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(818) 226-3400
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(805) 685-3200
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(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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"GOTCHA!" - FAILING TO IMMEDIATELY REPORT INJURY TO CAL-OSHA
One of your employees has just had a serious injury. Paramedics on the scene tell you that they will immediately inform Cal-OSHA. Shortly thereafter, a Cal-OSHA investigator arrives to investigate. Several weeks later, you are shocked to receive a Cal-OSHA fine of $5,000 for failing to timely report a serious injury to Cal-OSHA.
California Code of Regulations § 342(a) provides:
"Every employer shall report immediately by telephone or telegraph to the nearest district office...any serious injury, serious illness or death of an employee occurring in the place of employment. 'Immediately' means as soon as practically possible but no longer than eight hours after the employer knew or with diligent inquiry would have known of the death or serious injury or illness. If the employer can demonstrate that exigent circumstances exist, the time frame for the report may be made no longer than twenty-four hours after the accident."
"Serious injury or illness" means any injury or illness in connection with any employment which requires in-patient hospitalization for a period in excess of twenty-four hours for other than medical observation, or where an employee suffers a loss of body member or a serious degree of permanent disfigurement.
Cal-OSHA is obligated to impose a penalty of $5,000 for violation of § 342(a).
Often, employers mistakenly believe that they can rely on third parties to make the report of injury. Even where an injury is reported to Cal-OSHA by others, and even where Cal-OSHA is able to investigate shortly after an accident, Cal-OSHA will still impose the automatic penalty unless the employer itself has immediately reported injury to the nearest District Office.
If you receive a "failure to report" penalty, all is not lost. Employers should almost always appeal these "failure to report" penalties. Often, the $5,000 fine can be substantially reduced. |
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BENSON DECISION UPHELD ON APPEAL
Diane Benson filed two claims involving a neck injury. The Workers' Compensation Appeals Board issued two separate awards of 31% permanent disability for each injury, for a total of $49,210. Benson appealed contending she was entitled to a single award of $67,016 because she suffered a combined permanent disability for both injuries of 62%.
Under the thirty year old Wilkinson doctrine, where separate injuries involved overlapping body parts are found to be permanent and stationary at the same time, the WCAB combined the disabilities from the injuries, resulting in substantially higher disability. However, in Benson, 72 Cal. Comp. Cases 1620 (2007), the WCAB held that the 2005 workers' compensation reforms (SB899) implicitly overruled the Wilkinson doctrine.
In a published decision issued February 10, 2009, the First Appellate District affirmed the WCAB's opinion. The Court held "that a system of apportionment based on causation requires that each distinct industrial injury be separately compensated based on its individual contribution to a permanent disability."
It is likely that the Court of Appeal decision in Benson will be appealed to the California Supreme Court. For the time being, the Benson decision will have a wide ranging effect on workers' compensation claims, significantly reducing permanent disability awards in cases where an applicant has two or more injuries involving overlapping body parts. |
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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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