injured workers, for which it was entitled to reimbursement under California Labor Code § 3744. The Fund filed an objection to the employer's proposed Chapter 11 Plan, which treated the reimbursement amounts owed to the Fund as a general unsecured claim. The Fund asserted that its reimbursement claim was entitled to priority status under § 507(a)(8)(E)(ii) of the Bankruptcy Code as an excise tax on a transaction that occurred in the three years preceding the bankruptcy petition. The bankruptcy court held that the Fund's claim qualified as an excise tax, but that the transaction giving rise to the tax was the employer's application for self-insurance in 1992. Because the transaction occurred more than three years prior to the bankruptcy petition, the court denied the Fund's claim priority. The 9th Circuit Court affirmed, but on other grounds. It held that the Fund's reimbursement claim did not qualify as an excise tax and accordingly did not address when the transaction giving rise to the tax occurred. See Ch. 150, § 150.01 n.7.
Coordinating Workers' Compensation Benefits With Other Disability Plans—Utah High Court Says Setoff for Social Security Retirement Benefits Is Improper. A worker sustained work-related injuries and was ultimately determined to be permanently totally disabled. The worker separately obtained an award for social security disability benefits. One year later, when he turned 65, the worker's social security disability benefits automatically converted to retirement benefits. The worker challenged the constitutionality of Utah Code Ann. § 34A-2-413(5) which generally provides that after six years of receiving workers' compensation benefits, such benefits are reduced by half of the dollar amount of social security retirement benefits received during the same period. The Supreme Court of Utah agreed with the retired worker [Merrill v. Utah Labor Comm’n, 2009 UT 26, 106 FEP 32]. The court indicated that under the Utah statute, individuals who are over the age of sixty-five and not receiving social security retirement benefits are treated differently than individuals over the age of sixty-five and receiving such benefits. Presumably, the legislature was attempting to account for additional income available to social security retirement recipients. If income was the criterion, however, there was no rational basis to rely only on income from a single source. According to the court, the legislature had singled out injured individuals who had contributed to the economy by working the required number of years to qualify for social security retirement benefits, and punished them by reducing their workers' compensation benefits. Such was not a rational response to the legislature's concerns about maintaining the solvency of the workers' compensation fund or preventing employees from receiving duplicate benefits. The supreme court distinguished Richardson v. Belcher, 404 U.S. 78, where the highest court in our land held that it was constitutional to offset the receipt of social security disability benefits from workers’ compensation benefits because the two had the same purpose of compensating for disability. The Utah court indicated Richardson was inapposite because workers’ compensation benefits and social security retirement benefits are not both disability benefits. Treatise cited. See Ch. 157, § 157.03[b] n.44.1 § 157.03[b] n.44.1.
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New 2009 Edition of Dubreuil's Florida Workers' Compensation Handbook
The new 2009 Edition of Dubreuil's Florida Workers' Compensation Handbook (Larson Series) is now available for purchase. To order your copy, click here.
The 2009 Editorial Consultants for Dubreuil's Florida Workers' Compensation Handbook represent both the defense and claimants point of view:
Robert J. Grace, Jr. is a shareholder with the law firm of Stiles, Taylor & Grace, P.A. His areas of practice include civil trial practice, workers' compensation and general insurance defense. The firm maintains offices in four Florida cities including Tampa, Hollywood, Jacksonville and Tallahassee as well as Atlanta, Georgia. Mr. Grace received his Masters of Law in international banking law from Boston University in 1991, his Juris Doctorate from the University of Mississippi in 1990, and his Bachelor of Arts degree in political science and history in 1987 from Indiana University. Mr. Grace is admitted to the Florida Bar, the United States Eleventh Circuit Court of Appeals and the United States District Court for the Middle District of Florida. He is active in the Florida Bar, where he was a committee member of the Clients' Security Fund from 1997 to 2003, serving as Vice-Chairman during 2002-2003. He is also a member of the Trial Lawyers and Workers' Compensation Sections of The Florida Bar. He is also active in the Florida Defense Lawyers' Association, the Defense Research Institute, the Hillsborough County Bar Association and the American Bar Association, where he is a member of the Litigation Section, the Tort and Insurance Practice Section and the Labor and Employment Law section. He is a frequent lecturer around the country on a variety of legal topics. Mr. Grace is "AV" Rated by Martindale-Hubbell and was recognized by Florida Trend Magazine as part of Florida's Legal Elite.
William J. McCabe practices law in Longwood, Florida with the law firm of Shepherd, McCabe & Cooley. Mr. McCabe is a 1967 graduate of the University of Florida. He received a B.S. in Industrial Engineering. He served on active duty with the United States Marine Corps from 1967-1970. He received his J.D. from the University of Florida in 1972. He was admitted to the Florida Bar in 1973. He has handled workers’ compensation cases and workers’ compensation appeals since graduating from law school. He has been extensively involved in workers’ compensation appeals since 1980 representing Claimants only. In 1988 Mr. McCabe received the Orange County Legal Aid Society Award of Merit. In 1999 his law firm was recognized by the Seminole County Legal Aid Society. Mr. McCabe has presented Continuing Legal Education Seminars for the Florida State Bar Association, including seminars on appellate practice in Workers’ Compensation at the Florida Bar Workers’ Compensation Forum for the years 2006, 2007, 2008 and 2009. Mr. McCabe has had Oral Argument before the First District Court of Appeal at the Workers’ Compensation convention for each of the last four years (2004-2008).
What's New for the 2009 Edition of Dubreuil's Florida Workers' Compensation Handbook. Currently scheduled to warehouse in late August 2009, the Florida Handbook has been updated throughout. Some highlights include:
Legislative and Case Developments. In Part I of the handbook, we have updated the chapters with recent, significant changes in the law. One of the most important changes this past year involves the legislation to overturn the Texas Supreme Corut's decision in Murray v. Mariner Health, and to restore the cap on workers' comp attorney's fees. We've included discussion of Murray as well as a point counter-point discussion of the Legislature's amendment to § 440.34, Fla. Stat. from the claimant and defense point of view.
Regulatory Changes. In Part I of the handbook, we have covered any important developments related to rule changes.
Chapter Updates. In Part I of the handbook, we have made updates throughout, including revisions by WCCP to Ch. 10, To Pay or Not to Pay and Adjuster Ethics, and Ch. 11, Reserves. Excerpts of these changes have been blogged about by WCCP. See links above.
Case Summaries. In Part II of the handbook, we have added an entire new section for significant cases decided during the past year.
Tables and Schedules. In Part VIII of the handbook, we have updated several tables, including the wage loss discount factor table.
Statutes and Rules. In Parts III thru VII of the handbook, we have updated the reprints of the statutes and rules.
New 2009 Edition of New York Workers' Compensation Handbook
The new 2009 edition of the New York Workers' Compensation Handbook (Larson Series) is available now for purchase. To order your copy, click here.
New Co-Author Announced
Edward I. Pitts has retired from workers’ compensation practice.
Our new co-author is Ronald Balter.
Legislative developments are covered
Case law developments are included.
Case Summaries With Commentary
Recent court decisions are summarized.
Retirement of Edward I. Pitts. This year’s edition marks a milestone in the history of this Handbook. It is the first since the retirement from workers’ compensation practice of its original co-author Edward I. Pitts. Mr. Pitts recognized long ago the need for a single comprehensive practice guide to New York Workers’ Compensation Law and laid out plans for this Handbook long before publication of its first edition in 2001. He was the principal force in organizing this Handbook and moving it to publication. His words remain in all chapters of this edition of the Handbook. His devotion to this project and the inspired energy he brought to each prior edition will be sorely missed. We congratulate Ed and wish him all the best in his new venture as a Social Security Law Judge based in St. Louis, Missouri. We dedicate this edition of the Handbook to Edward I. Pitts.
New Co-Author Ronald Balter. The new co-author for the Handbook is Ronald Balter. Mr. Balter is an associate with the firm of Caruso, Spillane, Leighton, Contrastano, Ulaner & Savino, P.C. with offices in Manhattan and Staten Island . He is a 1980 graduate of the University at Buffalo. He received a B.A. in Political Science. He received his J.D. from New York Law School in 1983. He was admitted to the Bar of the State of New York in 1984 and has practiced before the Workers’ Compensation Board since then almost exclusively representing injured workers. He is a founding member of the Injured Workers Bar Association. He is also a member of the New York State Bar Association. He served as chair of the State Bar’s Tort, Insurance and Compensation Law Section’s Workers’ Compensation Division from 2004 until 2006. Mr. Balter has also served on the Board of Directors of the Society of New York Workers’ Compensation Bar Association since 1988. In 2005 Mr. Balter was named the Workers’ Compensation Attorney of the Year by the Institute for Jewish Humanities. More recently he was honored as the 2008 recipient of the Russell J. Gugino award by the University at Buffalo’s Alumni Association for his continued support of the university’s Athletic Department. Mr. Balter has presented Continuing Legal Education Seminars for the New York State Bar Association, the Injured Workers’ Bar Association, the New York State Trial Lawyers Association and the Association of the Bar of the City of New York as well as lecturing before various labor unions about workers’ compensation.
Post-Reform Maximum Benefit Rates. This edition still finds the workers’ compensation community in New York adjusting to the major substantive and procedural reforms enacted by the 2007 Workers’ Compensation Reform Legislation on March 13, 2007. One of the main features of that legislation was to raise the maximum compensation indemnity benefit rate paid to claimants for the first time in fifteen years. The rate had been $400 per week since July 1, 1992 and was raised to $500 per week for accidents occurring on and after July 1, 2007, and $550 for accidents on and after July 1, 2008 and is scheduled to increase to $600 per week for accidents occurring on and after July 1, 2009. As of July 1, 2010 the maximum rate will be increased automatically on every July 1st to two thirds of the state average weekly wage.
Caps on Permanent Partial Disability Benefit Awards. As of this writing, the key component of the reform bill sought by the business community, the caps on permanent partial disability benefit awards, has yet to have any impact. The caps are to apply only to injuries occurring on and after March 13, 2007. Because current Board Medical Guidelines generally delay assessment of a classifiable permanent partial disability until at least two years from the date of injury, no cases known to the authors have been “capped.” Significant questions remain to be answered as to just how the caps will work. The Task Force appointed by former Governor Spitzer 2007 and headed by the Superintendent of Insurance to develop new medical guidelines has recommended new guidelines for medical treatment of the most frequently treated body parts, but it has not, as of this writing, made its recommendations for guidelines for assessing permanent medical impairments, a key element in determining awards under the caps. It remains to be seen whether new guidelines will be adopted or even recommended before the first capped cases become ripe for classification. Even if they are, significant unanswered questions remain as to just how the caps will effect payout of workers’ compensation indemnity for permanent partially disabled claimants. In a Point-Counter-point in Chapter 5 of this book, the authors this year present vastly different opinions on how payouts under the caps should work.
“Rocket Docket”. The task force was also charged by former Governor Spitzer with designing a streamlined docket system, the goal of which was to speed adjudication of controverted cases within 90 days. This branch of the task force reported its recommendations and submitted proposed regulations to the Governor and Workers’ Compensation Board on June 1, 2007. After revision by the Governor’s Office of Regulatory Reform, the Workers’ Compensation Board at its meeting of September 16, 2008 adopted new regulations for a streamlined adjudication process for controverted claims. These regulations are substantially revised from those recommended by the task force. They depend greatly on new forms (C-2, C-3 and C-4) which are designed to afford greater discovery to parties before trial than has ever existed in workers’ compensation proceedings. The new regulations are currently scheduled to apply to controverted claims assembled by the Board on and after January 1, 2009. They impose far greater burdens on both sides to complete and reveal all discovery early, before trial. Adjudication of cases involving represented claimants is to be completed within 90 days of the issuance of the notice of controversy (C-7). Just how efficiently and fairly this new adjudication system will work is of concern to all participants and is discussed in substantial revisions to Chapters 10 and 11.
Other Reforms. Many other changes wrought by the 2007 Reform Bill are being refined and are covered in the numerous revisions to most chapters of this Handbook. Chapter 2 in particular discusses new developments on the phase out of the Special Disability Fund under Section 15(8), the imposition of mandatory payments into the Aggregate Trust Fund (“ATF”) of permanent partial disability awards made after June 30, 2007 and the part played by the New York Compensation Insurance Rating Board in workers’ compensation insurance premium rates.
Case Summaries With Commentary. Part II of this year’s edition includes our summaries of and commentaries on the approximately 120 new Appellate Division and Court of Appeals cases on workers’ compensation issues. [See Part II.]
Cumulative Table of Cases by Topical Issue. The Cumulative Table of Cases has been updated, collecting and categorizing all of the appellate cases summarized in this edition of the Handbook, as well as the previous editions, to assist practitioners in finding current case law. [See Part II, Part H.]
Statutes. Part III, Statutes has been updated.
New York Codes, Rules and Regulations. Part IV of the handbook has been updated with many changes.
Tables and Charts. Part V of the handbook has been updated.
Index. The index has been updated.
New 2009 Edition of The Lawyer's Guide to the AMA Guides and Calif. Workers' Compensation by Robert G. Rassp, Esq.
To order your copy, call Customer Service at 1-800-223-1940. Ask for Publication #1432, ISBN 978-1-4224-2761-3. Price $64. To order online at the LexisNexis Bookstore, click here.
THE LAWYER'S GUIDE TO THE AMA GUIDES AND CALIFORNIA WORKERS' COMPENSATION, by Robert G. Rassp, Esq.
One-Stop Reference Tool
Discussion of AMA Guides in California workers’ compensation cases, permanent disability, and apportionment of permanent disability
Analysis of AMA Guides, chapter-by-chapter, with practice tips and expert commentary
Checklists for compliance of medical reports in orthopedic injury cases
Real life examples with step-by-step impairment rating calculations
Unusual Medical Conditions
New discussion on how to rate asthma, diabetes, eye injuries, hearing loss, hernias, knee and hip replacements, shoulder injuries and Diagnosis Based Estimates under Table 17-33 lower extremity injuries
Formal Rating Instructions
Genetics and Risk Factors
IMPORTANT NOTE: As of the publication deadline for the 2009 Edition of the guidebook, the 2009 PDRS has not been officially approved by the State of California Office of Administrative Law. Please consult with the DWC website for confirmation of adoption of the 2009 PDRS at www.dir.ca.gov/dwc. It is likely that the 2009 PDRS, if fully adopted as proposed, will not go into effect until 7/1/2009 and will apply only to injuries occurring on and after that date.
We are now approaching the fifth year of our use of the AMA Guides in our workers’ compensation cases and the learning curve is still quite evident from the reading of medical reports and the deposition testimony of physicians. As we said in the first edition of this guidebook in 2006, the guidebook is a living document and will need to be updated every year due to changes in the law, regulations and judicial interpretations of the use of the AMA Guides in our cases. The “intoxicating pleasure of authorship” as Oliver Wendell Holmes said applies especially when the subject matter is always in a state of change.
We have seen a significant increase in the use of this guidebook upon receipt of a medical report that involves the AMA Guides. Did the physician correctly apply the descriptions and measurements of the Guides or did he or she make it up as he or she wrote the report? How does the report rate under the 2005 PDRS? How can the physician be deposed if the report is not AMA compliant? What questions need to be asked? Did the physician correctly apply the pain add-on? Can there be a sleep disorder impairment in this case when the sleep disorder is caused by pain? All of these questions can be answered by reference to this guidebook and nowhere else.
We now have the proposed 2009 PDRS, which will most likely apply to injuries occurring on or after 7/1/09 and increases the FEC adjustments and re-stacks the FEC adjustment for some injured parts of body. Thus, we start 2009 with possibly three permanent disability rating schedules – 1997, 2005 and proposed 2009 – which will continue to challenge us in our cases. In addition, we are seeing cases go to trial where the parties have an agreed medical examiner but there are different interpretations of how the AME’s report rates under the AMA Guides or the 2005 PDRS. We hope to see judicial decisions on how these cases rate under the AMA Guides and we know that physicians who evaluate these cases are also waiting for judicial clarification of how to rate cases where the tables, figures and text of the AMA Guides are subject to different interpretations. Included in the revision of Chapter 3 are more detailed discussions of unusual medical conditions and how to rate them under the AMA Guides where we have seen at least three previous AME reports where each physician did not apply the AMA Guides correctly for those unusual medical conditions. We have expanded our discussion of how to rate impairments for asthma, diabetes, eye injuries, hearing loss, hernias, knee and hip replacements, shoulder injuries and Diagnosis Based Estimates under Table 17-33 lower extremity injuries.
We have also updated Chapters 1 and 2 of the guidebook to include discussion of how to use both the 2005 PDRS and the proposed 2009 PDRS. The section in Chapter 2 of how to give formal rating instructions has been revised to reflect some current approaches some judges are using that was not included in the original version. We have added a detailed section in Chapter 5 that discusses genetics and risk factors, including a description of the new federal “GINA” and California genetic information privacy laws.
New! Defense Base Act and War Hazards Compensation Act Handbook
AVAILABLE NOW! To order, click here.
Defense Base Act and War Hazards Compensation Act Handbook, Roger A. Levy, Editor-in-Chief
This is the first practical guide published on the Defense Base Act and War Hazards Compensation Act. The handbook is written for attorneys, claims adjusters, judges, defense contractors, injured workers, and others. It provides the reader with a basic introduction to the Defense Base Act, its history and purpose, current events, and a list of common acronyms and terminology.
It also discusses coverage issues, underwriting, waivers, exclusivity rules, types of benefits, the claims process, discovery issues, average weekly wage calculations, zone of special danger doctrine, commutations, settlements, and death benefits.
There's also a chapter on the War Hazards Compensation Act and how benefits are obtained under that Act.
A detailed table of contents is included below.
Roger A. Levy, Laughlin, Falbo, Levy & Moresi, LLP, San Francisco, CA. Roger A. Levy is presently of counsel and former partner with Laughlin, Falbo, Levy & Moresi, LLP. Mr. Levy has been a practicing attorney in the state of California since January of 1970. During that time he has devoted his practice almost entirely to work-place injuries. He first represented claimants, then joined the defense firm of Sedgwick, Detert, Moran and Arnold in 1973 and became a partner five years later. There he concentrated on defending California state matters until the 1972 amendments to the LHWCA took hold, at which time he changed his focus to federal cases. In 1985 he became a founding partner in Laughlin, Falbo, Levy & Moresi, the nation's largest firm whose practice is devoted exclusively to the defense of workers' compensation cases. There he has continued his emphasis on the LHWCA and related matters. He has presented at numerous conferences and seminars throughout the country on issues including LHWCA jurisdiction, third-party remedies, mediation, the Defense Base Act, and War Hazards Compensation Act, and has authored numerous articles and publications on these subjects.
David C. Barnett, Barnett and Lerner, PA, Fort Lauderdale, FL. David C. Barnett received two undergraduate bachelor degrees from the University of Maryland, and his juris doctorate from Nova Southeastern University Law School. He began practicing law in the State of Florida in 1991 and is a founding partner in the law firm of Barnett & Lerner, PA, located in Fort Lauderdale, Florida. His practice currently centers on representing injured workers covered under the Defense Base Act, Non-Appropriated Funds Act, Longshore and Harbor Workers' Compensation Act, Jones Act and various State Workers' Compensation matters. He further handles general maritime claims including the representation of passengers who have been injured while taking a cruise. He is admitted to practice in the State of Florida, as well as the Federal Courts for the Southern District of Florida and has an extensive litigation practice, wherein, he has tried both jury and non-jury trials in State and Federal Court. He has frequently lectured throughout the United States on various maritime and injured workers topics.
Roger D. Ellickson, Consultant, Defense Base Act and International Insurance, Round Lake, IL. Roger D. Ellickson worked in the underwriting end of the insurance industry for over 40 years before retiring in January 2008. He attended the University of Buenos Aires in Buenos Aires, Argentina, where he received a degree in International Relations. Most of his career has been spent in the international underwriting area, and he has worked overseas in as well as having traveled for business purposes to over 40 countries. Prior to his retirement, he was the Director of Casualty Underwriting for CNA Insurance International, based out of Chicago. In this role, he was directly responsible for all Defense Base Act underwriting and was active in successful underwriting of government programs for the U.S. Agency for International Development, the U.S. Department of State, and the U.S. Army Corps of Engineers. Mr. Ellickson is currently active as an international insurance consultant and Defense Base Act consultant.
Keith L. Flicker, Flicker, Garelick & Associates, LLP, New York, NY; Saddlebrook, NJ. Keith L. Flicker is a graduate of the Columbia University School of Law (J.D. 1978) and received a degree in Economics from New York University, where he graduated summa *** laude and was the recipient of the NYU Founder's Day Award (B.A. 1974). He is a member of the New York and New Jersey bars, admitted to practice before the state and federal courts of those jurisdictions, as well as before the United States Courts of Appeal for the 1st, 2nd, 3rd, 4th, 6th, 9th and Federal Circuits and the United States Supreme Court. In 1985 he founded the firm of Flicker, Garelick & Associates practicing civil, commercial and administrative litigation and trial work focusing on the insurance, marine and intermodal transportation industries with a concentration on the defense of carriers and employers with exposures under the Defense Base Act and related statutes. As senior trial counsel and advisor to many of the federal compensation industry's leading corporations Mr. Flicker has tried hundreds of cases before the administrative bodies and courts that are charged with the judicial resolution of DBA and longshore claims. He has also tried dozens of maritime and commercial cases, jury and non-jury alike, before federal and state courts throughout the country. He regularly speaks at and presents seminars to employers, adjusters, attorneys, underwriters, brokers and managers involved in DBA and War Hazard Compensation Act matters. Mr. Flicker wishes to express his gratitude to Brendan McKeon, an associate at Flicker, Garelick & Associates, for his contributions to Ch. 10, Zone of Special Danger, for this handbook.
Richard L. Garelick, Flicker, Garelick & Associates, LLP, New York, NY; Saddlebrook, NJ. Richard L. Garelick received his Bachelor of Arts degree from New York University in 1983, and his Juris Doctorate in 1986 from Brooklyn Law School. He was admitted to practice in New York in 1987 and in New Jersey in 1986. Mr. Garelick has been affiliated with Flicker, Garelick & Associates since its founding in 1985, and he became a principal of the firm in 1994. His national practice focuses on the defense of claims arising under the Longshore and Harbor Workers' Compensation Act and its statutory extensions (including the Defense Base Act), as well as the defense of workplace injury actions brought by seamen and rail workers. Mr. Garelick frequently lectures on these specialized areas of workers' compensation and personal injury law.
Joshua T. Gillelan II, Longshore Claimants' National Law Center, Washington, D.C. Joshua T. Gillelan II received his B.A. from St. John's College in Annapolis, and his J.D. from the University of Maryland in 1973. As a member of the Longshore staff of the Office of the Solicitor of Labor in Washington, DC, from 1973 until 2004, he represented the Director, OWCP, in more than 300 cases before the United States courts of appeals, including many of the most important precedent-setting cases decided since the 1972 Amendments to the Act, and hundreds of cases before the Benefits Review Board. He established the Longshore Claimants' National Law Center in July 2004 for the co-representation of LHWCA claimants and Jones Act plaintiffs, particularly on appeal.
David M. Linker, Freedman & Lorry, PC, Philadelphia, PA. David M. Linker received his Bachelor of Arts from Temple University in 1977, and his Juris Doctorate from Villanova University School of Law in 1980. Mr. Linker has extensive experience in state and federal courts in both Pennsylvania and New Jersey. He is responsible for all aspects of litigation from initial pleadings through verdict. He also currently serves as a lecturer in the area of Longshore and Harbor Workers' Compensation Act. Mr. Linker is licensed in Pennsylvania and New Jersey federal and state courts, and is a member of the bar of the U.S. Supreme Court.
William B. Newton, Ashcraft & Gerel, LLP, Washington, D.C. William B. Newton was born in DeKalb, IL . He attended the School of Foreign Service at Georgetown University, where in 1995 he earned his Bachelor of Science in Foreign Service, and completed the European Studies Certificate honors program. He went on to earn his Juris Doctorate from the University of Notre Dame in 1999, where he completed the Concannon Program in International and European Law, spending his 2L year studying in London, England. Mr. Newton returned to London to earn his M.A. in Art Business at Sotheby's Institute, where he completed a research dissertation on legal pitfalls and business opportunities in the Spanish international art market. Mr. Newton was admitted to the District of Columbia Bar in 2007.
Mark L. Schaffer, Ashcraft & Gerel, LLP, Washington, D.C. Mark L. Schaffer was born in Boston, Massachusetts. He attended Boston University as an undergraduate, where he received an A.B. degree, magna *** laude, in 1967. After attending Georgetown University Law School and receiving his Juris Doctorate degree in 1972, Mr. Schaffer was admitted to the Maryland and District of Columbia Bars in 1972 and the bar of the United States Supreme Court in 1978. Mr. Schaffer is a member of the Bar Association of the District of Columbia, the District of Columbia, Maryland State and American Bar Associations and the Association of Trial Lawyers of America (2nd Vice Chair, 1990 to 1992, Workers Compensation and Disability Section). Mr. Schaffer wishes to thank William B.D. Newton for his assistance with Ch. 7, Claims: Adjudication and Appeals Under Defense Base Act of this handbook.
Michael Thomas, Laughlin, Falbo, Levy & Moresi, LLP, San Francisco, CA. Michael Thomas received his Bachelor of Arts from SUNY at Buffalo in 1987, and his Juris Doctorate from the University of Houston in 1993. He is a Partner at Laughlin, Falbo, Levy & Moresi, where he has been in the practice of workers' compensation defense since 1997. He previously represented plaintiffs in personal injury claims. Since 2000, Mr. Thomas has primarily handled maritime issues with a particular focus on claims arising under the Longshore and Harbor Workers’ Compensation Act and its extensions. Mr. Thomas is admitted to practice before all courts in the State of California, several Federal District Courts nationally and the 5th and 9th Federal Circuit Courts of Appeal. Mr. Thomas has written a variety of articles and lectured on numerous occasions on topics related to the Longshore and Harbor Workers’ Compensation Act, as well as California workers’ compensation law. Mr. Thomas expresses his gratitude to Shana L. Prechtl, Esq., for her assistance with Ch. 6, Benefits Under Defense Base Act, of this handbook.
Detailed Table of Contents:
Chapter 1 Introduction to Defense Base Act
§ 1.01 History and Purpose of Defense Base Act
§ 1.02 Adoption of Substantive LHWCA Law
§ 1.03 Increase of Defense Base Act Claims
§ 1.04 Topics Covered in This Handbook
§ 1.05 Common Terms and Acronyms
§ 1.06 Helpful Websites and Blogs
§ 1.07 Resources for Defense Base Act Cases
§ 1.08 LexisNexis Related Publications
Chapter 2 Coverage: Categories of Work Within Defense Base Act
§ 2.01 Overview and Applicable General Principles of Statutory Construction
§ 2.02 Section 1(a)(1)-(2): Employment "At" or "Upon" Bases
§ 2.03 Section 1(a)(3)-(4): Employment "Upon" or "Under a Contract With the United States" for "Public Work"
§ 2.04 Section 1(a)(5): Contracts "Approved and Financed by the United States" Under the Foreign Assistance Act
§ 2.05 Section 1(a)(6): USO, Red Cross, Etc.
§ 2.06 Final Clause of § 1(a): Situs of Work, Nature of Contract, or Both, Are Determinative, Not Situs of Injury
§ 2.07 Exclusions
Chapter 3 Underwriting the Defense Base Act
§ 3.01 Challenges and Issues for Underwriting DBA
§ 3.02 Centralized Control of DBA Underwriting
§ 3.03 Relationship Between Claims and Underwriting Units
§ 3.04 Areas of Concern for Underwriters
§ 3.05 Security Contractors
§ 3.06 Pricing Issues
§ 3.07 Waivers
§ 3.08 Adding On "If Any" Basis to Domestic Policy
§ 3.09 Premium Payments
§ 3.10 Audits
§ 3.11 Program Business
§ 3.12 Case Histories
Chapter 4 Waivers Under Defense Base Act
§ 4.01 Statutory Authorization of Waivers
§ 4.02 Application of Statutory Authorization of Waivers
§ 4.03 Steps to Obtain a Waiver
§ 4.04 Termination of Waivers
§ 4.05 Request for Waiver (Form BEC 565)
Chapter 5 The Defense Base Act Exclusivity: Employee's Sole Remedy and Employer's Limitation on Liability
§ 5.01 Congressional Intent in Enacting DBA Exclusivity
§ 5.02 Statutory Mandate of DBA Exclusivity
§ 5.03 LHWCA's Exclusivity Provision
§ 5.04 Judicial Application of DBA Exclusivity Provision
Chapter 6 Benefits Under Defense Base Act
§ 6.01 Overview
§ 6.02 Medical Benefits
§ 6.03 Disability Benefits
§ 6.04 Vocational Rehabilitation
§ 6.05 Death Benefits
Chapter 7 Claims: Adjudication and Appeals Under Defense Base Act
§ 7.01 Relevant Statutory Provisions
§ 7.02 Venue
§ 7.03 Proceeding Before District Office and Director
§ 7.04 Proceeding Before Office of Administrative Law Judges
§ 7.05 Proceeding Before Benefits Review Board
§ 7.06 Appealing to Federal Courts
Chapter 8 The Discovery Quagmire: Foreign Worker Claims Under Defense Base Act
§ 8.01 Workers Covered Under Defense Base Act
§ 8.02 Employer's Duty to Report Upon Notice of Injury
§ 8.03 Filing of Claim
§ 8.04 Investigation of Claim
§ 8.05 Compensation Payments
§ 8.06 Medical Benefits
§ 8.08 Death Benefits
§ 8.09 Litigation of Claim
§ 8.10 Pursuing Claims Against Foreign Corporations Without Coverage
Chapter 9 Average Weekly Wage in Defense Base Act Cases
§ 9.01 Traditional Notions of Calculating Average Weekly Wage
§ 9.02 Unique Circumstances in Defense Base Act Cases
§ 9.03 Calculation of Average Weekly Wage Under Defense Base Act
Chapter 10 The Zone of Special Danger: Judicial Doctrine Expands Scope of Compensability Under Defense Base Act
§ 10.01 Compensable and Covered Claims Under Defense Base Act
§ 10.02 Creation of Zone of Special Danger Doctrine
§ 10.03 Expansion of Zone of Special Danger Doctrine: Reasonable Recreation
§ 10.04 Unreasonable Activities: Kirkland and Gillespie
§ 10.05 Identifiable Special Dangers Presented by Work Locale
Chapter 11 Commutations, Death Benefits, and Settlements Under Defense Base Act: "Vive La Difference" for Foreign Workers
§ 11.01 Commutation of Benefits
§ 11.02 Death Benefits
§ 11.03 Settlement of Claim
Chapter 12 The War Hazards Compensation Act: "Kissing Cousin" to Defense Base Act
§ 12.01 Background and Purpose of WHCA
§ 12.02 Coverage Under WHCA
§ 12.03 What Is a War Risk Hazard?
§ 12.04 Benefits and Administration of WHCA
§ 12.05 Process for Reimbursement and Future Payments
§ 12.06 Detention Claims
§ 12.07 Necessary Elements for "Detention"
§ 12.08 Time for Filing for Detention Benefits
§ 12.09 Duration of Detention Benefits
§ 12.10 Consequences of Receiving Detention Benefits
§ 12.11 Process for Detention or Death Benefits
Appendix--DBA and WHCA Statutes
LISTEN FOR FREE! Webinar: The Silent PPO Dilemma: California's Medical Providers Harmed by Stealth Contracts
For a limited time you can listen to this past webinar for free. Course materials are also provided below.
If you have any questions about this webinar, please contact the site coordinator at
This course is a practical approach on how to identify Silent PPOs and its effect on the market place for California providers of medical care. The course will include an analysis of recent California Workers' Compensation Appeals Board panel decisions.
The course will attempt to provide a convincing argument to the court and/or claims adjuster with respect to the lien claimant's right to payment, including the use of Labor Code Section 4609 in conjunction with Senate Bill 559.
To access a PowerPoint version of the Course Outline, click here.