Jones|Clifford - The LEGAL Update
Fall 2018
In This Issue

Jones|Clifford Steps Up to Support Ironworker's Mural Project

The Mayor Pays a Visit

Jones|Clifford Expands Cancer Presumption in Workers’ Compensation Cases

Filing a Protective Claim for a Tax Refund

Jones|Clifford Steps Up to Support Ironworker's Mural Project

When retired Ironworker Russ Kelly agreed to take over the effort of the Sacramento Ironworkers Retirees' Club to create a mural in the Ironworkers Local 118 Union Hall, he already knew who he would approach first for financial support: Jones|Clifford partner, Steve Bell.

Bell, who has represented ironworkers in both workers' compensation and personal injury claims for over 30 years, willingly kicked off the fund drive with a generous donation which led to a final dedication of the mural this past spring.

As Kelly noted recently, "The idea for the mural has been around among the retired Local 118 members for over 20 years, but we could never get the job completed, so we decided to use the same principles we use on the job site."

Kelly, who retired in 2014 after 40 years in the trade, added, "On any job, we're always given a date when we have to leave the site, so when the mural committee started planning for the mural, we picked a six-month completion date for the final dedication and celebration. That way we knew it would be done on time."

Jones|Clifford has been representing Union ironworkers in all seven field local unions in the State of California for over 30 years. Bell, who worked as a health and safety consultant before he received his law degree, has a wealth of experience in representing injured workers, whether it's a personal injury case or workers' compensation.

He has a rare combination of practical construction/safety experience with years of legal expertise that allows him to understand and navigate the complex issues that arise in construction injury cases. "I am truly privileged to be able to represent the hardest working people in the country," Bell often remarks.

Kelly, a Client Liaison/Investigator for the law firm, says the experience Bell brings to the table benefits the injured worker in many ways.

"Whenever there is a third party involved in a case, it can become a personal injury claim, and deciding the best course of action can be crucial," Kelly notes. Steven Bell's father Stanley Bell, represented Union Ironworkers for over 40 years so it runs in his blood.

Kelly is often among the first people workers see after they are injured, since many employers do not offer advice and insurers are focused on returning employees to work, often against doctors' advice. "Since I worked in the trade, workers feel comfortable talking with me, and I can go over the facts of the case," Kelly says.

He points out that he has suffered his own share of workplace injuries during his 40 years on the job, so it helps him understand the frustration many workers have in dealing with the state system.

He often travels to work sites, but it's his understanding of the ironworkers' jobs that makes a real difference in gathering facts. "We speak the same language," he added.

That experience came in handy in developing the guidelines for the mural that was recently completed at the Ironworkers Local in Sacramento. Kelly says, "We wanted to represent the retirees, the apprenticeship program, and the Past, Present and Future work of ironworkers. We also added a tribute to the 'Helmets to Hardhats' program - and I think we succeeded."

"Helmets to Hardhats" is an effort to recruit new ironworkers from the ranks of soldiers leaving the military, allowing them to apply their skills to the building trades.

Visitors to the local will recognize Sacramento landmarks such as the Tower Bridge, the Wells Fargo Building and Redding’s iconic Sundial Bridge, along with other state landmarks built by ironworkers.

The mural artist, Robert Lindsey, who is the son-in-law of ironworker Jerry Murray, began by projecting photographs, supplied by the ironworkers, on to the blank wall. He was then able to move and rearrange them into the outline for his painting.

The dedication party in the spring included state and district officials, along with a picnic and raffle held at the Sacramento local. Over $17,000 was raised by the retirees, exceeding their original goal, and the extra funds will help fund local charities and the annual Ironworkers Children’s Christmas Party.

"We even commissioned the apprentices with creating a ‘topping off’ beam that everyone signed, just like the ones we install on all ironworker projects," Kelly said.

mural of ironworkers

One panel of the new mural features Sacramento scenes including the Tower Bridge to West Sacramento.

Russ Kelly

Russ Kelly, Client Liaison / Investigator for Jones Clifford addresses the crowd at the unveiling ceremony.

community members

Four of the six mural committee members stand in front of the mural at the Ironworkers Local Headquarters in Sacramento. Shown are (left to right) Cliff Vargus, Russ Kelly, Jim DeRossette, and Jack Workman.


Visitors to the dedication ceremony get a chance to view the full mural at the Local 118 Union Hall in Sacramento.

The Mayor Pays a Visit

Mayor with Alex Wong

Mayor London Breed and Alex Wong

London Breed, the first African-American woman to be elected Mayor of San Francisco stopped by the Jones|Clifford offices just a week after her election in June. Jones|Clifford partner Alex Wong, greeted the new Mayor and noted, "The firm is proud to have supported Mayor Breed in this historic election."

Jones|Clifford Expands Cancer Presumption in Workers’ Compensation Cases

Officer Michelle Ligouri

Officer Michelle Ligouri

Jones|Clifford partner, Alexander Wong, successfully expanded the scope and reach of the workers' compensation cancer presumption for public safety employees.

After losing at trial, Wong's successful appeal of the judge's decision led to a new decision that applies the cancer presumption to a greater number of police officers, deputy sheriffs, California Highway Patrol officers, firefighters and other public safety officers.

The significant victory, expanding the applicability of the cancer presumption, was recently upheld by the California Supreme Court.

The story begins with an injured worker, Michelle Ligouri, a police officer for the City of Concord and the City of Pittsburg for nine years, who was diagnosed with breast cancer. Wong, who specializes in public safety cancer cases, filed a claim on her behalf. Not surprisingly, both the City of Concord and Pittsburg denied her claim. Under California Workers' Compensation Law, specifically Labor Code Section 3212.1, if certain public safety officers are exposed to carcinogens on the job, and later develop cancer, the cancer is presumed by law to be work related.

However, the employer can try and rebut the presumption by providing evidence that proves there is no reasonable link between the carcinogens the officer was exposed to and the cancer that later developed.

After depositions and other legal discovery, the parties agreed to use an Agreed Medical Examiner. The medical expert agreed that Officer Ligouri was exposed to carcinogens on the job, and also confirmed that she developed cancer. However, the doctor opined that according to many textbooks and studies, there is a minimum 10-year latency period between exposure and the manifestation of cancer.

He suggested that, according to many studies, it takes cancer at least 10 years to develop after the injured worker is exposed to the cancer causing substance. Because Officer Ligouri only worked as a police officer for a little over nine years, the doctor believed that carcinogens she was exposed to as a police officer could not have caused her cancer because the exposures were less than 10 years from the actual manifestation of cancer. The expert relied upon several other court decisions that made similar findings.

During the doctor's deposition, Wong got him to admit that the 10-year latency period was a somewhat arbitrary threshold. Further, the doctor stated that because Officer Ligouri had a very aggressive form of cancer, the 10-year latency period might not apply.

Despite conceding these points, he was not willing to change his opinion, in part, because many existing cases supported the 10-year bright line rule. At trial, the judge ruled against Wong saying that because of this artificial 10-year threshold, the cancer presumption was rebutted. Judge Terri Ellen Gordon opined that because Officer Ligouri had less than ten years on the job as a police officer, the cancer was not work related.

Wong then appealed that decision to the Workers' Compensation Appeals Board arguing that because the 10-year rule was arbitrary, and the doctor had opined that the aggressive nature of Officer Ligouri's cancer could result in a shorter latency period, the burden was on the City of Concord and the City of Pittsburg to prove that the shorter latency period did not apply.

Wong argued that Judge Gordon improperly placed the burden of proving she was an exception to the latency period on Officer Ligouri. Instead, he argued that the burden was on Concord and Pittsburg to prove that the 10-year latency applied to Officer Ligouri in spite of the aggressive nature of her cancer.

Attorneys for the City of Concord and City of Pittsburg could not prove a negative: when the burden was placed on them, they were not able to rebut the presumption of industrial causation. A three-member panel of WCAB Commissioners agreed with Wong, and unanimously overturned Judge Gordon's decision. Although Concord and Pittsuburg appealed to the Court of Appeal and the Supreme Court, Wong successfully defended the new decision. Eventually, the California Supreme Court re-affirmed the new application of the law.

Now, as was originally intended by the California State Legislature, the burden of proving that latency can be used to rebut the presumption of industrial causation unequivocally rests on the employer. As a result, many more brave public safety officers who are exposed to carcinogens on a daily basis and who tragically develop cancer will be entitled to workers' compensation benefits in California.

Officer Ligouri has been able to return to full duty as a police officer for the City of Concord and as a result of the decision, all of her costly medical treatment was paid for by workers' compensation insurance, and she received 4850 benefits for her time off during treatment and recovery.

Wong noted, after the long court battle, "It's sad that, in addition to fighting cancer, Officer Ligouri also had to fight her own employer to get the benefits to which she was legally entitled." Wong also noted he was grateful for the opportunity to represent Officer Ligouri during her struggle, and was proud to have made new case law that benefits public safety officers throughout the state.

Filing a Protective Claim for a Tax Refund


When a public safety officer or firefighter is permanently disabled from performing his or her regular job duties due to a work-related injury, he or she will likely be entitled to a disability retirement. In most cases, this carries significant tax benefits compared to a regular service pension. However, depending on the nature of one's injury and the retirement system to which he or she belongs, obtaining a disability retirement can be a lengthy process that could take several years.

Because of this delay, many people choose to take a regular service retirement while an application for disability retirement is pending. This allows for an income during the delay while the disability retirement application is processed. If the disability retirement application is subsequently approved, the tax savings will be retroactive to the effective retirement date, and the member can file an amended tax return to recoup the taxes that were previously paid under the regular service pension.

However, in most cases, the IRS only allows amended tax returns to be filed within three years. What happens if the disability retirement is not approved within three years of the retirement date? In this scenario, members are strongly encouraged to file a protective claim for a refund with the IRS. This will allow an individual to recoup any taxes that were paid beyond the three-year statute of limitations to file an amended return.

A protective claim for refund can be filed with the IRS when the right to a refund is contingent on future events and may not be determinable until after the statute of limitations expires. A valid protective claim does not have to list a particular dollar amount or demand an immediate refund. However, a valid protective claim must:

  • Be in writing and signed,
  • Include your name, address, SSN or ITIN, and other contact information,
  • Identify and describe the contingencies affecting the claim,
  • Clearly alert the IRS to the essential nature of the claim,
  • Identify the specific year(s) for which a refund is sought.

A protective claim for refund must be mailed to the address listed in the instructions for Form 1040X, under Where To File. Generally, the IRS will delay action on the protective claim until the contingency is resolved (i.e., until the disability retirement is approved).

At Jones|Clifford, LLP, we can help advise you when you may want to consider filing a protective claim for a tax refund with the IRS. However, we are not tax attorneys and generally do not provide advice regarding tax matters. We strongly encourage you to consult your accountant or other tax professional if you feel that filing a protective claim for a refund may be in your best interest.

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