Issue 43-September 2015
2015 Workers’ Compensation Symposium
By Jeff Rush, Workers’ Compensation Program Manager
The California JPIA hosted the 7th Annual Workers’ Compensation Symposium at the Authority campus on August 20, 2015. Attendees heard a number of presenters on a variety of relevant topics.
The program began with a brief legislative update from Jeff Rush, the Authority’s Workers’ Compensation Program Manager. This year’s session did not include a large number of bills, although there are a few that are being closely monitored.
Jennifer Lentz Snyder, the Head Deputy District Attorney from Los Angeles County’s Healthcare Fraud Division, delivered a spirited presentation on workers’ compensation fraud. She encouraged attendees to take a vigilant approach, even when a claimant’s efforts to fraudulently obtain benefits are not successful.
Demetra Johal, Partner with the law firm of Laughlin, Falbo, Levy & Moresi, provided some instruction on the purpose of depositions. One of the areas she focused on is the employer’s role in the process and how helpful it can be to have a supervisor in attendance when a member of their team is deposed.
Nancy Grimmick, a nurse case manager with Wellcomp, instructed the attendees on the role of nurse case managers in the workers’ compensation process. She identified the role of nurses as a vital member of the team of professionals dedicated to helping injured workers successfully navigate the workers’ compensation system.
Laura Kalty, Partner with Liebert Cassidy Whitmore, joined with Alex Mellor, one of the California JPIA’s Risk Managers, to discuss real-life scenarios where a workers’ compensation claim intersects with the ADA and FEHA. The examples they discussed elicited quite a bit of input from the audience while giving attendees some important points to consider when working to accommodate disabled employees.
The final session of the day featured two of the Authority’s panel attorneys: Elizabeth Gonia from Robin, Carmack & Gonia and Catherine Casper from Hayford & Felchlin. They were joined by Adam Dombchik, an attorney who represents injured workers, including some employed by Authority members. They presented viewpoints on recent case law, oftentimes disagreeing while also identifying some common ground.
For those unable to attend the Symposium, it will be added to the Members’ area of the website in the very near future. If you have any topics you would like to see addressed at next year’s Symposium, please share your ideas with Jeff Rush, Workers’ Compensation Program Manager.
Learning Management System
With the California JPIA’s recently revamped website, members can easily access the Authority’s learning management system (LMS). The LMS provides the means for members to not only access training opportunities, but to also give key member personnel (registrars) the ability to manage their employees’ training needs. Upon login, the user will land on the training calendar (their home page). To login, the user will need to click on the myJPIA login link in the upper right corner of the website’s home page.
Once logged in, the LMS provides the user the ability to:
- Register for training courses.
- The training calendar provides easy access to the Authority’s training opportunities. The user can click on the training link found in the date box of the calendar to register for webcasts, webinars, and classroom training. Course details and descriptions are also provided. Registrars can either register themselves or register their employees by clicking on Register Others.
- The list view of the training calendar provides another way for the user to access the Authority’s training opportunities. The user can click on the registration icon to register for the desired training opportunity. Registrars can also register others by clicking on the Register Others icon. They can also click on the list of registrants to view the list of those who are registered for the training.
- The training catalog is another way for the user to view training opportunities. The catalog includes E-Learning opportunities for whith the user can register. These training opportunities give the user the ability to view the E-Learning course on any device and any browser. Once they complete the course, they will receive a certificate of completion. Registrars can either register themselves or their employees for the selected E-Learning course by clicking Register Others.
- View their registrations:
- Users can view their current instructor-led registrations and have the option to either edit or cancel their registration. Registrars can not only view their own registrations, but can also view their employees’ registrations.
- Users can view their current E-Learning registrations and have the option to launch their course. If they have previously viewed a course but not completed it they can launch the course again and start where they left off from the previous viewing.
- View their completed trainings:
- Users can view their completed trainings and view the course information and print a certificate of completion. Registrars can not only view their own completed trainings, but can also view their employees’ completed trainings.
If you haven’t yet received a username and password to access the site’s LMS, please contact Courtney Morrison, Administrative Analyst.
By Elizabeth Gonia, Partner, Robin, Carmack and Gonia, LLP
In litigated workers’ compensation cases, the personnel file of the injured employee is subject to disclosure by way of a Subpoena Duces Tecum (hereinafter referred to as SDT). By instituting certain safeguards, release of confidential or privileged information might be avoided. One such safeguard is the maintenance of a separate file consisting of all information relative to an employee’s workers’ compensation claim(s). This file should note that it contains confidential information that, in turn, should trigger the member to seek legal advice as to the propriety of releasing the file. Per the following, this is particularly crucial in litigated claims, since defense counsel copies the member with all correspondence.
When a workers’ compensation claim becomes litigated, the injured employee’s counsel might subpoena various records inclusive of personnel records. If the personnel records include all documentation as to the ongoing workers’ compensation claim, adverse effects include opposing counsel being given an insider’s view as to the defense strategy in the handling of the claim. Much of the information would be protected by the attorney-client or attorney work product privilege and, as such, is not discoverable.
There are occasions when defense counsel will not have received a copy of the SDT for the personnel records. Upon learning that the personnel records were provided to opposing counsel, defense counsel would likely request a copy of the records only to discover their own correspondence within said records. There have also been incidences when first knowledge of personnel records having been provided to the injured employee’s attorney is when defense counsel receives copies of privileged documentation (e.g. their own correspondence to the adjuster or the member) by mail from opposing counsel. In SCIF vs. WPS Inc., 70 C4th 644 (1999), the court held that an attorney who receives documents from opposing counsel, which, on their face, are obviously privileged and were inadvertently forwarded to counsel, counsel has an obligation to not only alert the other side, but to return the documents without examining them or otherwise using them. However, it is difficult, if not impossible, to prove that the documents were not read. By maintaining a separate file, such embarrassments might be avoided.
In order to ensure that privileged information is not disclosed, contact should immediately be made with the claims adjuster upon receipt of a SDT for the personnel file. A decision can then be made as to whether one of the Authority’s defense counsel should review the SDT and the personnel records. If the claim has already been referred to defense counsel, the claims adjuster will advise that the subpoena and the entire personnel file be forwarded to counsel. In either case, defense counsel will determine (1) if the SDT is valid or whether there is a basis for objection as to the SDT, and (2) if the SDT is valid, are there documents that are confidential and subject to a legal privilege.
There are instances when an employee’s personnel file will be the subject of a third-party subpoena, i.e. the injury in question did not take place at the member’s place of employment. In these instances, it is recommended that members contact the adjuster handling the ongoing workers’ compensation matter or Jeff Rush, the Authority’s Workers’ Compensation Program Manager. If the personnel records sought are those of a peace officer, contact should be made with the member’s employment attorney or the Authority’s Liability Program Manager, Paul Zeglovitch. A decision can then be made whether an objection should be entered to the subpoena and/or whether a review of the personnel file should be conducted by counsel to avoid providing privileged/confidential material to the third party.
Meet Your York Risk Services Team
Stacy Brown, Unit Manager
It takes a special person to build a career spanning a quarter century in workers’ compensation, and Stacey Brown is one of those people.
Stacey serves as one of the Authority’s two unit managers for its dedicated account at York Risk Services Group. Stacey joined the York team in December of 2013. She has 25 years of industry experience, having worked with both third-party administrators and insurance companies. She also brings a unique perspective to claims handling, having started her career as a vocational rehabilitation counselor. This experience helped her to understand some of the challenges injured workers face, particularly when they are unable to return to work.
Stacey has managed a wide variety of claims personnel for many years and she cites two things that make managers successful. First, she states, “be there for your examiners.” This approach has helped her to develop a good rapport with her team. Secondly, she recognizes the need to “be in the files to provide direction,” which actually coincides with one of the key performance indicators for the Authority’s workers’ compensation program.
When Stacey is not at work, she enjoys reading and time in the outdoors. She likes to hike and spends time each summer in Yosemite. She also serves as a volunteer for the California State Parks Association and San Bernardino National Forest Association.
Preliminary Data on Workplace Fatalities in California Reflect Downward Trend
(Press Release from the Department of Industrial Relations, September 17, 2015)
The Department of Industrial Relations (DIR) posted preliminary workplace fatality statistics for California in 2014. The Census of Fatal Occupational Injuries (CFOI) data reflect a total of 334 fatal work injuries statewide in 2014, a decrease of 16% from the 396 workplace deaths reflected in the final 2013 data. Deaths for Hispanic or Latino workers also decreased 35% from 194 in 2013 to 127 in 2014. Preliminary data for the United States show an increase of 2% from 4,585 in 2013 to 4,769 in 2014.
“The downward trend in workplace fatalities for Latinos and all workers in California is encouraging,” said DIR Director Christine Baker. “It is our hope that this trend continues, and that employers continue to provide their workers the training, equipment and safety measures to protect all workers in our state.”
Key findings of the preliminary 2014 CFOI in California:
- The total number of workplace fatalities are the lowest reported since 2010, and remain below the pre-2008 recession average.
- Over one third (35%) of all California workplace deaths identified in 2014 occurred in transportation incidents. Traffic accidents that occur on public roads are under the jurisdiction of the California Highway Patrol.
- One in five (22%) of all California workplace deaths identified in 2014 were attributed to violent acts and 21% due to trips, slips and falls.
- Fatal workplace injuries among Latino workers represent 38% of all cases identified in 2014, compared to 49% counted in final data the year before.
In April, DIR published a report examining fatal occupational injury trends among Latinos from 2009 – 2013. The report made recommendations for specialized, language-appropriate training for workers prior to performing hazardous work.
“These preliminary statistics on California workplace fatalities provide us with valuable information to protect workers. With evidence and data, we continually refine and strengthen workplace safety and health regulations, training materials, and outreach and education efforts for employers and workers,” said Cal/OSHA Chief Juliann Sum. Cal/OSHA is a division in DIR.
Tables and charts reflecting preliminary data for 2014 (and prior years’ final data) for California are posted online. Preliminary numbers for 2014 reflect available statistics at time of this publication. Changes and additions to the preliminary 2014 California CFOI counts are expected and could result from the identification of new cases and the revision of existing cases based on source documents received after the release of preliminary results. Final 2014 CFOI data will be released in the late spring of 2016.
The Census is conducted annually by DIR in conjunction with the U.S. Bureau of Labor Statistics. CFOI produces comprehensive, accurate and timely counts of fatal work injuries. This Federal-State cooperative program was implemented in all 50 states and the District of Columbia in 1992.
DIR protects and improves the health, safety and economic well-being of over 18 million wage earners and helps their employers comply with state labor laws. Its Division of Occupational Safety and Health, commonly known as Cal/OSHA, helps protect workers from health and safety hazards on the job in almost every workplace in California.
Cal/OSHA does not have authority when injuries occur on public roadways.Cal/OSHA’s Consultation Services Branch provides free and voluntary assistance to employers and employee organizations to improve their health and safety programs. Employers should call (800) 963-9424 for assistance from Cal/OSHA Consultation Services.
Employees with work-related questions or complaints may contact DIR’s Call Center in English or Spanish at 844-LABOR-DIR (844-522-6734). The California Workers’ Information line at 866-924-9757 provides recorded information in English and Spanish on a variety of work-related topics. Complaints can also be filed confidentially with Cal/OSHA district offices.
Continuity of Operations Program
by Jim Thyden, Insurance Programs Manager
It’s hot right now, isn’t it? We probably won’t be saying that in a few months, as most weather forecasters agree there is a high likelihood we’ll experience one of our wettest winters in 50 years.
El Niño is a phenomenon that occurs in California periodically in which warmer water in the Pacific Ocean can cause a change in the atmosphere that may result in higher than normal precipitation as early as fall, going through February. There are many things members can do to prepare for the rain that may come, but what if it still adversely impacts member operations? Or what if a member experiences another kind of unplanned, or even a planned, shutdown of operations, such as a fire or tenting for termite extermination?
Through the Authority’s continuity of operations program, members can get up and running again within 48 hours and can begin remediation and repairs of damaged property immediately.
Whether planned or unplanned, if a member’s work facility is rendered non-operational for any reason, they can contact one of three strategic partners, depending on what the need is and how they would like to initiate the incident:
Agility: provides immediate assistance restoring and maintaining member operations, including setting up alternate worksites for member employees with work space, power, communications, and technology.
NorthStar: delivers damage response, security, damage extraction, restoration, and remediation of contaminates.
VeriClaim: will coordinate all activities and determine applicable coverage through the Authority’s programs, including property, mechanical breakdown, and pollution.
Once the member contacts one of these partners, they will begin the response and, if necessary, work together to provide the member with all needed services and facilities to maintain their operations at an alternate facility and, if possible, restore them at the original location.
There is no additional charge for members to participate in this program and much of what Agility provides is at a minimal charge, while some is at a cost well below market rates. However, there is a limit to the number of members who can use the program simultaneously, depending on the number of work sites required during the interruption of operations. NorthStar’s services are at reduced contract fees, while VeriClaim’s services are at no charge.
Property Insurance Program – Builder’s Risk
by Jim Thyden, Insurance Programs Manager
This is part two in a periodic series of articles on the Authority’s property insurance program. This article focuses on “Builder’s Risk” coverage, which provides coverage for damage to the member’s property while it is under construction.
Builder’s Risk coverage, also known as “Course of Construction” coverage, is offered at no additional charge to members who participate in the Authority’s property insurance program, to a limit of $50,000,000. For projects with estimated completed values greater than this number, coverage can be obtained by calling Alliant Insurance.
Coverage is for “first-party” damages, meaning only member property is insured and not property owned by others, such as contractors and their employees. However, it is always understood by insurers that not all property intended to become part of the final structure is technically owned by the member while en route or awaiting installation at the site. For this reason, property that has been purchased by contractors, but has not yet “passed title” to the member, is considered covered property as well. As such, it is normal and acceptable to have the general contractor named as an insured on the policy as well as the member. Any payment on loss will be made by insurers to the member or contractor “as their interest may appear, at the time of the loss.”
Coverage is written on an “all risk” basis, so typical exposures that are covered are fire, water damage, theft and vandalism. Damage caused by the perils of Earthquake and Flood may or may not be covered, depending on the specifics of the situation, so if coverage for these perils is necessary, please call Alliant to discuss. Some of the extensions of coverage include:
- Additional Expense Soft Costs – applies to new building(s) or structure(s) up to the time that the new building or structure is initially occupied or put to intended use
- Up to 25% of the estimated completed value, which results from a delay in the completions beyond the date it would have been completed had no loss or damage occurred
- Additional Interest – money you borrow to finance construction or repair
- Rental Value – actual loss of net rental income
- Additional Real Estate Taxes or Other Assessments – incurred from time construction is extended beyond the completion date
- Additional advertising and promotions expenses as a result of a delay in completion of the project
- Additional commission expenses from renegotiating leases following an interruption
- Additional architectural / engineering fees from delay
- Additional License and Permit Fees caused from a delay
- Legal and Accounting Fees incurred resulting from delay
While “All Risk” coverage is automatic, and does not require an application, the project (structure) should be listed on the member’s property schedule. If it is not, unnecessary complications can occur. Adding a project can be done through Alliant’s web portal Oasys (https://oasysnet.alliantinsurance.com/oasys/active/signon.asp) or by contacting Gail White by e-mail or by phone at (949) 660-8127. Earthquake and Flood coverage can usually be purchased at an additional premium.
Once the job is completed and a “Permit to Occupy” has been issued, the building becomes covered under the Authority’s Property Insurance Program like all other structures included on the members’ schedule. Additional premium may or may not apply depending upon the timing of completion and the size of the project.
For more information about Builder’s Risk coverage, including how to report a claim, visit the property insurance program page on the Authority’s website.
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