New Workers Comp Laws In California

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Governor Jerry Brown had until September 30, 2018 to sign or veto any bill passed by the California Legislature. Governor Brown signed the following workers’ comp-related bills signed into law:

PEACE OFFICERS: Assembly Bill 1749

This bill provides that a California employer may accept liability for an injury sustained by a peace officer not acting under the immediate direction of his or her employer while apprehending suspected law violators, protecting life or property, or preserving the peace outside of California. This bill specifically includes any claims for injuries sustained by peace officers during the Oct. 1, 2017 mass shooting in Las Vegas, Nev. if the employer determines providing compensation serves public purposes.

FRAUD ASSESSMENT COMMISSION FUNDS: Assembly Bill 2046

This bill authorizes, instead of requires, Fraud Assessment Commission funds appropriated but not expended in the fiscal year that have not been allocated to the district attorneys, to be applied to satisfy the immediately following fiscal year minimum total amount required or to augment funding in the immediately following fiscal year.

The bill also requires an authorized government agency that is provided with workers’ comp insurance fraud-related information to release or provide that information to an authorized government agency, upon request, unless it would violate federal law or otherwise compromise an investigation. The bill also requires an authorized government agency that seeks to disclose information obtained from the Employment Development Department to any other governmental agency that is not authorized to receive that information to obtain EDD approval prior to disclosure.

LICENSED CONTRACTORS: Assembly Bill 2705

Licensed contractors are required to have a current and valid Certificate of Workers’ Compensation Insurance or Certification of Self-Insurance on file with the Contractors’ State License Board and violation of this law is a misdemeanor that must be prosecuted within 2 years. This bill makes it a misdemeanor violation for an unlicensed contractor to fail to comply with workers’ compensation insurance requirements and makes that violation subject to the two-year statute of limitations.

DISABILITY INDEMNITY PAYMENTS: Senate Bill 880

This bill authorizes an employer, with the written consent of the employee, to deposit disability indemnity payments for the employee in a prepaid card account until Jan. 1, 2023. The bill imposes certain conditions, such as allowing the employee reasonable access to in network ATMs and allowing for withdrawal and purchases without incurring fees. The bill also requires employers to provide aggregated data on their prepaid account programs to the Commission on Health and Safety and Workers’ Compensation upon request and requires CHSWC to issue a report to the Legislature on or before Dec. 1, 2022 regarding payments made to those prepaid card accounts.

PEACE OFFICERS & ACTIVE FIREFIGHTING MEMBERS: Senate Bill 1086

With respect to peace officers and active firefighting members, existing law extends the time period for commencing workers’ comp proceedings to collect death benefits from 240 weeks from the date of injury to no later than 420 weeks from the date of injury, not to exceed one year after the date of death. Pursuant to existing law, this extension of time pertains to injuries, including but not limited to cancer, tuberculosis, or blood-borne infectious diseases and is only operative until January 1, 2019. This bill removes the Jan. 1, 2019 date of repeal.

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Can An Injured Worker May be Eligible for a U-Visa?

Injured Worker Immigration U-Visa    Injured Worker Immigration U-Visa   Injured Worker Immigration U-Visa

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Can An Injured Worker May be Eligible for a U-Visa?   Injured Worker Immigration U-Visa

By Nikki Mehrpoo Jacobson
Certified Legal Specialist in Workers’ Compensation Law
by the State Bar of California Board of Legal Specialization   Injured Worker Immigration U-Visa

Can An Injured Worker May be Eligible for a U-Visa? AN INJURED WORKER MAY BE ELIGIBLE FOR LEGAL STATUS (U-VISA) IN THE UNITED STATES AND WCJs MAY HAVE AN INTEGRAL ROLE IN THE PROCESS**

(**Please note that this article is limited to the U Visa. Injured Workers may also be entitled to T Visa benefits)

The issue of “violent acts” and “catastrophic injuries” have been a hot topic of discussion ever since LC 4600.1 came into effect. Essentially, WPI increases are barred for injured workers claiming psych injuries that are compensable consequences of orthopedic injuries. However, if an exception applies, such as a “violent act” or a “catastrophic injury,” the injured worker will be able to obtain an increase in WPI, as well as medical treatment and temporary disability benefits.   Injured Worker Immigration U-Visa    Injured Worker Immigration U-Visa

Regardless of whether the applicant is eligible for WPI increases or not, what is not as well-known is that undocumented injured workers can file for legal status (U Visa) in the United States as a result of workplace related criminal activity or violence. The crime or violence does not have to be a violation of the penal code but a violation of administrative rules and regulations. This visa was specifically created to benefit victims of criminal activity or violence, including victims injured on the job. Congress has concluded that the U visa “will strengthen the ability of law enforcement agencies to detect, investigate, and prosecute [crimes] committed against aliens, while offering protection to victims of such offense in keeping with the humanitarian interests of the United States.” Pub. L. No. 106-386, Div. B, Title V, § 1513(a)(1)(A)-(B), Oct. 28, 2000, 114 Stat. §1513(a)(2)(A) (emphasis added)

There are situations where an undocumented worker has been violently injured, victim of a crime or sexual harassment at the workplace. Unfortunately, it is common for these injured workers to refuse to file a claim when this happens, for fear they may lose their jobs, or worse, lose their families and be subject to the wrath of immigration agencies and be deported.

It is important for these injured workers to know that they are eligible to pursue benefits in both the workers’ compensation and immigration systems.

An injured worker may be eligible for a U visa by submitting a certification by a certification entity (Judges [civil, criminal, administrative judges], local law enforcement agencies, any other civil, criminal or administrative authority involved with criminal activities or civil/administrative violations, including, Department of Industrial Relations and labor code violations) that verifies that she was a victim of the criminal activity or violence and is willing , or is likely to be helpful in the investigation or prosecution of the crime committed against her. See INA § 101(a)(15)(U)(i)(III), 8 U.S.C. § 1101(a)(15)(U)(i)(III). It is crucial to note that a victim may request and receive certification despite lack of a current investigation, the filing of charges, a prosecution or a conviction.

In addition, by signing the I-918 Supplement B certification, a Workers’ Compensation judge is not granting the injured worker a visa to reside legally in the United States. To the contrary, only U.S. Citizenship and Immigration Services (“USCIS”) is authorized to issue U visas. The I-918 Supplement B certification is submitted with the U visa application and other supporting documentation to CIS for its review and ultimate determination. In addition to the certification, the victim must also satisfy USCIS that she has satisfied the requirement that she was, is, or is likely to be helpful in the investigation or prosecution of a crime.   Injured Worker Immigration U-Visa

In order for USCIS to determine if an injured worker is eligible for a U visa because he/she meets the following requirements in addition to the required certification:

  1. is a victim of one of the enumerated crimes or similar activity, includes attempt, conspiracy, or solicitation to commit any of the enumerated crimes.
  2. possesses information concerning the criminal activity.
  3. was, is, or is likely to be helpful in the investigation or prosecution of the crimes against her.
  4. has suffered substantial physical or mental abuse as a result of the crimes.

The enumerated crimes include the following:

  • Abduction
  • Abusive Sexual Contact
  • Blackmail
  • Domestic Violence
  • Extortion
  • False Imprisonment
  • Female Genital Mutilation
  • Felonious Assault
  • Fraud in Foreign Labor Contractin
  • Hostage
  • Incest
  • Involuntary Servitude
  • Kidnapping
  • Manslaughter
  • Murder
  • Obstruction of Justice
  • Peonage
  • Perjury
  • Prostitution
  • Rape
  • Sexual Assault
  • Sexual Exploitation
  • Slave Trade
  • Stalking
  • Torture
  • Trafficking
  • Witness Tampering
  • Unlawful Criminal Restraint
  • Other Related Crimes*†

*Includes any similar activity where the elements of the crime are substantially similar.
†Also includes attempt, conspiracy, or solicitation to commit any of the above and other related crimes.

Not all WCJs are aware of this process, and may be reluctant to certify the request which is essential for the U-Visa application. Therefore, attorneys should carefully review the procedure for doing so:

  1. File a DOR for a status conference
  2. Alert opposing counsel as to the reason for the conference
  3. Present a mini brief at the conference explaining to the WCJ why they have authority to sign off on this certification.
  4. Prepare the certification form for the WCJ to sign.

COMMON WORKPLACE CRIMINAL ACTIVITIES:

The following are examples of common workplace criminal activities by the employer, coworkers, clients, customers or agents of the employer which can make the injured worker eligible for U Visa certification:

  • Injured worker filed a claim and/or testified about abuse or sexual assault in a court case, including WCAB and employment cases. Potential questions posed to the applicant: Did your employer post posters, drawings, pictures of a sexual nature? Did your employer make comments about clothing/appearance or make sexual jokes or comments? Look at you in a sexual manner? Did your employer ask for sexual favors, ask you to have sex with him/her, spread rumors? Did your employer touch you inappropriately? Force you to have unwanted sex?
  • A housekeeper who has been physically or mentally abused by her employer and/or deprived of her liberty by having her ID or Passport confiscated.
  • Did employer or coworker threaten violence? Did employer or coworker threaten to report applicant’s immigration status?
  • Obstruction of Justice: Attempts to influence, obstruct, or impede ANY pending proceeding through use of threats or force; Destruction, alteration, or falsification of records, including wage/hour records, birth certificates.
  • Witness Tampering: Did an employer ever intimidate or threaten applicant to delay or prevent testimony in any “official proceeding”; Alter, destroy, conceal records? Hinder, delay, or prevent communication to authorities; Threaten to damage property or cause bodily harm to delay or prevent witness participation?

LEGAL AUTHORITY & RESOURCES

  1. The application process and appropriate forms can be found USCIS website at www.uscis.gov.
  2. Judicial Council of California: Expert Guidance on Responding to U Visa and T Visa Certification Requests http://www.courts.ca.gov/documents/BTB24-PreCon1E-01.pdf
  3. New California Law on Certifications PC 679.10 U Visa Certifications – Effective January 1, 2016 https://www.ilrc.org/new-california-law-ensures-all-immigrant-crime-victims-california-can-access-u-visa

If you have further questions or inquiries about important immigration and workers’ compensation crossover issues, feel free to contact the author Nikki Mehrpoo Jacobson via email at N.Jacobson@rkmlaw.net

© 2018 by Nikki Mehrpoo Jacobson. All rights reserved

 

 

 

 

 

Nikki Jacobson, Attorney at Law
Certified Specialist, Workers’ Compensation Law
The State Bar of California Board of Legal Specialization
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Injured Worker Immigration U-Visa

Nikki Jacobson, Attorney at Law
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Injured Worker Immigration U-Visa

 

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How Is My Work Injury Case Resolved or Settled?

workers' compensation case resolved settled

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How Is My Work Injury Case Resolved or Settled?

How Is My Work Injury Case Resolved or Settled?  Your work injury case is resolved when there is an agreement between you and the claims administrator or a judge issues an order about your workers’ compensation payments and future medical care that will be provided to you. In order to protect your rights, whether or not you are represented by an attorney, settlements must be reviewed by a workers’ compensation administrative law judge, to determine whether they are adequate.  work injury case resolved settled

My Work Injury Case Is Being Resolved or Settled.  What types of settlements are there?

There are two different ways to settle your case:  work injury case resolved settled

  • Stipulations with Request for Award (stips)
    • Payments – You and the claims administrator agree on the amount of temporary or permanent disability payments you will receive. This is usually paid in weekly payments
    • Medical care – The claims administrator usually agrees to pay for medical care if needed.
  • Compromise and Release (C&R)
    • One payment – The claims administrator agrees on an amount to resolve your claim. This is usually paid in a lump sum
    • Medical care – If the lump sum includes the estimated cost of future medical care, the claims administrator will no longer pay your doctor. This becomes your responsibility.

What if my case doesn’t settle?  work injury case resolved settled

If you and the claims administrator are unable to agree on a settlement, your dispute will need to be decided by a workers’ compensation judge.

Want to learn more? Find it in the guidebook

 

 

 

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Nikki Mehrpoo Jacobson, Certified Specialists in Workers’ Compensation Law
by the State Bar of California Board of Legal Specialization
Professor of Law
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Clients

Attorney Nikki Mehrpoo Jacobson has represented individual clients in immigration (visa) and workers’ compensation (work injury) matters employed at a variety of companies in California, the United States and through out the world.

Below is a partial list of the employers:

ADP Total Source, Inc.
AGBT – American Express Global Business Travel
Alliance for Sustainable Energy
American Express
American Family Insurance
Anheuser-Busch Companies, LLC
Avera
Bank of America
Barclays
Becker’s School Supplies
BlackRock
Blue Coat Systems Inc.
Boston Scientific Corporation
Bridgepoint Education, Inc.
Broadcom Corporation
Callaway Golf
Career Education Corporation
Carle Foundation Hospital
Catalina Marketing Corporation
Cedar Sinai Medical Center
Center Light Health System
Cerner Corporation
Chapman University
CIT Group Inc.
City of Coral Gables
Cognizant Technology Solutions
Concentric Rockford Inc.
Credit Suisse
Data Card Corporation
Dealertrack Technologies, Inc.
Deloitte LLP
Enovation Controls
Ernst & Young LLP
Everest Reinsurance Company
Gander Mountain
Golub Corporation D/B/A “Price Chopper”
Health Net Inc.
Houston Methodist
Humana Inc.
Huntington Ingalls Industries, Inc.
Hyatt
Jack Henry & Associates
John Hancock Life Insurance Company (USA)
JPMorgan Chase
Lahey Clinic Foundation, Inc.
Lakeside Union School District
Latham & Watkins LLP
Laureate Education, Inc.
Legal Resources
Leggett & Platt
Levi Strauss & Company
Luther Holding Company DBA Luther Automotive
Madison Square Garden
McCarthy Building Companies, Inc.
Meridian Health System
Merrill Communications, LLC
MITRE Corporation
Morgan Stanley
NCCI Holdings, Inc.
NetApp, Inc.
Northeast Rehabilitation Health Network
Northrop Grumman Corporation
NVIDIA Corporation
NYU Hospitals
Office Depot
Palomar Health
Presence Health
Prudential Insurance Company
Purdue University
Raytheon Company
Recall Corporation
Regus Management Group LLC
Sage Colleges
Scripps Health
SeaWorld Parks & Entertainment, Inc.
SHPS, Inc.
Southern Research Institute
Southwest Research Institute
Sprint
St. Catherine University
Stanford Hospital & Clinics
Staples, Inc.
State of Georgia
State Street
Synopsys, Inc.
The Knot
Tufts University
U-Haul International
United Nations Staff Union
United Rentals, Inc.
United Technologies Corporation Aerostructures Division
University of North Florida
UPMC
UPS – United Parcel Service, Inc.
Vail Resorts Management Company
Valdosta City Schools
Vanguard
Vantiv, Inc.
Visa Inc.
Vitas Hospice Services LLC
Western Asset Management Co.
Worcester Polytechnic Institute
Zale Corporation

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