Kink Loses its Appeal in HIV Workers Comp Case Regarding Cameron Bay

On Friday Cybernet Entertainment, LLC, aka Kink.com lost it’s appeal against the State Insurance Compensation Fund.

In short, Kink felt that the state should have defended them against claims for Worker’s Compensation in regards to the Cameron Bay case. For those of you who don’t recall, Cameron Bay tested positive for HIV, and just before doing so she performed a scene with Xander Corvus, where his dick got caught on her braces in her mouth and bled.

Left to right: Darren James, Derrick Burts, Patrick Stone, AIDS Healthcare Foundation president Michael Weinstein, Rod Daily and Cameron Bay
Left to right: Darren James, Derrick Burts, Patrick Stone, AIDS Healthcare Foundation president Michael Weinstein, Rod Daily and Cameron Bay

Next thing you know she pops for HIV and the whole industry went into a full-fledged panic. In the end, three people in all that time ended up testing positive, Cameron Bay, Rod Daily, and Sofi Delgado.

They not only filed a civil lawsuit but they also filed a worker’s compensation claim of which apparently they were awarded and then Kink sued the state for not defending him in the worker’s compensation claim and lost. They appealed and as of Friday lost that appeal.

The court ruled that the State Insurance Fund (for Worker’s Compensation which all employers are required to have) did not have a duty to defend Kink. It’s a long complicated reason why but the short answer is, they deemed Kink “questionable” saying they “had a questionable relationship to employment, and [was] neither a risk, an incident, nor a normal part of” employment.

The other reason give was that the “policy does not extend to “damages or bodily injury intentionally caused or aggravated by” Kink.com. It bars coverage for a claim arising from “(1) an act done with intent to injure, i.e., an act deliberately done for the express purpose of causing damage or intentionally performed with knowledge that damages were highly probable or substantially certain to result, or (2) an act [that is] inherently harmful, i.e., an intentional wrongful act in which the harm is inherent in the act itself.”

Kink claimed the harm wasn’t done intentionally so the state fund should have defended them against worker’s compensation claim but the district court and then the appeals court rule otherwise.

Cybernet (Kink.com) did not take adequate steps to protect its performers and prevent the spread of sexually transmitted diseases (STDs) and HIV during pornographic shoots, causing injury. The plaintiffs alleged that Cybernet did not provide adequate personal protective equipment, such as condoms, to performers; did not test certain performers; and otherwise violated California regulations meant to prevent the spread of STDs and HIV in pornographic shoots.

They also got them for “intentionally and recklessly violated statutes and public policies” and intentionally misrepresented to the plaintiffs that the shoots would be safe, or approved of such actions, causing emotional harm.”

The compensation bargain does not include an employer’s intentional violations of health regulations or fraud by an employer or its agents.

So what this means is, again I’m not a lawyer but to me this means is, if you don’t provide condoms and anything happens on a set, you are fucked.

19 Replies to “Kink Loses its Appeal in HIV Workers Comp Case Regarding Cameron Bay”

  1. Kelli

    No as far as I know he tested negative however there was a scandal back then for those that remember, he of all people was doing a movie for Axel Braun during the moratorium. Below is the original story when it happened about him.

    _____________________

    I am sick to my stomach over what I heard today. I was so sure what I was being told was just gossip. No way no how any of this “gossip” was true. Just not possible. Boy was I wrong, oh so wrong.

    On September 7th Axel Braun tweeted …

    Dear Las Vegas, thank you for the crappy food, the heat stroke, and the emphysema-inducing secondhand smoke. Bye. pic.twitter.com/MCnyzYOupt
    Lacey Logan responded …

    @axelbraun Hmm…must’ve lost your ass. If you had hit a jackpot you’d be loving Las Vegas. At least u always win at the AVN awards. ?
    Axel Braun [email protected]

    @MsLaceyLogan LOL no gambling…just shooting

    _________

    If you scroll back in his timeline you see they started shooting Spiderman XXX 2 on September 4th and the male talent they cast in the lead was none other than Xander Corvus. How in the world do you justify shooting less than 30 days after someone tested positive for HIV in our industry and even worse, that someone had unprotected sex with Xander Corvus during that time??!??!?!?

    How irresponsible can you get? What is wrong with you?

    Vivid how could you allow such a thing? You are supposed to be a leader in our industry and you allow something like this to take place in your own organization!

    When I first heard this rumor I was like no way no how. There is absolutely no way Vivid would ever do anything so seriously irresponsible and careless. But I was wrong.

    As a reminder, Xander Corvus had unprotected sex with Cameron Bay just before she tested positive for HIV. Xander Corvus has since tested negative at least one time, possibly twice for HIV but he is also still very much within the window of exposure and it is very possible he may text positive in the near future.

    My next question is to the FSC. How is Xander Corvus is freed to work again so soon? IT HASN’T EVEN BEEN 30 DAYS!!!!!!!!!!!!!! Why isn’t he given a mandatory 60 to 90 day quarantine for the safety of the ENTIRE industry?!?! Why would you ever allow Xander Corvus to return to work? How could you possibly clear him in such a short period of time? YOU KNEW FOR A FACT HE HAD DIRECT EXPOSURE TO SOMEONE WHO JUST TESTED POSITIVE FOR HIV!

    Need I remind you that Rod Daily’s initial text, taken the same time Xander Corvus took his also came back negative? So if we would have allowed him to return to work right away, then we would have found out that the very next week when he took another text ON HIS OWN MIND YOU, he tested positive.

    We as an industry don’t want government regulation, but we go right out there and do shit like Vivid did and then bitch when the government tries to force us to protect ourselves by using condoms.

    I’ve seen a lot of stupid shit in our industry in the last 18 years but this one just cuts the cake.

  2. Karmafan

    As I said in another thread… between the foolish business practices here in the states and LP in Europe in the not too distant future ALL talent with be HIV+.

  3. mharris127

    If this is the tact California officials are going to take, all production will have to move to another state. Kink has already moved all production except The Upper Floor (which is dependent on the SF kink community) to other states because of the Cameron Bay case. State Fund still has to pay the workman’s comp claim (probably for the rest of Cameron’s life since she cannot continue to work in porn or many other professions, certainly not any profession paying what porn does — the fact that she didn’t get AIDS on set might not matter in a wage replacement claim although this should keep State Fund from the requirement to pay for her AIDS medical treatment) but since they didn’t defend the case and just paid up that means porn company workman’s comp premiums in California are going to skyrocket — and State Fund also won’t defend the employer in the workman’s comp claim which can open them up to a summary judgement in civil court for any perceived negligence on their part since a state agency (which State Fund is no matter what they may claim — the “company” is state run, was created by the state and is the required workman’s comp insurer for most California employers) has already found them responsible.

    I see all of porn moving out of California within the next couple of years now that this decision has been handed down. I think State Fund did the right thing by paying up for the injury but should have also defended Kink based on her lifetime workman’s comp wage replacement benefit entitlement (which since the AIDS transmission didn’t happen on set and that is provable I think State Fund had a good case to defend in an administrative agency hearing or in court) to protect them from summary judgement on any civil case that Cameron files in state court. I don’t know if a California state agency declaration of responsibility would directly affect any federal cases or not but I am sure it would be taken into consideration. At least the AIDS infection didn’t happen on a Kink set so State Fund (hopefully) isn’t on the hook for her medical treatment for that. Kink needs to settle the case and put a stop to it or the company will be bankrupted from civil judgements. Cameron is probably desperate, she will likely take a couple million now rather than fight for more in five or ten years and her lifestyle has probably been crimped living on State Fund wage replacement benefits. Kink would also spend what it would take to settle this once and for all defending it even if they did somehow win.

  4. Kelli

    Yes sorry, thank you, Matthew. I should have mentioned that. I did note that I’m not a legal professional but also should have noted that I’m also not a medical professional.

  5. mharris127

    You are welcome, Kelli.

    It is too bad the state of California’s officials (and AHF’s Michael Weinstein who evidently has the political power to prod them) seem to have it out for the adult film industry. California has already lost millions in tax revenue and probably 300-400 non-performer jobs (film editors, grips, directors, producers, etc) out of their campaign to rid the state of this industry. Performers must now commute from wherever they live to several far-flung locations in the western part of the US including Las Vegas (including Wood Rocket and much of Kink’s production), Miami (there was some production in Miami pre-2010 but there is more now because of this, too many companies to list), Seattle (one Kink director), Oregon (one Kink director), Vancouver (Washington — Intersec/Insex) and for a few companies still in Los Angeles (New Sensations, Wicked), if doing gay scenes San Francisco still has two companies that I know of (not into that scene so my knowledge is more incomplete but Treasure Island Media and Corbin Fisher are in SF) although straight/lesbian production has pretty much stopped in SF. Derek Hay has had to open another office in Las Vegas to handle booking talent there. This is too bad, if I were to direct or produce adult film I would much rather have lived in San Francisco than Las Vegas or Miami but it is too onerous to produce anywhere in California right now.

  6. LurkingReader

    not a lawyer, not a doc but know a few things about OSHA. I knew this would take time and many comments here prove this is the result I expected. Anyway the reality is the insurance company chose to spend money making a stand that they were not obligated to pay for the defense of these claims which also means they aren’t going to cover claims or settlements. Barring some spectacular legal feat Cybernet will also lose or be forced to settle the associated civil suits if they haven’t already. Not sure of current lawsuits status as I haven’t followed closely or checked court records since Cybernet was asking everyone in PASS to step up and help them in effort to block court from access to anonymized STD data to back up their claim that porn is safe.

    This is not limited to California. OSHA regulations have MINIMUM standards set by the feds, states can choose to administer the program and those that do generally put it under the same umbrella with other state labor functions such as workers comp. The labor departments also share information.

    Some History on why this ruling is so devastating to the industry. In 1998 a performer contracted HIV and filed a workers comp claim. Through that ten year process efforts to shield the stakeholders claiming performer was an ‘independent contractor’ failed and were finally denied by California Supreme Court.

    That separated ‘independent contractor’ for tax and labor purposes.

    Since then all sorts of other rulings affecting performer classification by state labor agencies have happened too. Those classification rulings are the guideline used by other states if or when these cases come across their desk.

    Porn has in essence become a mainstream industry and the mainstream is catching up on holding porn to the same standards as other American industries.

    Bottom line: Regardless of what state you’re in a performer can file a claim with OSHA. They do not need to prove their injury or illness happened on that shoot…only that it could have. If you are stakeholder in content production it’s time to consult with an experienced labor attorney and do what you can to cover your ass.

  7. mharris127

    Lurk, anyone with a supposedly on the job injury can file an OSHA claim. The question is will the state be nearly as aggressive as California regarding porn set injuries. In most states, the answer is no. Nonetheless, Kink moved production out of Cal-OSHA’s reach and they have already paid or settled on the $79K fine for Cameron’s incident.

    Regarding workman’s comp, the subject of this article, State Fund is on the hook for the popped tit implant, no question. They would also be on the hook for wage replacement while her tit is healing. However, as I understand it they didn’t fight the lifetime wage replacement for the AIDS infection (since she can never work as a porn performer in straight or lesbian porn ever again and she doesn’t have a dick to perform in gay porn so that isn’t even remotely an option) even though she obviously didn’t get AIDS on a Kink set — which since State Fund is a state agency due to their structure and direct connection to the State of California (no matter what they claim) puts them on the hook for Cameron’s civil court negligence claim regarding AIDS coming from their set (even though we all know she didn’t get AIDS from the Kink set as her sexual partner that day tested negative and is still performing today). As I understand it that is what Kink was trying to get State Fund to defend. Their liability insurer also refused to defend and received a court decision in their favor a couple of years ago. Now Kink will be forced to settle or pay to fight this case, potentially all the way to the SCOTUS. If I were Peter and Alison I would attempt to settle for a couple million dollars and be done with it. I think Cameron would take the cash (most would and if she has a decent attorney not doing the AHF’s bidding to bankrupt Kink the attorney would advise a settlement now rather than driving the company into bankruptcy court and not getting a dime). Kink has already moved 95% of their production out of California’s reach, they can move everything else to Nevada quite easily if State Fund jacks up their workman’s comp premium anyway and we all know that State Fund is going to jack up all porn company performer premiums anyway.

    It should be noted that at the end of 2017 Kink severed all directors and production from Kink employment. They all now have independent companies selling their content to Kink and responsible for their own workman’s comp, liability and other expenses. This also severs all talent from being able to cause Kink corporate liability, meaning that if another Cameron Bay incident takes place Kink can’t be sued for it and is not liable. Also, except for The Upper Floor all production is outside of California where the states involved will be much less aggressive in their enforcement of condom regulations, OSHA fines for any injuries and the workman’s comp insurers will be more likely to fight lifetime wage replacement claims like Cameron’s in California (which by all rights since she didn’t get AIDS on a Kink set she should not have been able to receive).

  8. LurkingReader

    @mharris

    For the last five years I’ve been accurately predicting what and how OSHA processes against porn will play out and warning people that other state OSHA were watching Cal/OSHA closely to address porn in their states.

    Nevada is in the same Federal Region as CAl/OSHA and already has existing court tested barrier requirements. That is why the brothels said whoa hold up to porn openly advocating moving shooting bareback content to Nevada.

    By requiring clients to use condoms brothels meet minimum standards using barriers to prevent EXPOSURE to potentially infectious material. It doesn’t matter if anyone else on that Kink set tested positive or not because Cameron Bay can prove she was ‘exposed to POTENTIALLY infectious material’

    The law and regulations in place since 1990 require prevention and minimizing exposure to lowest permissible levels. Anyone paying attention to this play out from the stakeholder liability point of view understands exactly why FSC is pushing PREP and talking about expanding PASS without changing existing testing panels.

    Through ten years of contentious back and forth with OSHA the industry was fighting barriers AND presenting Lowest Permissible Level arguments. When the draft proposal came out in 2013 there was no consensus of what number was a ‘safe’ VL (viral load). All the experts agreed 1000vl was a risk for transmission, some experts argued 200 was safe, others said 400, and they all had studies from different demographics.

    Since 2012 the experts started moving to less than 100vl copies is low risk. 2013 the industry chose tests to weed out NEW (acute) infections that would or could spread.

    Through 2013 the FSC approved test panel was a big hot topic. Some will recall John Stagliano bragging he could pass the industry test…Kudos to him for achieving & maintaining ‘undetectable’ viral load. Test providers offered ‘complimentary hep c’ tests, performers got pushback for questioning Hep C. Diane Duke got blasted for unilaterally deciding to change testing from monthly to a bi-weekly protocol.

    Behind the scenes the complimentary Hep c tests provided FSC with anonymized data. PREP minimizes exposure risk, requiring hiv+ performers to test using the same test currently used presents a policy of industrywide self regulation to achieve lowest permissible exposure risk. Upping testing to bi-weekly minimized the exposure risks while addressing the syphilis nightmare from 2012 biting the industry in the ass big time. Bringing EPL in was important to getting the gay community willing to test.

    now back to your rant because you raise some good food for thought. The busted implant medical expenses were promptly paid by Kink they are included in the civil suit to prove the scene went beyond the written consent…it has nothing to do with why the insurers wouldn’t defend or settle the civil suits. The workers comp & private liability insurers wouldn’t defend any part of the civil suit because there was ‘preventable’ EXPOSURE…she tested positive …they knew they couldn’t win.

    This case will not go to SCOTUS because there is already too many cases with existing workplace liability rulings in place. Kink lost at OSHA they appealed and lost. Once Kink lost the OSHA appeal it created ‘facts’ for the civil suit the insurers couldn’t defend and wouldn’t settle on. Kink would lose any appeal to higher courts on the same facts the insurers used to win their cases with.

    When it comes to workplace exposure cases it doesn’t matter if it is HIV, carcinogens, chemicals, or anything else…IF IT COULD HAVE HAPPENED AT WORK …IT HAPPENED AT WORK unless the employer proves it could not have. Saying Cameron didn’t get HIV from that scene even shouting it from rooftops makes no difference once OSHA determined there was in fact exposure to POTENTIALLY infectious material on that set.

    Kink initially moved their production to Nevada. It wasn’t a solution that would cover their asses going forward. Kink covered their ass going forward by shifting the liability burden to the now independent director/producers selling Kink their content.

  9. mharris127

    Federal law may be the same in Nevada but the state has to be willing to enforce it in order for it to actually apply. So far Nevada hasn’t made an attempt to force condoms on porn producers. Nevada is known for being more laissez-faire when it comes to enforcing labor law. We will see what happens but I don’t expect Nevada OSHA to do Michael Weinstein’s bidding in running porn out of the US.

    As for the lawsuit, Kink is fucked. They need to try to settle the case for a couple million dollars and move on. When State Fund approved lifetime wage replacement for Cameron based on the AIDS infection (even though we all know it didn’t happen on a Kink set) and refused to fight that part of the claim (probably to further California’s and Weinstein’s campaign to run porn out of the state) they threw Kink under the proverbial bus. By all rights State Fund should have fought the lifetime wage replacement, since the AIDS infection wasn’t on Kink’s watch they had a good case and probably would have won a court fight on that one. The tit repair and wage replacement during recovery was an iron clad responsibility of State Fund but anything to do with the AIDS infection was not.

  10. mharris127

    I also need to note that OSHA rulings don’t bind State Fund. Actual events and the actual consequences bind workman’s comp insurers — and since the AIDS infection didn’t happen at Kink it should not be paid using Kink’s policy. State Fund paid anyway. I think California had other motives and thought they could use that to run the industry out of the state. I bet within two years all porn is produced outside of California based on this ruling.

  11. LurkingReader

    @mharris you’re talking out of your ass again.

    OHSA rulings after reconsideration absolutely do bind other agencies and civil courts. Those rulings create FACTS which can be appealed through the civil court system like the 1998 case was …they lost.

    Pushing this ‘she didn’t get it at kink’ narrative is the real threat stakeholders (content producers) face. The law doesn’t give a fuck if she got it on the set or not …only that she can prove she was exposed to potentially infectious material.

    For anyone with their head in the sand or waiting to see how this played out please treat this ruling seriously. To use an analogy this amounts to a positive test and it anyone at risk needs to test aka have their business practices reviewed by a qualified experienced labor lawyer.

  12. mharris127

    Please explain how an OSHA ruling can bind the state’s workman’s comp insurer? There is nothing in case law doing so in any state in the Union. Yes, State Fund happens to be a quasi-state agency but there is nothing requiring them to pay a claim based on OSHA. That would be asinine. Workman’s comp is paid based on actual injury, not pie in the sky claims. This was a political screw job for the adult film industry and especially for Kink who if any of their back office remains in California will pay higher workman’s comp premiums for years based on a lifetime wage replacement decision by State Fund that had nothing to do with what actually happened on that Kink set. Lifetime wage replacement is not taken lightly in a workman’s comp claim (in general) and it shouldn’t have been in this case, either. In most cases wage replacement is approved only long enough to heal and if need be train for another job. There are other jobs Cameron could do even with HIV and she should have been required to do so like anyone else would have.

    I agree that the OSHA ruling can bind the courts or at least strongly weight the scales in favor of one party in any civil lawsuit based on their ruling (which the Cameron Bay case is). In any other situation it would not bind a workman’s comp insurer — whether it be a state quasi-agency as in California or a private insurer as used in Michigan. This was a screwjob against Kink and against the adult film industry, plain and simple. In the end it will cost the State of California more than any other parties — including the loss of 500 or so mostly high paying jobs and the resulting state tax revenue. This will be Las Vegas, Nevada’s; Florida’s (mainly in Miami although there is production in Tampa as well) and possibly Washington’s (the state, not DC) and Oregon’s where some production has already moved.

  13. LurkingReader

    In California DIR ( Division Industrial Relations) https://www.dir.ca.gov/ oversees numerous functions including OSHA and Workers Comp. Every function under DIR can and does share information, many of their processes depend on information sharing.

    If a worker is injured on the job and files a workers comp claim this will be noted and in some cases gets the ball rolling on OSHA. Shared information is a way to speed up remedies for ill or injured workers, avoids duplication efforts and saves taxpayer money.

    ig construction worker saws hand off

    This is serious and reportable injury. A reputable company with IIPP (injury illness prevention plan) will have a list of what needs to be done and who needs to be notified to determine if the cause. A severe injury like that would have a risk management officer on the phone before the worker lands in an operating room.

    OSHA is the first call and is made by the employer.
    The worker or a lawyer on their behalf files a Worker Comp claim.

    OSHA investigates the workplace for any safety violations. Workers comp looks at medical records to rule out drug use and investigates the workers story.

    ig: worker tears rotator cuff

    Worker goes to doc ..it hurts …diagnostics and tests run and it is likely a workplace injury. worker or lawyer files worker comp claim.

    lets say that is 10th work comp claim for same injury against same employer; workers comp questions the employer as deficient in protecting workers against foreseeable injury….they share info with OSHA.

    now back to cases like KINK. OSHA investigates then issues citations for documented workplace safety violations. The citation comes with fines…you can call it an allegation at this point. What happens next depends on which options the workplace selects …usually one of the following but there are other options too.

    *Employer can fix the violations in a certain amount of time to make penalty fines go away in part or even entirely for most issues.

    *Employer can contest the violations as bogus (like challenging a speeding ticket but more like getting rid of drunk driving arrest with a breathalyzer)

    * Employer can accept the violation (ticket) and ask for a reduced penalty.

    When violations are contested, it goes through an administrative law process. First a hearing with three DOSH (div occupational safety health) board members . Some employers try to do this part w/o a lawyer, usually this result is regret because now they have to fix the issues, pay increased penalties and a lawyer to keep their ass out of hot water moving forward.

    Employer can appeal the board decision. This goes before an administrative law judge who determines FACTS just like a judge in any US court. Both sides are represented by lawyers and they are arguing every possible legal technicality applicable to the case . The outcome is called a Ruling After Reconsideration. or similar wording with same effect.

    The effect of the Ruling After Reconsideration is that it is used in civil courts as FACT. An employer trying to overturn it is dealing with a process similar to overturning a criminal conviction. The appeals court only looks at what the court below them did to look for errors…they don’t rehash the citation.

    In a civil suit the Ruling After Reconsideration is used as proven FACT so the employer goes against a what looks like a stacked deck.

    That is how an OSHA ruling becomes binding and the process of how a citation can deal a lethal blow to a strong company that worked very hard to dot their i’s and cross their t’s.

  14. LurkingReader

    PS left out that process very similar for a workers comp claim. The initial claim ruling gets appealed to board then administrative law judge.

    The rulings from any part of any related process are admissible but not binding as facts until they are issued by administrative law judge in a Ruling After Reconsideration.

  15. Hop Sing

    Matthew Harris has made a career out of posing as an industry consultant on porn forums. A fountain of misinformation.

  16. mharris127

    Prove where my post was “misinformation”, Hop Cocksucker. You have made a “career” of trying to make me look like an ass. The ball is in your court. Now that I have cleared up the fact that when referring to Cameron’s lifetime wage claim approval they (legally) should have used the fact that she didn’t get AIDS on a Kink set and made her get training for another job rather than making a charge against Kink’s policy. In any other claim that would have happened but the state and Weinfuck colluded to make it even worse for porn producers in California in their campaign to run them out of the state. OSHA is binding on courts for negligence claims but workman’s comp is another animal — even in states where the workman’s comp insurer is the state or a quasi-state agency like in California. OSHA admin law judges ruling after reconsideration findings are not intended to bind any insurer, serious negligence can be found but that doesn’t (under normal circumstances) get someone an almost automatic lifetime wage replacement like Cameron ended up with no matter what the negligence finding states. An event actually has to take place to bind a workman’s comp insurer and the AIDS transmission used to give Cameron her lifetime wage replacement didn’t happen on a Kink set. Charge the right policy or make her get a job.

    I will state again for Hop Cocksucker that I don’t have a problem with Cameron getting her tits fixed and her mouth looked at by a dentist. I don’t have a problem with wage replacement during her recovery from tit repair surgery, either. My problem is the lifetime wage replacement she was given as if the AIDS transmission took place on Kink’s set. We all know she got AIDS from her personal sex life or her IV drug use. “Could have happened” is permissible for OSHA and negligence claims but not for workman’s comp claims (and I have dealt with workman’s comp claims for an employer before so don’t tell me I am wrong). How the fuck do you get AIDS from an HIV negative person (Xander Corvus — who still performs to this day) like is evidently alleged in this workman’s comp case? As for the other people on set that day, no transmissible contact was made by any of them. You cannot get AIDS from someone shoving their finger up your ass!

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