By John P. Kamin, Legal Editor
Employers are not liable for temporary total disability benefits when an applicant’s immigration status is the sole reason for not being able to accept an offer of modified work, according to a Workers’ Compensation Appeals Board panel decision that is quickly gaining notoriety among defense attorneys.
The WCAB’s decision in Cubedo v. Leemar Enterprises features a new point of law about undocumented injured workers’ entitlement to benefits.
Timothy Kinsey, a partner at the firm of Grancell, Lebovitz, Stander, Reubens and Thomas, told WorkCompCentral that the decision is a logical extension of a 2000 decision by the California 2nd District Court of Appeal in Del Taco v. WCAB.
In the Del Taco case, the 2nd DCA ruled that an applicant is not entitled to vocational rehabilitation benefits where the applicant’s immigration status is the sole reason for being unable to return to work. The panel concluded that requiring the employer to provide vocational rehabilitation benefits would violate the equal protection clause of the 14th Amendment of the U.S. Constitution.
In the Cubedo case, a WCAB panel ruled that applicant Sarahi Cubedo was not entitled to temporary disability benefits because her undocumented status prevented her employer from offering her modified work. The employer had allowed Cubedo to work with restrictions until a claims adjuster gave notice that she had testified that she was an undocumented worker.
A workers’ compensation judge awarded Cubedo temporary disability benefits, but a WCAB panel reversed and remanded the award.
WCAB Commissioner Frank Brass wrote that the TTD award was not consistent with the Del Taco decision.
“With regard to temporary partial disability and pursuant to the holding in Del Taco, we believe that if defendant made a legitimate offer of modified work that applicant could not accept solely because of her residency status, defendant is not alternatively liable for temporary total disability benefits,” Brass wrote.
He clarified that Cubedo would be entitled to TD benefits if she could show that she was temporarily totally disabled because of medical reasons and noted that this must be supported by substantial medical evidence. However, Brass and his fellow panelists felt that the evidentiary record was unclear at the time, and remanded for further proceedings.
When the case returned to the trial level, the parties agreed to a compromise and release agreement, with Cubedo receiving no TTD benefits for the period of time she was unable to work because of her immigration status, Kinsey said.
The Del Taco and Cubedo panel decisions appear to fit within an exception to Section 1171.5 of the California Labor Code, which Commissioner Brass had cited in the panel decision. State legislators first approved the statute in 2002, which states that the immigration status of a California employee is irrelevant when it comes to extending “all protections, rights and remedies available under state law.” Section 1171.5 features an exception, which allows employers to limit the reinstatement of a California employee based upon immigration status.
Kinsey said that employers should not adopt a blanket rule on investigating the immigration status of applicants, saying employers should analyze this issue on a “case-by-case basis.” In some factual scenarios, an employer’s decision to investigate an injured worker’s immigration status could run afoul of federal and state labor laws, he said. That problem did not arise in Cubedo’s case, because she had voluntarily testified that she was an undocumented worker.
WorkCompCentral left a message for Cubedo’s attorney, but did not receive a response before deadline.
Permanent Disability on Agenda for CHSWC Meeting
Two agenda items addressing permanent disability benefits are scheduled for the January meeting of California’s Commission on Health and Safety and Workers’ Compensation.
Seth Seabury of the Rand Corp. will discuss permanent disability under the American Medical Association Guides to the Evaluation of Permanent Impairment, and Frank Neuhauser, executive director of the Center for the Study of Social Insurance at the University of California, Berkeley, will talk about changes in PD awards under Senate Bill 899.
Other agenda items include John Mendeloff of Rand Corp. delivering a compliance officer inspections report and Laura Stock of the University of California, Berkeley, talking about the School Action for Safety and Health (SASH) Program.
The commission will also elect its 2012 chairman.
The meeting starts at 10 a.m. on Jan. 19 in Room 1304 of the Elihu Harris state building, 1515 Clay St. in Oakland.
TOP 10 DEVELOPMENTS IN CALIFORNIA WORKERS’ COMP IN 2011
By Julius Young
Monday, December 26, 2011 – Understanding the CA WC system
What were the top 10 developments in California workers’ comp in 2011?2011 was not a blockbuster year in California workers’ comp, although a few things do stand out. Here’s my list, in no particular order:
1. TRANSITION FROM SCHWARZENEGGER ADMINISTRATION TO THE JERRY BROWN APPPOINTED DIR/DWC
State Compensation Insurance Fund workers take pay to leave
January 5, 2012
Editors note, 12:20 p.m.: Details of the severance agreement have been added to this report
Nearly 1,000 State Compensation Insurance Fund employees took an unusual severance package in December that required they leave their jobs by last Friday.
State Compensation Insurance Fund cuts 484 Bay Area jobs — State Compensation Insurance Fund will eliminate 484 jobs in the Bay Area by April, part of an overall reduction of slightly more than 1,400 jobs statewide, the insurer said Thursday. George Avalos in the Contra Costa Times — 1/6/12
California’s new wage disclosure notice and the Wage Theft Prevention Act of 2011
Christopher E. Cobey, R. Brian Dixon, Isela Pérez and Jose Macias Jr.
California’s Wage Theft Prevention Act of 2011 (“WTPA” or “Act”)1 takes effect on the first day of next year – January 1, 2012. The WTPA is one of half a dozen new laws that affect an employer’s wage payment obligations. The WTPA amended five existing statutes within the California Labor Code, and created five new statutes in the same code.2 All are discussed below.
California workers pay more for employer-provided health insurance
Jan. 5, 2012 | By Stephanie O’Neill | KPCC
In California, 63 percent of workers have employer-provided health insurance. A new study from the non-profit California Healthcare Foundation indicates that employees in this state are paying more money for less coverage.
State News: 1.6
Brown Budget Sends ‘Ransom Note’ to California Voters on Taxes — California Governor Jerry Brown proposed a budget that would lop off the equivalent of three weeks from the public school year if voters reject his proposal for $7 billion in temporary tax increases. Michael B. Marois and James Nash Bloomberg — 1/6/12
Jerry Brown’s budget eliminates 3,000 state jobs, axes agencies — Brown’s first draft of the budget for the 2012-13 fiscal year that begins July 1 envisions reducing the state workforce by some 3,000 positions, mostly from the Department of Corrections and Rehabilitation. The cuts fill a small part of the $9.2 billion budget hole projected through June 2013. Jon Ortiz in the Sacramento Bee — 1/6/12
Surprise! The New State Budget — The unveiling of a governor’s state budget every January is an annual, and well rehearsed, ritual: budget decisions are made in late December, budget goes to the printer, gubernatorial staffers privately brief some stakeholder groups (some who leak to the press), governor calls a news conference. Yeah. So much for the playbook. John Myers Capitol Notes — 1/6/12
Walters: Let the California budget games begin — The state Constitution requires governors to unveil their proposed budgets for the next fiscal year by Jan. 10.Dan Walters in the Sacramento Bee — 1/6/12
Jerry Brown proposes folding High-Speed Rail into new agency — Gov. Jerry Brown reiterated his commitment to California’s high-speed rail project today, but he also proposed additional oversight, seeking to fold the troubled High-Speed Rail Authority into a new state agency. David Siders SacBee Capitol Alert — 1/6/12