Blog — School District Employees

Keep in mind that if a neighbor, friend, or acquaintance asks you to help out around his or her home and is willing to pay you for it, you a most likely not entitled to workers’ compensation benefits if you become injured.

According to Labor Code Section 3352 you are exempt from Workers’ Compensation Benefits if you are employed for fewer than 52 hours or earn less than $100 within 90 days of the calendar year while working in a home-related or personal services type job.

So the next time Mrs. Smith asks you to hang her Christmas Tree Lights for $50 and you fall off the ladder, look to your private insurance for coverage.

Effective August 9, 2010 Pegnim & Ivancich will be moving to a new location  5 miles down the road at:
3440 Hillcrest Ave, Suite 175
Antioch, Ca 94531

We can still be reached at the same phone number and facsimile.

Please note that our office will be closed next Monday, July 5th. Our next after hour drop in will be Monday, July 19th.

How Large A Portion?

Ouch! You have just suffered an injury while at work, and therefore may file a workers’ compensation claim.  You are in your mid-40’s and the injury is to your back.  You had noticed your back hurting a bit before the injury (probably from just getting older) but it was nowhere near the pain that you are now experiencing since the work injury.  Not to mention you had that old embarrassing lower back injury that you suffered during a picnic whiffleball game a few months ago, which you have since pretty much fully recovered from.  But what should these other aches and pains have to do with your new injury?  After all, if it wasn’t for the new work injury, you would still be able to work!

That is absolutely true.  However, when it comes time to determine the amount of Permanent Disability associated with your back injury, the doctor will attempt to determine just that:  how much of the disability was caused by the work injury and not other contributing factors.  This is called apportionment in workers’ compensation.

The doctor will attempt to apportion your Permanent Disability.  Using the example above, the doctor could determine that 80% of your disability is a result of your work injury, while 10% is due to “degenerative changes” (the back pain you noticed before) and 10% to your whiffleball-related injury.  This is when you say, “But that isn’t fair!  If it wasn’t for the work injury I wouldn’t have any noticeable disability!”  You’re right, but that is just the way the law and the labor code are written at the moment, and we’re stuck with it.

Insurance companies are also beginning to try to apportion an injured worker’s inability to get back to work after the injury to other factors besides the injury itself.  Again, you will correctly shout from the rooftop that “but if it wasn’t for my work injury I would still have my job!”  However, insurance companies are increasingly making the argument that not all of someone’s inability to find a job is related to the work injury.  They put forward that the economic climate is even preventing healthy people from finding work, that the injured worker may not be looking at all available jobs, that the job the injured worker was employed in is now more and more rare for anyone who is looking for work, injured or not.  Simply put, they are looking for other things to blame your inability to find a job on than your work-related injury.

Rodman J Martin

The Health Care Reform Legislation recently passed in Washington DC will significantly impact our clients.  By October 1, 2010, Insurance Carriers will be required to offer insurance coverage for dependents up to age 26.  So, your children will now be eligible to stay on your insurance until they are 26.  No longer do your children need to stay in school to be covered. Coverage now is based upon solely on age. It is also important to note that marriage is not a factor that would exclude your children from your policy. As long as your child is under age 26, they can be covered on your health plan, whether they are married or not. The spouse of your child would not be eligible for coverage.

For our younger clients who do not have health insurance, it is important to discuss coverage options with your parents. Changes to the Workers’ Compensation Laws have made it difficult to get much needed medical care on a timely basis. Sometimes coverage through private health insurance is necessary to obtain treatment. The Health Care Reform Legislation may make a difference.

Lisa E. Ivancich

Fist of all, if you’re at this point in your workers’ compensation claim where you have to answer this question, congratulations!  You have most likely already had your deposition taken and have been to multiple medical evaluations.  You are now at the settlement stage.  However, there are 2 types of settlement: Stipulations with a Request for Award (Stips) and Compromise and Release (C&R).

Stipulations (a fancy word for “agreements”) with a Request for Award is a settlement that allows for the future medical care associated with your work injuries to remain open.  In other words, the workers’ compensation insurance carrier still has to pay for your medical after you sign the settlement.  In fact, they will be on the hook for it as long as you need it (it’s lifetime medical, but only on the work injury).  However, they can still send treatment requests from your doctor through Utilization Review (UR), which is where they determine to reject or deny a particular treatment based on their determination of the treatment’s “medical necessity.”  In other words, even though the medical care is left open, they can still review it and deny it if they don’t think it’s necessary.  Also, with a Stip settlement you can re-open your case within 5 years from the date of injury if you feel that your work injury has gotten worse and has resulted in new and further disability since the settlement.

The Compromise and Release (C&R) is where the insurance company issues you a tax free lump sum check in exchange for being relieved of liability (taken off the hook) for future medical care associated with the work injury.  In other words, the benefit to you is that you receive all of the settlement money at once, while the benefit to the insurance company is that they no longer have to worry about paying your doctors.  The lump sum check often takes into account the benefits associated with your permanent disability, the estimated cost of your future medical care, and the value of giving up the right to reopen your case.  Lastly, if you are still working at the job you got injured at, the employer most likely will not be agreeable to settling by way of C&R.  The reason is because of you settle by C&R and go to work the next and injure the same body part, they are on the hook again for medical treatment of that body part.  It defeats the purpose of them agreeing to enter into that type of settlement; not having to be liable for the medical care in the future.

Which one you choose is of course ultimately your decision to make.  If you know that you are going to require a lot of medical treatment because of the injury and do not have any other type of insurance, you will probably lean toward leaving the future medical open.  If you do not get a lot of treatment or are getting by without it and don’t anticipate it being a problem in the future, you might want to settle with a C&R.

By RODMAN J MARTIN, esq

Workin’ 9 to 5…and then some

It is not uncommon these days to be employed at more than workplace.  After all, the cost of living is high in the Bay Area, and supporting a family on one income is not an easy task.  These issues make it even more difficult when someone suffers a work-related injury that renders them Temporarily Totally Disabled, unable to earn the money that he or she so desperately needs.  The person is not only usually precluded from being able to perform the job that is related to the injury, but also is prevented from returning to work at the other job(s).  When this happens, it is important to make sure that the Workers’ Compensation Insurance Carrier is paying you the right Temporary Disability rate.

If you are injured at work and you are temporarily unable to return to work right away because of that injury, you will receive Temporary Disability (TD) benefits.  These are calculated per the Labor Code of California to be 2/3 of your average weekly wage.  You should receive TD payments every two weeks.

However, if you have more than one job, those wages should be included in calculating your TD benefit amount as well!  Let’s say you work at 2 different retailers.  If you are injured on the first job and cannot immediately return to work, you most likely cannot return to the second job either.  The first job alone does not reflect your average weekly earnings, so it is important to make sure the insurance company is including the earnings from the second job as well!

The downside is that if you were getting paid more at the second job (where you weren’t injured), that hourly rate does not apply in determining the TD amount, only the rate of pay at the job you were injured.  The hours from the second job will be added at the hourly rate of the first job.    The big thing to remember is that if you were working more than one job when you were injured, be sure to let the adjuster on your claim (if you don’t have an attorney) or your attorney know, and provide them with the pay-stub/tax-information that can help them determine what the TD rate should be.

Rodman J Martin

Only 11 1/2 More Hours…

You have been through endless medical treatments, been to a QME or AME evaluation, and then a reevaluation, sat through your two hour deposition, dealt with an endlessly frustrating insurance company (even months before you obtained an attorney), been to Oakland for a hearing(s), gone through maybe one or two surgeries and subsequent recoveries, and now you are finally at mediation, a mediation that can at times seem as drawn out and frustrating as all that has been outlined above.  However, don’t get discouraged.  Like anything else you will encounter in the workers’ compensation system, it is important to at least attempt to keep a positive attitude and to keep perspective.

If mediation is something that your attorney has suggested or believes would be a good idea given the facts and circumstances of your case, it’s typically for a good reason.  Sometimes the two sides (you and the insurance company) just cannot agree about anything.  The only thing you can agree on is that you need a third neutral party to come in and assist with communication and finding some common ground to work with.  This third neutral party is called a mediator, and they will be present at the mediation session.  The mediation session is designed to help facilitate settlement of your claim.  Needless to say, this can take hours, and by hours I mean many hours.  That is why it is important to come prepared, mainly for two reasons: 1) So you yourself don’t go crazy (there are only so many cups of coffee you can drink and texts you can send) and 2) So your attorney can effectively put pressure on the other side without major distractions.

If you have been to the Workers’ Comp Board in Oakland, you know how time consuming/boring it can be when attorney’s are negotiating.  Mediation can be like going to the Board, except longer and without the people watching in the lobby.  Like we often tell clients to bring a book or a magazine to the Board, the same goes for mediation.  Feel free to bring books, magazines, even a portable DVD player with headphones (you might get three movies in during a mediation).  If you want to bring snacks/drinks with you feel free to do that also.  And don’t forget to get someone to take care of your kids/pets on the day of mediation, since you could be gone for the day.

One of the reasons behind why the mediation can drag on so long is because the Defense Attorney could count on you getting tired or hungry, and use it leverage in negotiation, counting on you wanting to leave early and settling for a lesser amount than they ultimately would be willing to put on the table if they had to.  That and they bill by the hour, so the longer they are there, the more they get paid.  That’s not a bad thing, that’s just how Defense Attorney’s are compensated.

However, more often than not the mediation takes a long time to complete because there are simply fundamental areas of disagreement over certain issues of your claim that need to be creatively worked through, and that work takes time.  You are not at mediation because you have an easy case.  You are there because your claim is most likely complex or you also are pursuing a civil claim and are attempting what attorney’s call a global settlement.

The most important thing to remember out of all that is put forth above is: be prepared for a long day of mediation, after all, at the end of the day, your claim could very well be resolved, making those twelve hours spent in a conference room or office with your attorney worth it.

Rodman J. Martin

The Pegnim and Ivancich Foundation is a not-for-profit charity founded by Thomas M. Pegnim and Lisa E. Ivancich to provide a method to give back to the Eastern Contra Costa County community.

Though there are many well-developed and organized charities in Central Contra Costa County, there are very few in Eastern Contra Costa County despite the fact that it is the home to 300,000 people.  This is most likely because the community has grown so quickly that charitable resources have not had time to catch up.

The Pegnim and Ivancich Foundation will focus its attention on the needs of the teenage and preteen youth in the Pittsburgh, Antioch, and Brentwood area.  We hope to be able to support individual scholarship needs, extracurricular activities which are in danger of being eliminated, and provide individual support to high achieving scholars, artists, and athletes who lack the financial ability to meet their potential.

We are committed to providing all of the volunteer and administrative needs of the charity without any charge to the charity itself.  Therefore we can state that it is our intention to use 100% of the foundation’s funds in support of the Foundation’s purpose.

We are honored to work with the Lend A Hand Foundation of Oakland in putting on our first charitable golf tournament. One hundred percent of the net proceeds from the tournament will be divided between Lend A Hand Foundation and scholarships for the youth in East Contra Costa County.

Crow Canyon Country Club, a private Country Club in Danville, California, has provided us with the facility at a reduced rate.  We intend this to be a first-class golf tournament, with lunch and dinner provided, multiple prizes included, a raffle, two hole-in-one competitions for $10,000 each, as well as cash prizes and merchandise in the pro shop for the winners of the tournament.

The tournament will be a four man scramble.  Indexes will be factored into the scoring.  Mulligans will be sold.

Since this is our first tournament we do not know whether a “horse race” will receive sufficient support to allow it to be conducted at the end of a tournament.  In the event we have sufficient players sign up for the horse race, we will conduct the horse race at the conclusion of the tournament with pari-mutuel betting.

There will be door prizes, a hosted beverage cart and items up for a silent auction (depending on support).

We are hoping for the support of the workers compensation community in sponsoring holes, prizes, and items for a silent auction.

Any questions can be e-mailed to PegnimandIvancichgolf@gmail.com

Surveillance videos are not the only thing to keep in mind these days in regards to your industrial injury.  When twittering and facebooking, be careful as to what you publish on your profile.  Remember these pages are public and insurance companies can simply type in your name and find you on the internet.

Below is an article from workcompcentral.com regarding a few cases where defense firms used twitter, facebook, and myspace to discover fraud.

Makes you think twice about what you publish on the internet.

Twitter About Mardi Gras Supports Petition for Removal: Top [02/12/10] By John Kamin, Legal Editor
johnkamin@workcompcentral.com

Get CEs for reading this column, click here!

“Linda Wenneker’s back injury apparently didn’t prevent her from enjoying Mardi Gras, which she allegedly described as a “bangin’, bared butts, boobalicious blast” on a Twitter post.

Defense attorneys say the former secretary also tweeted about the good time she had in Los Angeles for some “pre-Oscars festivities” a few weeks before asserting at trial that she was totally and permanently disabled by a workplace injury.

Although Wenneker’s claim has not been concluded, those online posts helped persuade the Workers’ Compensation Appeals Board to grant a petition for removal. The decision remanded the case so the workers’ compensation judge may consider whether to enter alleged online tweets, blogs, and surveillance into evidence.

The Dec. 17 panel decision by the WCAB appears to be one of the first to mention a social networking site by name. The full commission ordered the administrative law judge in the case to rescind his Oct. 23, 2009 order denying a petition by Wenneker’s employer, Contra Costa County, to augment the record.

Although the issue appears to be only now emerging before the full WCAB commission, online snooping is becoming an increasingly important tool in the workers’ compensation investigator’s arsenal. Defense Attorney Donald Barthel wrote in a professional column posted on WorkCompCentral late last month that Internet searches are an easy, effective, and inexpensive way of researching applicants’ backgrounds and verifying their credibility. (See “I Spy for Free” in the Professional Columns section.)

As reported in another article in today’s WorkCompCentral report, New York state skydiver Jacob Bancroft was sentenced on a workers’ compensation fraud charge Thursday after he was convicted on evidence that included a MySpace video of him hiking with a backpack. (See “Skydiver Convicted of Comp Fraud.”)

Contra Costa County sought to augment the record with Wenneker’s alleged online posts on Twitter and other sites about how she visited New Orleans for a “wicked and wild Mardi Gras vacation” and continued on to Los Angeles for the Academy Awards. These posts allegedly occurred in late February and March 2009. The trial in Wenneker’s workers’ comp claim was held on April 22, 2009.

The defense also cited evidence from a four-day trip to Disneyland in October 2009, where surveillance evidence showed Wenneker riding the Mulholland Madness roller coaster, the Space Mountain roller coaster, and the Star Tours ride. While the defense acknowledged that she used a scooter and wore a soft collar part of the time, she did not always do this and exhibited behavior different from the pain-related behavior documented at trial.

The WCAB described her testimony as follows:

“She testified that she does not leave her room for weeks at a time, does not want to see anyone, and does not socialize. She said that she does not drive much, because among other things, the vibration of the car affects her neck and upper extremities. She gets panic attacks around people or noise.”

News of the panel decision’s mention of Twitter and social networking sites did not surprise a private investigations expert who is unaffiliated with the case.

Dalene Bartholomew, vice president of the special investigations unit for Probe Information Services, said that the firm frequently uses social networking sites such as Twitter and Facebook to find information that it can use to obtain more substantive evidence.

“We don’t typically try to let the information we find online stand alone as evidence,” she said. “So we might find something saying that they posted their golf scores, or they posted the big fish they caught, or they posted that they are into cage fighting. Then we go out and try to find evidence of that, whether its documentation, or surveillance evidence, or witness statements, or maybe we subpoena their credit card statements. It’s a tool to point us in the right direction.”

Bartholomew explained that some of the firm’s more colorful investigations have found online evidence of claimants that enjoyed cage fighting, roller derby and political campaigning. These online tidbits allowed investigators to collect evidence proving that the injured workers were participating in those activities.

Probe’s investigators also sidestep workers’ use of various aliases to hide their online personalities by searching a number of databases to generate lists of all names affiliated with that person, Bartholomew said. Next, investigators peruse social networking sites for the injured worker, as well as the worker’s spouse, roommates, and associations or leagues who may have some new information to reveal. With applicants who are active in sports, this information often comes in the form of tournament photos that name the participants, she said.

However, Bartholomew acknowledged that investigators will always have to constantly adjust their search techniques, as social networking claimants become more savvy with their websites. Bartholomew also noted that the age of the person tends to play a large role in how much information might be available online.

In Wenneker’s case, the defense knew that Wenneker was computer-savvy, as the WCAB opinion noted that she had made several hundred posts on a blog titled LAStarz, which detailed celebrity news.

The defense tried to use the newly-discovered Twitter posts about Mardi Gras and the Disneyland surveillance to augment the record, but the workers’ compensation judge was not persuaded.

The judge denied the petitions to augment the record shortly after the Disneyland trip, determining that the defense did not demonstrate that it could not have obtained the new evidence prior to trial or before discovery closed. In other words, the judge ruled that the defense failed to show that it acted with “due diligence” prior to the closure of discovery.

The defense filed a petition for removal with the WCAB, and the workers’ compensation judge recommended a denial of the petition. The applicants’ attorney stated in a verified answer that “defendant has not explained why it could not have obtained surveillance evidence until 11 years after applicant’s most recent injury, 4 1/2 years after she became permanent and stationary, and seven months after discovery closed.”

Wenneker’s attorney also did not deny the Disneyland trip, but disagreed with the defense’s characterization of the trip, as she was on pain medication at the time and took frequent breaks to lay down.

The WCAB granted the petition and remanded, with instructions for the defense to give Wenneker’s attorney copies of the evidence. The panel decision also explained that a judge may admit post-trial surveillance evidence when it rebuts or impeaches an applicant’s trial testimony, as some injured workers “may let their guard down” after trial.

The commissioners clarified that “due diligence” does not require a party to make every possible effort to inquire into a claimant’s life. Instead, “due diligence” requires only a reasonable effort of inquiry, deputy commissioner Neil Sullivan wrote.

Commissioners Alfonso Moresi and James Cuneo concurred with Sullivan’s opinion.

The decision appears to be unique. A brief search of panel decisions from recent years revealed no other panel decisions that included the words, “blog, Facebook, Myspace,” and similar terminology.

The case title is Wenneker v. County of Contra Costa, et al., No. ADJ2954617,”