Robin Garcia, right, and a fellow AWP worker clean out a small ditch off Beckman Road on Friday. AWP workers are given the chance to work for 30 days to compensate for their jail time. (Whitney Ramirez/News-Sentinel)

Worker's compensation claim filed against city by convicted criminal

Man was injured while at Grape Bowl as part of San Joaquin County's work program

While picking up garbage at the Grape Bowl recently, a worker attached to the City of Lodi Parks and Recreation Department claimed to slip on an uneven surface and injured his hip. He was taken to Lodi Urgent Care where he received medical treatment and later filed a worker's compensation claim with the city.

A fairly routine occurrence, but the worker in question was not a city employee. He was not even a volunteer. He was a convicted criminal working for the city as part of the San Joaquin County Sheriff's Department Alternative Work Program.

Between six and eight convicts work for the city each day as part of the program that Lodi has been participating in since October. City officials say the workers do jobs that normally wouldn't get done. However, city union members see the workers has cheap, non-union labor.

While this is the first worker's compensation claim to be filed in Lodi by a worker in the program, it is not the first claim by a jail worker.

"There are a whole lot of claims in the state prison system," said Susan Gard, a spokesperson for the California Department of Industry Relations, which handles worker's compensation claim disputes. "Some of them are quite serious."

Gard said that prisoners who hurt themselves while working in prison receive free medical attention, but not disability pay. If they are released and cannot work because of an injury suffered while working in prison, they can receive disability.

The program

The alternative work program in which Lodi is participating allows people who are sentenced to 30 days in jail on average to work instead of serve time, according to Chris Stevens, the Sheriff's office sergeant who administers the program. He said participants in the program have been convicted of minor crimes such as petty theft or driving without a license. After work each day, participants are free to go home and do not spend the night in jail.

About 900 workers countywide participate in the program, earning two days credit of jail time for every day worked. Stevens said workers pick up litter, scrub graffiti from public buildings, pull weeds and wash police cars.

"They do labor that wouldn't otherwise get done," he said. "The program helps relieve overcrowding in jails."

Stevens said workers are assigned to 70 nonprofit and municipal work sites around the county, including city departments in Tracy, Manteca and Stockton. With so many programs it's difficult to gauge the total cost of claims filed by such workers.

Stevens said potential workers are screened to make sure they have not committed violent crimes and they are supervised while they are working.

"We try to take people and help them be successful in the program," he said. "The community benefits from the work that is done."

Stevens said that workers must pay $60 to enroll in the program plus $10 per day. They are fined $50 for every day they do not show up for work and a day is added to their sentences for every three days of missed work.

Lodi City Manager Blair King said that the laborers are not taking the place of other city workers, so the city is not saving money by not having to pay employees. He said program participants do work that city employees normally wouldn't do.

King said that convict workers cleaned the bricks that were replaced on School Street so they can be reused. Without doing this task, the bricks would have been discarded, and the city would have had to pay for new bricks.

But city labor unions have not warmed up to the program. The American Federation of State County and Municipal Employees Local 146, which represents Lodi city workers, has filed an unfair labor practice claim against the city with the state Public Employment Relations Board. The union claims that the city did not inform them about using the Alternative Work Program workers, thus violating their contract.

"We believe this to be contracting out work to non-union employees," union business agent Felix Huerta said. "They didn't follow the law and meet and confer with us."

The worker's comp claim

Stevens said all sites must provide access to worker's compensation if a jail worker is injured. He said claims are between the worker and the job site, which makes it difficult to track the total cost of the claims.

Les Garcia, a spokesperson for the Sheriff's office, said that 35 claims have been filed by workers in the program in the last two years. He said that the claims were for medical care only, not for disability pay.

The City of Lodi would not disclose the identity of the injured worker or provide details about the claim because it contains medical information. City Attorney Stephen Schwabauer said that all claims are sent to the city's claims adjuster, Gregory B. Bragg and Associates.

Claims Manager Paula Fantulin, who handles Lodi's account at Bragg and Associates, said she has not yet seen the claim from the injured jail worker, but she added that she has seen many claims from Alternative Work Program workers in her 20-year career.

"We seen them fairly frequently," she said.

She said once a claim is filed, the adjuster has 90 days to investigate and determine whether the city's insurance should compensate the worker. She said Alternative Work Program claimants are usually compensated for their medical treatment and sometimes given temporary disability compensation.

Ron Roach, a spokesperson for California Taxpayers Association, said cases like this could encourage other jail workers to fake injuries and claim worker's compensation.

"There are always people out there looking to bend the system," he said. "I'm sure the taxpayers are not going to look kindly on this."

Stevens said that being injured does not get someone in the program out of work. He said injured workers are sent home with a medical cancellation and told to report back to work or jail in two weeks unless a judge grants them a longer stay.

Parks Superintendent Steve Dutra, who filed an incident report on the injured worker, refused to speculate whether the worker had faked his injury, but he added that the worker was not welcome back to his department.

"He will not work for us again," he said. "If he didn't want to work, we will find someone else who does."

Evaluating the program

Dutra said that his department is supposed to receive four workers every day, but typically only two show up for work. He said the city can refuse a worker for any reason.

The Streets Division is also contracted to receive four workers each day, according to Street Superintendent George Bradley. Bradley said that, if the workers show up, they generally provide quality work.

"The program has been a little better than average," he said. "When they show up, they have been good workers. We are getting a lot out of them."

Bradely said the convicts are usually from the Lodi area so they don't have to travel very far to the work site. He said that, since the program is still in its infancy in Lodi, it is too early to say if the city should continue participating, but he added that there have been some benefits to the city.

"The program is still very new for us. We are in the process of evaluating it," he said. "It is a possibility for the community to get something back from its investment in the prison system."

Contact reporter Matt Brown at mattb@lodinews.com.

First published: Saturday, December 23, 2006