Fabiano Castro & Clem, LPP

Worker's compensation represents the largest part of the firm's practice. Fabiano Castro & Clem represents insurance companies, self-insured employers and public agencies before all the California Workers' Compensation Appeals Board, Courts of Appeal and Supreme Court. We handle all aspects of a workers' compensation litigated claims from advise on non-litigated claims to complete litigation handling, assistance in discovery, and representation through all phases of litigation and resolution of claims.

In addition to providing defense in workers' compensation matters, we also represent employers in Serious and Willful Defense claims as well as Labor Code§132a actions.

With the recent changes enacted through SB 863 as well as the growing complexity of the workers' compensation laws, Fabiano Castro & Clem conducts educational classes and seminars for clients and professional organizations to allow our clients to be better informed and to provide credits for their mandatory training requirements. We will also provide educational seminars on any workers' compensation subject requested by individual companies including seminars on recent case law, as well as medical and legal issues as they relate to your claims.

A 132(a) petition is often invoked following a work injury and where the employee is no longer employed. It may be filed if an employer fires or discriminates against an employee for filing a workers' compensation claim. This is called a Labor Code 132a petition. Please note this petition must be filedwithin one yearof the discriminatory act or date when the employee was fired. A 132a petition can only be filed if the employee has a pending Workers' Compensation Appeals Board (WCAB) case. Employer discrimination can have significant consequences because of the technical nature of this petition, you may need legal advice.

Under California Labor Code § 4553, an employer that is found to have caused an employee’s injury by its “serious and willful defense” will be ordered to pay an amount equal to half the value of all benefits paid as a result of the injury. This includes all temporary and permanent disability, medical and vocational rehabilitation benefits.

Although the California Supreme Court has characterized awards for serious and willful defense as an additional “benefit”, the statute provides that this liability, like criminal fines and Cal/OSHA penalties, is uninsurable. An S&W award must be paid from the employer’s own funds. Moreover, unlike the power vested in judges and juries to decide the value of damages in personal injury negligence actions, Labor Code section 4553 denies the workers’ compensation judge any discretion to adjust the amount of the award.

To recover under section 4553 the employee must demonstrate that the employer’s conduct was “willful”; that is, that the employer actually knew of the dangerous condition, yet deliberately failed to take corrective action. This requirement has been interpreted by the courts to mean conduct which is something more than even gross negligence. It has been said to be conduct of a quasi-criminal nature . The California Supreme Court has said that an employer commits willful misconduct “...when he ‘turns his mind’ to the fact that injury to his employees will probably result from his acts or omissions, but he nevertheless fails to take appropriate precautions for their safety.”

The high levels of proof needed to establish “serious and willful defense” should favor the employer. However, the reality is that California’s workers’ compensation judges are, by and large, sympathetic to injured employees and unsympathetic to employers. In addition, the Board has long held that Labor Code section 3202 compels its judges to interpret evidence in the light most favorable to the employee. Moreover, the Board’s judges dislike hearing S&W trials because they are unfamiliar with issues of negligence law and evidence which these claims raise. This lack of familiarity increases the employee’s and the employer’s uncertainty that the decision after trial will be appropriate. Because of the ramifications of this petition, you may need legal advice.

OVERVIEW

Our firm provides employer claim consulting to employers and self-insureds regarding current claims handling. We also provide advise on how to minimize litigation costs and exposure.

DESCRIPTION

We provide in-depth claim analysis for all aspects of workers' compensation claims that are being handling by third party administrators or other insurance claim representatives. This enables employers to minimize litigation costs and reduce their experience modification factor.

• Employer Training on Injury Reporting
• Claims Monitoring
• Facilitation of Claims Reviews
• Detailed Status Reports
• Reserve Analysis
• Attend Broker/Employer/Carrier meetings

Our goal is to provide workers' compensation claims oversight in order to reduce costs and move claims to closure in a cost effective, efficient and cost effective manner, as well as to provide technical expertise and personal service. You can count on a building a partnership based on trust and knowledge as we will closely monitor your claims so that you can effectively run your business.

Coming Soon…

Fabiano Castro & Clem represents insurers in third party civil litigation matters arising from industrial accidents and injuries such as automobile and construction accidents, falls and product defects. As our attorneys are knowledgeable in workers' compensation and civil litigation, one attorney handles third the workers' compensation and the subrogation claim to allow for continuity and efficiency in handling. This facilitates the resolution of both compensation and subrogation issues without an unnecessary duplication of efforts or working at cross-purposes in these two very different fields of law. Our goal is to resolve claims efficiently with the maximum recovery from the responsible third party while minimizing the net payment of benefits to an injured worker.