I am a company in California that did not have Workers Compensation at
the time an employee was ?injured?. However, I have been paying all
his medical bills out of my own pocket because this is the least I
could do. However, I can no longer pay since the company has closed
down.
I am looking for attorneys that specialize in helping employers, NOT
employees, to represent me in talking to the Uninsured Employers Fund
agency in Northern California.

I am trying to find out that if the California Uninsured Employers
Fund has been successful in reaching a civil judgment against me
personally, will personal bankruptcy relinquish me of the financial
burden?

The California Uninsured Employers Fund is not aware, or has not
attempted to come after me yet, but is it better to turn myself in
instead of waiting for them to come to me first?
And if so, should I us an attorney or should I just do it alone so
that they dont think I am bringing in the bulldogs to fight for me?

Is there anyone that has had experience with going to "court" where
the Uninsured Employers Fund sued them and what were their tactics to
help them?

As much research possible is appreciated, thanks.

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Request for Question Clarification by bobcooper-ga on 13 Apr 2004 16:51 PDT

What form of business was your company?  Sole-proprietor? 
Partnership? Corporation?  LLC or LLP?

Thanks.

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Clarification of Question by benaiahone-ga on 14 Apr 2004 08:01 PDT

It is a California C Corporation. 

However, it is currently suspended and we are trying to get it
current, but at the same time, it is no longer of any use to us and
want to close it completely, so bringing it out of suspension may not
be necessary, or better.
But, then again, a suspended Corporation cannot conduct or transact,
enter into contracts, fight or defend a lawsuit.

Dear benaiahone-ga,

A disclaimer: This is not intended to substitute for the advice of an
attorney licensed in California and experienced in workers?
compensation litigation.

Addressing your third question first: All things considered, it is
probably not advisable to ?turn yourself in? by reporting these facts
to the Division of Workers' Compensation or the Uninsured Employers
Fund unit.  Ordinarily these agencies only begin investigations based
on employee complaints ? and your former employee may not complain to
these agencies.

Moreover, the Uninsured Employers Fund ordinarily becomes involved in
a case like this only after an employee files suit in civil court or
initiates proceedings before the Worker Compensation Appeals Board. 
Briefly ? the Uninsured Employers Fund is a pool which pays judgments
awarded to employees by the WCAB when the employer fails to satisfy
the judgment.  That is, if an employer fails to pay an award won by an
injured employee before the WCAB, then the Uninsured Employers Fund
pays the award and, in turn, brings suit against the employer to
recoup the payout.  Thus, the Uninsured Employers Fund is neither the
injured employee?s first recourse nor the employer?s first problem.

If the Uninsured Employers Fund then wins a judgment against the
employer, this debt cannot be discharged in bankruptcy.  This issue
was decided by the Ninth Circuit in In Re Camille, 94 F.3d 1330
(1996).  This addresses your second question.

Next, addressing your first and last questions: Because, as I
mentioned, the Uninsured Employers Fund is neither the injured
employee?s first recourse nor the employer?s first problem, you will
probably want the assistance of a lawyer with experience in
representing employers through various stages of workers? compensation
litigation and in different forums.  Using a tool like
Martindale-Hubbell (martindale.com), identify lawyers and law firms
that practice workers compensation law exclusively and advertise
representing employers rather than employees.

I find 4 law offices in northern California particularly fitting these
criteria.  In no particular order:

Cuneo, Black, Ward & Missler 
8880 Cal Center Drive 
Sacramento 
916-363-8822

Harbinson Tune Kasselik
100 Bush Street
San Francisco
415-986-3992

Antoinette Gary Mills,
2 North Second Street
San Jose
408-795-1515

H S Law Group APC 
210 North Fourth Street
San Jose
408-790-5320

I hope that you find this information useful.  I can provide further
information to elaborate on this answer, if you like.

Resources used:

Herlick, Stanford D., California Workers' Compensation Handbook,
published by MatthewBender, ISBN: 0327163305

California Jurisprudence, 3d., published by West Group

I particularly relied upon the latter volume in preparing this answer.

"LexisNexis"
http://www.lexis.com  

"Martindale-Hubbell"
http://www.martindale.com  

Good Luck.  I hope this helps.

bobcooper-ga

I disagree with this answer.

First and foremost, you have broken the law whether you paid for the
"benefits" out of pocket or not.  I would be more concerned with
mitigating potential damages, than avoiding the U.E.F. - I'll explain.
 There are probably additional benefits due to the worker, or
depending on the nature of the injury, things may not be as bad as you
think.

The law firms that are typically utilized by California insurance
companies and third party administrators (T.P.A.s) typically bill
approximately $125 per hour (they make the profit on the volume of
services rendered).  These firms are typically refered to as "Defense
Firms" in the trade.  There are probably a dozen that could adequately
represent your interests.

I would be more concerned with what doctor your former employee was
treated by and whom that employee is presently being treated by as
well.  Further, the particular W.C.A.B. venue may also be a concern as
well.

Frankly, what I would do is contact a firm which specializes in
workers' compensation defense to potentially represent my interest
before the W.C.A.B.
Then, you need to make a decision.  You need to perform your own "Cost
Benefit Analysis" to determine based upon the amount of profit you
realized from your uninsured business enterprise, is it worthwhile to
provide the benefits that your former employee is entitled.  I pose
that question as there is the civil liability (U.E.F. etc.) and then
there is the potential criminal liability (which the Answer did not
address at all).  It is a felony in the State of California to deny
workers compensation benefits to an injured worker.

I opine that it would be better to pay the benefits due your former
employee, than to even remotely run the risk of potentially being
prosecuted for failing to provide such benefits.  You ask the question
how would law enforcement be aware that I allegedly did not provide
such benefits?  Well, if you do not act and your former employee
actually seeks counsel to file against the U.E.F. (which is a state
agency), they could easily provide a referral to either the Department
of Insurance (D.O.I.) or the Attorney Generals Office (not likely) or
a local District Attorney.

If one pays the benefits, then the risk of a criminal prosecution is
diminished significantly.  How would the benefits be determined? Well,
thats when you call the law firm back and they can assess for you what
the potential benefits would be.  I would not pay more than the $125
per hour under any circumstance, however.  Should a firm agree to
represent you, it should not take more than 8 hours at that rate for
an attorney to assess the "claim."  There may be some additional
expenses as well, though initially the total costs ought not be more
than, say $1,500.

Depending upon the nature of the injury you probably could settle the
claim with your former employee for an amount more reasonable than you
think.  To find out your initial potential exposure, contact the
Employment Development Department to see whether your "employee"
collected state disability insurance for any period subsequent to the
injury.  If so, the E.D.D. would eventually be reimbursed (by you) in
addition to the U.E.F., if your employee filed an Application For
Adjudication before the W.C.A.B.

Your probably asking how do I pay for this?  Well theres always the
profits from the enterprise which you took the risk to start.  In the
alternative, if you're a property owner, I would refinance a property
with an interest only loan (since rates are still reasonable) and
"pull-out" the amount that the law firm above indicates that your
potential exposure may be, in an "attempt" to "self-insure" oneself
after-the-fact.

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