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LOS ANGELES
(818) 226-3400
SANTA BARBARA
(805) 685-3200
INLAND EMPIRE
(951) 270-1344
FRESNO
(559) 226-6100
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The full-service firm of Tobin · Lucks LLP provides legal services to the insurance and employer communities, with an emphasis in workers' compensation, labor and employment counseling and litigation, and related areas of civil litigation. |
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FEHA-THE INTERACTIVE PROCESS TRAP
Recent case law points out that an employer's failure to engage in the interactive good faith process for the accommodation of disabled or injured workers, as mandated by the California FEHA, can result in huge exposure.
Schermerhorn v. L.A.U.S.D. (2008) 73 Cal. Comp. Cases 1418 (unpub. 2nd Dist. Ct. Of App.), involved an L.A.U.S.D. teacher who had a workers' compensation injury. The teacher had surgery, and within two months his treating physician released him to return to work with extensive work restrictions.
L.A.U.S.D. asserted that it could not return the worker to work until he was found "permanent and stationary" by Agreed Medical Examiners under the workers' compensation system. The injured worker was eventually returned to work within two years.
An FEHA civil lawsuit was filed. At trial, the jury awarded over $380,000 in compensatory damages, and an additional whopping $570,000 in FEHA attorney fees. The verdict and damages were upheld on appeal, and the Court of Appeal found that the L.A.U.S.D. failed to engage in a good faith interactive accommodation process.
This case points out that regardless of the status of a workers' compensation claim, employers must engage in an ongoing interactive good faith accommodation process with an injured worker. The case also points out that the prime motivator for the plaintiff's bar in litigating FEHA cases is the huge potential FEHA attorneys fee awards, which are often significantly higher than actual damages.
Now, more than ever, employers must be aware of their duties under the FEHA to engage in the mandated interactive good faith accommodation process. |
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VOCATIONAL REHABILITATION-GONE BUT NOT FORGOTTEN
Effective January 1, 2009, the vocational rehabilitation benefit law, Labor Code §139.5, was repealed for all workers' compensation claims, regardless of date of injury.
In the last few months, a flurry of activity occurred with respect to vocational rehabilitation benefits, with claimants filing thousands of last minute VR dispute forms with the Rehabilitation Unit, the Unit issuing thousands of Awards for retroactive benefits, and defendants filing appeals of those Awards.
It is not clear whether the WCAB retains jurisdiction to award any form of VR benefits.
It appears that these pending disputes will be the subject of extensive litigation and appeals. Tobin Lucks LLP, on behalf of the employer and insurance community, will vigorously argue that the WCAB has no further jurisdiction to award any retroactive vocational rehabilitation benefits.
Further developments in this significant area will likely occur in the near future. We will keep you updated. |
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For more information contact
John F. Salisbury- jsalisbury@tobinlucks.com
Edwin J. Lucks- elucks@tobinlucks.com
(818) 226-3400
The Tobin · Lucks Newsletter is published periodically by Tobin · Lucks LLP, and should not be construed as legal advice or legal opinion on any specific fact or circumstance. The contents are intended for general information purposes, only. It is recommended that you consult counsel regarding your own situation to obtain responses to your specific legal questions.
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