POBR, FFBOR Amendments Clarify Witness Right to Representative

On January 17, 2014, the state senate amended Senate Bill 388.  the law would amend the Public Safety Officers Procedural Bill of Rights Act (POBR) and Fire Firefighters Procedural Bill of Rights Act (FFBOR).  Both laws give legal rights to officers and firefighters under investigation or witnesses in an investigation.  According to the Senate Committee Analysis, "SB 388 would specify that a firefighter or peace officer witness may have a representative present when questioned by his or her employer regarding the investigation of another firefighter or peace officer, if that interview may lead to disciplinary action against the witness, as specified."  Senator Ted Lieu introduced the bill.

Court of Appeal Publishes Cannon Decision

The Third District Court of Appeal published its decision in City of Sacramento v. Workers Compensation Appeals Board (Cannon) (December 26, 2013, Court of Appeal Case No. C072944). That means the case can now be cited as precedent throughout the state. The decision establishes the Almaraz/Guzman rule is not limited to “complex and extraordinary" workers’ compensation claims, increasing accuracy and fairness in rating workers’ compensation injuries. Mastagni attorney Eric Ledger argued the case for Sacramento police officer Arthur Cannon before the Court of Appeal.

CalPERS Reports Huge Investment Gains

CalPERS posted another huge increase in its investments which grew by 16.2% in 2013.  That's more than the 12.5% CalPERS reported in July 2013 and the 13.3%it earned in 2012.  CalPERS has continued to grow its assets since 2011 when a 20.7% return prompted CalPERS to declare "We are back."  According the the Sacramento Bee, "the latest investment performance by CalPERS last year was the best since 2003."

PERB Follows NLRB to Require Employers Give Electronic Notice of Unfair Labor Practices

In Stationary Engineers Local 39 v. City of Sacramento (December 24, 2013) PERB Dec. No. 2351-M, PERB formally adopted the NLRB's rule from J & R Flooring, Inc. d/b/a Picini Flooring (2010) 356 NLRB No. 9, to require electronic notice postings.  As it explained, PERB "update[d] PERB's traditional posting requirement to better conform to the realities of the 21st-century workplace."

The rule requires "that where the offending party in unfair practice proceedings, whether it be an employer or employee organization, regularly communicates with public employees by email, intranet, websites, or other electronic means, it shall be required to use those same media to post notice of the Board's decision and remedial order."

This does not replace current rules about notice posting, but instead "shall be in addition to the Board's traditional physical posting requirement."

Court of Appeal Protects Police Officers' Workers' Compensation Benefits

In City of Sacramento v. Workers Compensation Appeals Board (Cannon) (December 26, 2013, Court of Appeal Case No. C072944), the Court of Appeal ruled in favor of accuracy and fairness when rating workers’ compensation injuries.  The decision establishes the Almaraz/Guzman rule is not limited to “complex and extraordinary" workers’ compensation claims.

When a client suffers a permanent impairment, an evaluator rates the injury using the American Medical Association’s Guide to the Evaluation of Permanent Impairment (“AMA Guides”). Almaraz/Guzman, allows the evaluator to give a fair and accurate rating of the client’s disability using any page from the AMA Guides. This is particularly useful when a strict rating under AMA Guides rating is unfairly low. The use of Almaraz/Guzman often results in a higher disability rating for the client.

In this case, the City of Sacramento challenged the rating for a police officer injured on the job. The City's first argued an evaluator may not rate solely on the basis of subjective complaints of pain. The AMA Guides does not allow a strict rating solely based on pain. Thus, defendant argued no rating should be given. But the Court of Appeal quoted the Almaraz/Guzman decision, and reaffirmed the evaluator is not limited to either strict compliance or mechanical application of the AMA Guides. Where a condition is entirely subjective, the evaluator is entitled to use his/her best judgment in assigning a disability rating.

Next, the City of Sacramento dissected four words from the Almaraz/Guzman opinion and asserted it can only be used in “complex and extraordinary cases." The Court of Appeal flatly rejected the claim. The City of Sacramento misinterpreted Almaraz/Guzman. The words “complex and extraordinary cases” referred to syndromes not fully understood or those manifested solely by subjective complaints.  Officer Cannon’s injury, plantar fasciitis, is mentioned nowhere in the AMA guides. Thus, it was clearly within the realm of cases contemplated by Almaraz/Guzman.

This case was not the first time the defense bar has claimed Almaraz/Guzman was limited to “complex and extraordinary cases."  Hopefully, it will be the last. We hope this decision makes it clear accuracy and fairness is the key to rating workers’ compensation injuries.  In those cases where the strict interpretation of the AMA Guides does not accurately reflect a client’s impairment, the evaluator should cite Almaraz/Guzman and provide a more accurate rating.  Mastagni attorney Eric D. Ledger argued the case for Sacramento police officer Arthur Cannon before the Court of Appeal.