Thursday, December 27, 2007, 08:36 AM - Understanding the CA WC systemWedding crashing.
You've undoubtedly seen The Wedding Crashers. Owen Wilson and Vince Vaughn pay charming rogues who crash weddings hoping to meet women.
Following their own crashing code, they insinuate themselves into a Jewish wedding, telling gullible young women of their exploits with the French Foreign Legion and climbs on Mt. Everest.
Crashing a high-society wedding, the Schopenhauer-quoting Vaughn seduces the sister of the bride. Meanwhile, Wilson chases the apple of the family patriarch's eye. And all the while, the two are fodder for fantasies of the gay son and the exhibitionist mother.
Even lower on the moral totem pole is the Will Farrell funeral crasher. Farrell's character crashes funerals, hoping to meet beautiful widows in their time of need.
Think it doesn't happen in real life? Think again after looking at Klare Richardson-Tunnell's situation.
Richardson-Tunnell, a school teacher for the Lucia Mar Unified School District in San Luis Obispo County, had a back injury at work. As a result, she had a disc replacement surgery in June 2003. Some four months later-in October 2003-Richardson-Tunnell got married while she was on disability leave.
The comp claim was handled by SIPE (the School Insurance Program for Employees), an adjusting agency handling claims for the district. SIPE commissioned Anthony Esparza and Eye-Con Investigations to investigate Richardson-Tunnell.
Esparza crashed the wedding, apparently attending the wedding and the reception at the Victorian Pitkin-Conrow house in Arrroyo Grande which Richardson-Tunnell had rented for her exclusive use.
Esparza may or may not have flirted his way through the wedding and reception, but even if he didn't leave with any phone numbers he did leave with some video.
The next day, he followed up on the honeymoon, using a telephoto lens to shoot pictures of the couple sunbathing on the balcony of their rented hotel lodging.
Richardson-Tunnell sued for damages under various theories-invasion of a constitutional right to privacy, violation of Civil Code 1708.8 (the anti-paparazzi statute), violation of privacy-intrusion, and negligence.
The California 2nd District Court of Appeal (Division Six) ruled that as public entities, SIPE and the school district are immune from a lawsuit for damages under California's Government Code 821.6.
Interestingly, the court notes that SIPE and the school district "do not dispute that Richardson-Tunnell had a right to privacy at her wedding ceremony, reception and honeymoon." But the court was unwilling to say that Civil Code 1708.8 (the anti-paparazzi statute) trumps governmental immunity from damages under Government Code 821.6.
The case-Klare Richardson-Tunnell vs. School Insurance Program for Employees-doesn't speak to the liability of Esparza and Eye-Con. The case was an appeal from the trial court's dismissal of the district and SIPE from the lawsuit. Presumably, the case will proceed to trial against Esparza and Eye-Con. It's not clear what sort of defenses Eye-Con might raise.
Comp wedding crashers beware. If the defendant was a big or small non-governmental employer, there would have been no immunity.
And don't even think about crashing that funeral either.
Stay tuned. I'll be doing some year-end recaps over the next week.
Sunday, December 23, 2007, 10:22 AM - Understanding the CA WC systemThe recent coverage about Vaira, the AARP and ACLU's challenge to application of California's workers' compensation apportionment, failed to highlight that a second case was coming on the heels of Vaira.
The case is Fitzpatrick v. WCAB. Arguments were held last Monday in Sacramento at the 3rd District Court of Appeal.
The claimant in Fitzpatrick is 64 year old schoolteacher Dianne Fitzpatrick. Fitzpatrick was injured when she was pulled to the ground by an unruly pupil in a schoolyard incident.
Clearly the "cause" of the injury was being pulled to the ground. And if she had no disability before being pulled to the ground, in what sense is her disability "caused" by a non-symptomatic underlying condition?
But at the trial level, the judge reduced her permanent disability award by over half by apportioning to osteopenia.
Osteopenia is a bone mineral disorder which is often a precursor to osteoporosis. The disorder is usually found in post-menopausal women and thus is generally related to the aging process. It can also be found in some young high-performance female athletes.
Vaira raised as many questions as it answered. The Vaira court rejected apportionment to age per se but appeared to leave the door open to apportionment to age-caused problems to some extent. In Vaira, the 3rd District remanded the case to the WCAB for additional proceedings and ordered its decision to be "unpublished" and therefore not citable in other legal proceedings.
It's possible that Fitzpatrick-handled by Sacramento applicants' attorney Melissa Brown-could be the more important case of the two.
I'll be watching for the decision, which will probably come in early January 2008.
I hope you'll check back over the holidays. I'll be doing a piece called "The Wedding Crashers."
And I'll be doing a recap of the top events in California workers' comp in 2008 and a separate piece on the top cases in 2008.
Friday, December 14, 2007, 06:56 PM - Understanding the CA WC systemBreaking news this afternoon... No sooner did I get to San Francisco to attend the labor-sponsored "Moosefeed" than I learned of the demise of Wilkinson.
R.I.P., Wilkinson. We'll miss you.
The California Workers' Compensation Appeals Board has issued an en banc ruling dealing with the "Wilkinson doctrine." The case, Diane Benson vs. The Permanente Medical Group and Athens Administrators, is another big win for insurers.
Wilkinson was a 1977 case that indicated that where an injured worker, while employed by the same employer, sustained two separate injuries to the same part of the body that became permanent and stationary at the same time, the injuries would be rated combined rather than separately.
The Wilkinson rule benefited workers who had these types of successive injuries. The concept was that the successive injuries combined to create a more serious disability reflected by the combined rating.
If Joe has a fall that causes a back surgery, returns to try to work on light duty and takes a second fall causing a second back surgery, why shouldn't his two injuries be rated as one disability?
Later cases known as Rumbaugh and Nuelle extended the Wilkinson doctrine. Wilkinson has been the law for 30 years.
But did Wilkinson survive Schwarzenegger's SB 899 reforms?
No, according to the majority in Benson vs. Permanente Medical Group. The majority included two commissioners likely to be reappointed to second terms within the coming weeks, James C. Cuneo and Frank M. Brass. The lone dissenter was Commissioner Ronnie G. Caplane.
This decision penalizes workers who are unfortunate enough to have two or more successive injuries. It delivers a windfall to insurers who can now treat each event as a separate source of disability, overlooking the synergistic increase in disability from multiple, successive injuries.
It's complicated stuff. But it's one more notch on the wall for those who have sought to roll back benefits for California's workers.
Here is the decision:
http://www.dir.ca.gov/WCAB/EnBancdecisi ... 7-EB-9.pdf
Friday, December 7, 2007, 08:40 AM - Understanding the CA WC systemLooking ahead a decade or two, will there be more or less workers' comp cases?
Somewhere there are probably actuaries wearing green eye-shades who know the answer. Or at least who have some projections.
I don't have the definitive answer. But here's my thesis.
Evidence just continues to roll in that we're a flabby society. And I'm not talking about Wisconsin or Alabama. Everyone knows the Midwest and the Southeast has more than its share of flab.
But here in sunny CA-home of Muscle Beach-we're turning to flab.
Yesterday, the California Department of Education released its results on physical fitness tests for 5th, 7th and 9th graders. The link to the results is here:
Statewide, less than a third of students met fitness standards in six areas:
-percentage of body fat
-abdominal strength and endurance
-body truck strength and endurance
-upper body strength and endurance
These are the comp clients of the future.
But will there be apportionment to pizza, big macs, Cokes and fries?
Thursday, December 6, 2007, 10:20 AM - Understanding the CA WC systemMy last post had a link to Vaira, the case where ACLU, AARP and the Impact Fund challenged application of the workers' compensation apportionment statute.
Disabled Californians owe great thanks to Brad Seligman of the Impact Fund and to ace Sacramento applicants' attorney Melissa Brown for their hard work on Vaira (which isn't over, by the way, since the case was remanded for further proceedings).
Meanwhile, the issue has been getting a lot of press coverage.
Frank Russo of the California Progress Report did a good analysis of Vaira. You can check it out here:
http://www.californiaprogressreport.com ... _cour.html
The AP article by veteran Sacramento journalist Steve Lawrence can be seen here ("Court Ruling Gives Injured Workers Only Partial Victory"):