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Workers’ Compensation Daily News for August 11th, 2022

  • San Francisco Prevails in 11 Week Opioid Trial Against Walgreens
    on August 10, 2022 at 12:03 PM

    After an 11 week trial, a federal judge in San Francisco ruled that Walgreens "substantially contributed" to San Francisco’s opioid crisis by ignoring red flags and continuing to fill prescriptions for drugs. U.S. District Judge Charles Breyer wrote in a 112-page August 10 ruling that the "evidence at trial established that from 2006 to 2020, Walgreens pharmacies in San Francisco dispensed hundreds of thousands of red flag opioid prescriptions without performing adequate due diligence,"

    This case is part of a nationwide multidistrict litigation stemming from the ongoing opioid epidemic. Cities, counties, and states across the country have filed claims against manufacturers, distributors, and dispensers of prescription opioids. While the facts of each case vary, the claims center on the contention that each defendant has contributed to the opioid epidemic that has engulfed the country.

    In this case, the People of the State of California, acting through the San Francisco City Attorney, filed claims against dozens of defendants related to the opioid epidemic in San Francisco. By the time of trial, only four defendants remained.

    The Court held a bench trial from April 25, 2022 to June 27, 2022. Closing argument was held from July 12 to July 13, 2022. By the close of trial, Walgreens was the sole remaining defendant. The other three defendants settled their claims. At trial, the issue was a single public nuisance claim against Walgreens.

    The evidence showed that San Francisco has been battling an opioid epidemic, defined by high rates of opioid abuse and addiction throughout the city, for over two decades. The number of people in the city abusing opioids has substantially accelerated in recent years. Since 2016, opioid overdoses have been the leading cause of death among the homeless in San Francisco. In 2019, the last year of available data, an estimated 40,958 city residents out of a total population of approximately 865,000 suffered opioid addiction. That same year, approximately 1,939 people in San Francisco overdosed on opioids, an average of 5.3 opioid overdoses per day.

    And the evidence showed that prescription opioids have been at the heart of San Francisco’s ongoing opioid epidemic, which has unfolded in three different waves. The first wave started in the late 1990s and early 2000s when opioid manufacturers began to aggressively promote opioids as safe and effective for treating a broad range of medical conditions.

    The second wave began in the early 2010s, when medical professionals began to reduce opioid prescribing based on the recognition that opioids are not a safe and effective form of treatment for many medical conditions. In the second wave, many people who were addicted to prescription opioids but no longer readily able to obtain them from doctors shifted to heroin use.

    The third wave started around 2015, when inexpensive and highly potent fentanyl became widely available across a city already struggling with opioid addiction.

    The opinion noted that "Walgreens is the largest retail pharmacy chain in San Francisco. Between 2006 and 2020, Walgreens distributed and dispensed over one hundred million prescription opioid pills in the city." The Controlled Substances Act ("CSA") regulations require distributors to implement and maintain a system for identifying suspicious orders of opioids. Suspicious orders of opioids must be halted and reported to the DEA.

    Fulfilling this duty requires Walgreens pharmacies to resolve "red flags" associated with a prescription before dispensing it. Red flags are well-established warning signs that raise questions about the legitimacy of a prescription.

    The evidence at trial established that Walgreens violated this regulatory duty for several years. It did not maintain an effective system for identifying suspicious orders. It shipped thousands of suspicious orders to its pharmacies without investigation.

    Judge Breyer wrote "Tens of thousands of these prescriptions were written by doctors with suspect prescribing patterns. The evidence showed that Walgreens did not provide its pharmacists with sufficient time, staffing, or resources to perform due diligence on these prescriptions. Pharmacists experienced constant pressure to fill prescriptions as quickly as possible, and a shortage of resources to review them before dispensing."

    In 2012, the DEA shut down one of Walgreens’ three controlled substance distribution centers because the distribution center’s failure to monitor for suspicious opioid orders posed an imminent threat of harm to public health and safety.

    The court concluded that "As a result of Walgreens’ fifteen-year failure to perform adequate due diligence, Plaintiff proved that it is more likely than not that Walgreens pharmacies dispensed large volumes of medically illegitimate opioid prescriptions that were diverted for illicit use and that substantially contributed to the opioid epidemic in San Francisco."

    A subsequent trial will determine the extent to which Walgreens must abate the public nuisance that it helped to create.

  • DWC Announces Return to In-Person Walk-Throughs
    on August 10, 2022 at 12:03 PM

    The Division of Workers’ Compensation (DWC) today announced that all DWC district offices except Eureka will accept in-person walk-through documents beginning September 6, 2022, pursuant to California Code of Regulations, title 8, section 10789.

    Eureka is permanently a virtual office and walk-through documents should be brought to the DWC Santa Rosa district office.

    In addition, effective September 6, 2022, DWC will no longer accept virtual walk-throughs in the Lifesize platform. Virtual walk-throughs were put in place due to the COVID-19 pandemic in 2021.

    Pursuant to section 10789 of the regulations, DWC will now accept all walk-through documents in-person. Walk-throughs are available Monday through Friday, except on holidays when the Division’s offices are closed. Parties are reminded to follow all provisions of section 10789 when presenting a District Office with a walk-through request.

    DWC will still accept by mail or e-filing any documents that are to be acted upon by a judge, including those that may otherwise be submitted by walk-through.

    The decision to return to in-person walk-throughs is in line with Governor Gavin Newsom’s SMARTER Plan for the next phase of pandemic response.

    DWC appreciates the community’s patience during this transition. If there are questions regarding this procedure, parties may contact the DWC call center at (909) 383-4522.

  • Injured Worker Fails to Prove an "Adverse Employment Action" After RTW
    on August 9, 2022 at 11:09 AM

    Katherine Eidson, is an electrician for Lawrence Berkeley National Laboratory since the summer of 2001. The facility is managed by the Regents of the University of California, and is on a 200-acre site in the Berkeley Hills. Eidson became a permanent Lab employee in November 2001 and was assigned to "MRO," the maintenance, repair, and operation group. She worked with the fire alarm electrician crew.

    In November 2006, Eidson suffered an industrial injury when she fell off a ladder at work while rewiring a switch. She was out on medical leave for just over a year - until December 2007 - to recover.

    Eidson was eager to return to work but disappointed that she could not return to her previous electrician job since that involved climbing ladders, which she understood she could not do at that time. She was still experiencing vertigo and dizziness, and she was concerned about whether she would improve. With the assistance of a return-to-work coordinator/accommodations specialist, Eidson returned to work on the fire alarm crew, but instead of working in the field she worked mostly in an office.

    The Lab continued to reassess what types of accommodations and work restrictions were appropriate for Eidson. Over time, she was gradually cleared to work in other settings and capacities. Eidson was involved in assessing her recovery and determining appropriate job duties.

    At some point, Eidson learned that she was being paid less than the other supervisors in maintenance, repair, and operations. She also learned that they were being invited to training sessions that she was not being invited to attend. She raised these concerns over the years starting in 2011 and several following years, including filing a formal grievance with the Lab in January 2014. The Lab’s human resources department conducted an analysis and concluded that there were no issues with Eidson’s classification or pay.

    The Lab ultimately offered Eidson a job in the commissioning department, which was a promotion that offered a higher pay range. Eidson accepted the job but did so "under protest" because she did not want to change positions.

    In April 2017 Eidson sued her employer alleging discrimination based on sex; retaliation; failure to prevent harassment, discrimination, or retaliation; and disability discrimination, all in violation of the California Fair Employment and Housing Act (FEHA).

    As of the time of trial in May 2019, Eidson was still employed by the Lab in the commissioning department. Since being transferred, Eidson had not applied for any other Lab position. She had received annual pay increases. She nonetheless continued to be unhappy in her position.

    The jury found against Eidson on her gender-based claims, but found in her favor on her disability-based claims. Jurors concluded that Eidson suffered an adverse employment action as the result of disability discrimination and retaliation. They also found that reasonable steps were not taken to prevent discrimination or retaliation. The jury awarded Eidson $650,000 in damages.

    The Regents filed a motion for judgment notwithstanding the verdict (JNOV) which was granted. The trial court concluded that, as a matter of law, Eidson failed to prove that she suffered an adverse employment action. Her appeal was affirmed in the unpublished case of Eidson v Regents - A158666 (August 2022)

    Although this is an unpublished case, thus adding no new controlling law in California, the Opinion nonetheless provides an excellent summary of what constitutes an "adverse employment action."

    In order to establish that the Regents wrongfully discriminated against her based on her disability, Eidson was required to prove that (1) the Regents was an employer, (2) Eidson was an employee of the Regents, (3) the Regents knew that Eidson had a disability that limited a major life activity, (4) Eidson was able to perform the essential job duties, (5) the Regents subjected Edison to an adverse employment action, (6) Eidson’s disability was a substantial motivating reason for the Regents’ conduct, (7) Eidson was harmed, and (8) the Regents’ conduct was a substantial factor in causing Eidson’s harm.

    "Eidson failed to prove the fifth element - that she suffered an adverse employment action." The Court quoted excerpts from the California Supreme Court decision in Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1049 to illustrate some of the considerations.

    The term "adverse employment action" "has become a familiar shorthand expression referring to the kind, nature, or degree of adverse action against an employee that will support a cause of action under a relevant provision of an employment discrimination statute." The determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.

    "A change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient."

    "[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action." If every minor change in working conditions or trivial action were a materially adverse action then any "action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit."

    A careful reading of the cases linked to this article could more thoroughly embellish what courts have considered to be "an adverse employment action."

  • Orange County Man Arrested for Impersonating a Physician - for Years
    on August 9, 2022 at 11:09 AM

    A Brea man was charged with multiple felonies for impersonating a medical doctor and performing medical procedures including Botox injections, lip and face fillers, and thread-lift procedures on numerous unsuspecting victims. The fake doctor is accused of targeting Spanish-speaking women to perform the unlicensed procedures.

    Elias Renteria Segoviano, 61, of Brea, has been charged with one felony count of the unauthorized practice of medicine, one felony count of false indication of a medical license, and one felony count of perjury.

    He has also been charged with one misdemeanor count of misrepresenting self as a licensed medical practitioner, one misdemeanor count of representation of license not issued to him or her, one misdemeanor count of misrepresentation of qualifications, and one misdemeanor count of impersonating a professional nurse or pretending to be licensed to practice nursing. He faces a maximum sentence of five years and four months in state prison if convicted on all counts.

    He is currently being held on $1 million bail. He has pleaded not guilty to all counts.

    Segoviano was arrested on July 19, 2022 at his business, Botox in Anaheim, within the Phenix Salon Suites, located at 935 S. Brookhurst St. in Anaheim, California.

    Segoviano used various social media platforms to advertise his services to potential clients, including videos and postings on Facebook, Tiktok, and other social media platforms. He used various aliases including "Dr. Elias", "Dr. Elias Renteria", "Dr. Elias Renteria M.D.- and used "ELIASMD" on his vehicle license plate.

    Segoviano is believed to have utilized other locations for his unlawful medical practice since 2019 including 339 La Habra Blvd, La Habra, CA.

    Various business names were used for his unlicensed practice including "Botox in Anaheim," "Botox in Anaheim- Health and Beauty," "Neurotoxina Botulinica- Massage Service," "Threads in Anaheim, -Threads La Habra", "Botox La Habra," and "OC Threads, Botox & Fillers."

    Segoviano is accused of performing invasive procedures and injecting victims with potentially counterfeit Botox, fillers, anesthetics, and other medical drugs that placed the public at extreme risk.

    Authorities believe there may be additional victims and are urging anyone who was treated by Elias Renteria Segoviano to report those procedures to the Orange County District Attorney’s Bureau of Investigation by contacting Investigator T. Hoang at 714-834-6538.

    "Medical professionals are highly trained and highly regulated for a reason," said Orange County District Attorney Todd Spitzer. "These women trusted this individual to have the training and the expertise required to perform these medical procedures, and instead they unknowingly put their very lives in the hands of someone who had no idea what they were doing."

    Deputy District Attorney Diran H. Tashjian of the Consumer and Environmental Protection Unit is prosecuting this cas

  • California and U.S. Supreme Courts Face Off over Employer Arbitration
    on August 8, 2022 at 11:56 AM

    A landmark employment law case will soon be decided by the California Supreme Court, which will require California's top court to go head-to-head with the United States Supreme Court, over the application of employer arbitration agreements that seek to limit employees from pursuing Private Attorney General Act (PAGA) claims against them, and proceed to arbitration instead.

    The soon-to-be landmark decision involves Erik Adolph, who was a driver for UberEATS, a meal delivery service. The company through which drivers are connected with those in need of UberEATS’ services is owned by Uber Technologies Inc..

    Before he began making deliveries for UberEATS in March 2019, Adolph created an account to use the UberEATS app. In creating his account, Adolph accepted an arbitration agreement, which "is governed by the Federal Arbitration Act."

    In October 2019, Adolph filed a putative class action complaint against Uber, claiming that Uber had misclassified employees as independent contractors, and had therefore failed to reimburse the class members for necessary work expenses. The complaint was amended to include only a California Private Attorney General Act (PAGA) cause of action. Uber filed a petition to compel arbitration of Adolph’s individual claims, strike the class action allegations, and stay all court proceedings.

    But the trial court denied Uber’s petition to compel arbitration citing California Supreme Court’s decision in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 384 and the cases following it, .

    In Iskanian the California Supreme Court held "that an employee’s right to bring a PAGA action is unwaivable," and that "here . . . an employment agreement compels the waiver of representative claims under the PAGA, it is contrary to public policy and unenforceable as a matter of state law."

    Uber appealed the ruling of the trial court. On April 11, 2022 the Court of Appeal affirmed the trial court in the case of Adolph v Uber Technologies Inc. - G059860 (consol. w/ G060198). The case was unremarkable at the time, hence it was "unpublished."

    The Court of Appeal acknowledged that about 11 days prior to its April 11 opinion the "United States Supreme Court heard arguments on March 30, 2022, in the case of Viking River Cruises, Inc. v. Angie Moriana, case no. 20-1573 (Viking)." And that the issue before SCOTUS was "Whether the Federal Arbitration Act requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under PAGA."

    Nonetheless, rather than waiting for a decision by the SCOTUS, the Court of Appeal went ahead and fell in line with other California decisions and concluded that "Unless and until the United States Supreme Court or the California Supreme Court directly overrules it, the courts of this state must follow the rule of Iskanian (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), which establishes that the trial court did not err by concluding that the initial issue of whether Adolph can pursue a PAGA claim as an aggrieved employee must be decided by the trial court, not an arbitrator."

    About two months later, SCOTUS published its decision in Viking on June 15, 2022, agreeing with the employer, and limiting the application of Iskanian in California. It said "When an employee’s own dispute is pared away from a PAGA action, the employee is no different from a member of the general public, and PAGA does not allow such persons to maintain suit." As a result, Moriana would lack statutory standing to maintain her non-individual claims in court, and the correct course was to dismiss her remaining claims.

    The U.S. Supreme Court decision in Viking has now - at least temporarily - disrupted the PAGA process against employer's who have arbitration agreements in California Hence, on July 22, 2022 the California Supreme Court granted Uber's Petition for Review in the Adolph case. The Uber case which was unremarkable is now remarkable, since the timing make it the case chosen to decide how Viking will work in California.

    The case will now be the arena where California employers will wage their battle to limit the application of the Private Attorney General Act against them, in favor of arbitration of each employees individual claim. The outcome of the battle is uncertain, but will no doubt be closely followed, as it will have a major impact on California employment law - one way or the other.

  • NCCI Publishes New Countrywide Court Case Update
    on August 8, 2022 at 11:56 AM

    NCCI’s Countrywide Court Case Update provides a look at some of the cases and decisions monitored by NCCI’s Legal Team that may impact workers compensation (WC) across the states. This July 2022 edition contains updated information on cases previously introduced and presents new cases and decisions.

    Stakeholders remain interested in COVID-19-related cases that could impact the WC system.

    In California and Wisconsin courts have considered issues related to employer liability for injuries suffered by the spouse of an employee who allegedly contracted COVID-19 at work and spread it to the spouse at home.
    In Texas, a federal court held that WC exclusive remedy bars a tort lawsuit brought against an employer by the family and estate of an employee who contracted and died from COVID-19.

    And in Ohio, in Yeager v. Arconic Inc., an appellate court found that an employee’s contraction of COVID-19 was not an occupational disease in WC because the employee failed to show that the employment created a risk of contracting COVID-19 in a greater degree and different manner than the general public.

    And the legal status of marijuana and its implications for Workers Compensation claims administrators remains a hot topic.

    In 2022 Rhode Island legalized recreational marijuana (S 2430/H 7593), Maryland passed legislation (HB 1) allowing voters to decide on a constitutional amendment that would allow recreational use, and the Mississippi legislature enacted a bill (SB 2095) that legalizes medical marijuana.

    So far, 20 jurisdictions have legalized recreational marijuana and 38 allow for medical use.

    In the meantime, marijuana reimbursement in WC remains a state-by-state patchwork. On June 21, 2022, the United States Supreme Court denied the petition to review the case of Musta v. Mendota Heights Dental Center, where the court was asked to resolve the question of whether the federal Controlled Substances Act (CSA) preempts a state order requiring employers and insurers to reimburse claimants for their medical marijuana use.

    The case was on appeal from the Supreme Court of Minnesota which, on October 13, 2021, ruled that the prohibition of marijuana possession under the CSA preempts an order made under Minnesota WC law that requires an employer to reimburse an injured employee for the cost of medical marijuana used to treat a work-related injury.

    Courts have also reviewed employment-related marijuana questions. On January 14, 2022, the Supreme Court of New Hampshire, in Paine v. Ride-Away, Inc., ruled that the lawful use of therapeutic cannabis can be a reasonable accommodation for an employee with a disability under New Hampshire law.

    For more information on cases monitored by NCCI’s Legal Team, visit previous Court Case Updates, COVID-19 Court Cases, and Court Case Insights on

  • City Sues Feds to Keep 150 Year Old 700 Patient Rehab Hospital Open
    on August 5, 2022 at 2:08 PM

    Laguna Honda and Rehabilitation Center is a skilled nursing and rehabilitation center owned and operated by the San Francisco Department of Public Health. It is located on a 62-acre campus in the heart of the city,

    Laguna Honda is one of the largest skilled nursing facilities in the United States, and represents the one of the most extensive commitments by any city or county to therapeutic care for seniors and adults with disabilities. It was founded in 1866 to care for one of the first generations of San Franciscans, the Gold Rush pioneers. A century and a half later, it remains a civic icon representing San Francisco’s tradition of service to the underserved.

    In July 2021, Laguna Honda self-reported two non-fatal overdoses to the California Department of Public Health (CDPH), per standard Laguna Honda policy and federal regulations. That report triggered a series of inspections by CDPH and CMS. Laguna Honda was cited for deficiencies in care related to cigarette lighters and drug paraphernalia found on campus, infection prevention and control, as well as two missed doses of a medication.

    Despite Laguna Honda’s work to correct the cited deficiencies, CMS terminated Laguna Honda’s Medicare and Medicaid provider agreements as a result of the deficiencies. The City has appealed that decision, and Laguna Honda intends to apply for re-certification in both Medicare and Medicaid with CMS. However, to continue federal funding, Laguna Honda was forced to prepare a closure and transfer plan.

    SFDPH proposed a number of options based on its assessment of the Laguna Honda patient population and the known lack of skilled nursing beds that would have lessened the impact on existing patients, including a re-certification process that would not require relocating existing patients; an 18-month transfer plan that would give appropriate time to find alternative care and living arrangements for all patients; and a phased transfer process wherein the most vulnerable patients would be transferred last.

    On May 13, 2022, CMS rejected all of those options and insisted on an unreasonable deadline of September 13, 2022, giving Laguna Honda just four months before federal funding would be cut off, the facility would be forced to close, and close to 700 patients would have to be transferred or discharged. There is an acute shortage of skilled nursing beds throughout California and the Bay Area, and it is simply impossible to find skilled nursing beds for all of Laguna Honda’s patients within the timeframe mandated by CMS.

    Additionally, the City filed three administrative appeals contesting the CMS decision to terminate its contract with Laguna Honda. Those administrative appeals will not be decided until well after the September 13 deadline to close the facility, effectively denying the City, Laguna Honda, and patients the due process they are owed.

    Thus far, nine patients who have been transferred or discharged from Laguna Honda have died days or weeks after transfer or discharge, underscoring the incredibly high stakes of moving such a fragile population of people in a rushed manner. The federal government, through CDPH, have temporarily paused patient transfers, but the September 13 deadline remains, giving the City less time to complete this daunting and ill-advised process.

    However San Francisco City Attorney David Chiu and former City Attorney Louise Renne announced that they filed a pair of lawsuits over the federal government’s decision to cut off federal funding to Laguna Honda Hospital & Rehabilitation Center and mandate that the facility transfer or discharge all patients by September 13, 2022.

    The City’s lawsuit against the U.S. Department of Health and Human Services (HHS) and Health and Human Services Secretary Xavier Becerra alleges that the Centers for Medicare & Medicaid Services (CMS), which operates under HHS, forced the City to implement an unworkable closure and transfer plan that denies the City due process and puts Laguna Honda patients at risk.

    The complaint lays out how CMS imposed an arbitrary September 13 deadline to transfer Laguna Honda’s patients and has denied the City due process as the facility is required to close well before the City’s administrative appeals can be decided - appeals that would render the transfers unnecessary.

    The lawsuit seeks declaratory and injunctive relief to eliminate the September 13 deadline and extend federal funding to Laguna Honda at least until the appeals can be decided and all patients can be safely transferred or discharged.

    Similarly, Louise Renne, founding partner at the Renne Public Law Group (RPLG) and former San Francisco City Attorney, announced that she has filed a class action lawsuit against the state and federal government on behalf of Laguna Honda patients and families.

    The RPLG complaint alleges that the closure of Laguna Honda and rushed transfer process violate the Americans with Disabilities Act and deny patients and their families substantive and procedural due process. The RPLG lawsuit is seeking declaratory and injunctive relief to continue federal funding to Laguna Honda and to stop patient transfers and discharges.

  • Applicant Arrested Following Surveillance and Social Media Posts
    on August 5, 2022 at 2:07 PM

    Richard James McGee, 47, of San Bernardino, was arraigned on two felony counts of workers’ compensation insurance fraud after a Department of Insurance investigation found he allegedly misrepresented injuries to his employer in order to receive over $30,000 in undeserved disability payments.

    In August 2019, while employed as a motorcycle mechanic, McGee allegedly suffered an unwitnessed work-related injury to his arm and right shoulder when a gas tank fell and pinned his arm against a motorcycle. McGee began receiving Temporary Total Disability payments when his work restrictions could not be accommodated.

    The investigation began after McGee’s coworkers saw photos on multiple social media platforms in which he was actively racing his motorcycle and riding his downhill mountain bike - activities requiring the use of both his arms and shoulders.

    It also was discovered that McGee was operating his own motorcycle mechanic shop out of his garage, Inland Empire Motorsports.

    In August 2020 during a Qualified Medical Exam, McGee told the physician because of his injury he could no longer work as a motorcycle mechanic and he could no longer ride his mountain bike and had not done so since his injury in August 2019.

    However, surveillance video showed McGee riding his mountain bike at a mountain bike park in Running Springs, California, in which he took his mountain bike off large jumps and crashed his mountain bike.

    When Department detectives presented the social media posts and surveillance video to the physician who did McGee’s exam, the physician opined McGee had not accurately represented his injury and physical abilities, and that McGee had lied during his original exam.

    As a result of misrepresenting his injury and physical capabilities, McGee received $30,629 in workers’ compensation benefits he was not entitled to receive.

    Department detectives arrested McGee and he was booked into the West Valley Detention Center. The San Bernardino County District Attorney’s Office is prosecuting the case.

  • WCAB Has No Duty to "Rescue" Applicant From Take Nothing
    on August 4, 2022 at 11:21 AM

    Robert Backus, a 40-year-old salesman for Schireson Bros, Inc., dba Volutone, filed two Applications, alleging that on 12/13/17 and during the period commencing 1/13/17 through 1/13/18, he sustained injury arising out of and occurring in the course of employment to his low back and lower extremities. The claims were denied by the employer.

    Backus testified at the trial and the matter was continued for further testimony. At the next hearing, he testified and Rossana Harris was called as witness by defendant. The trial was continued and at the third hearing no additional exhibits were offered and there was no testimony; the matter was submitted for decision

    The WCJ found that Robert Backus did not sustain injury arising out of and occurring in the course of employment to his low back and lower extremities; and Ordered that he take nothing by way of his injury claim.

    The WCAB denied his Petition for Reconsideration in the panel decision of Robert Backus v Schireson Bros, Inc. - ADJ11847265-ADJ11741978 (June 2022).

    Backus contended on Reconsideration that the reports from QME Allen Fonseca, M.D., were not properly considered regarding the issue of injury AOE/COE, that the reports from Dr. Fonseca are substantial evidence, that the decision was based on a "partial and unsubstantial record," that his "unimpeached and uncontradicted" testimony must be accepted as substantial evidence, and that the record should be further developed.

    Both the Panel and the WCJ noted that regarding applicant’s "unimpeached and uncontradicted" testimony, the WCJ stated in the Report, Backus, ''had highly questionable credibility due to the fact that he failed to disclose his prior back injury to either examining physician" ... "and initially denied such injury under oath until confronted with the records of same." The WCJ also noted that applicant’s testimony, "was in fact rebutted by Defense witness Rossana Harris."

    The Panel cited numerous authorities for the proposition that "It is well established that a WCJ’s opinions regarding witness credibility are entitled to great weight."

    The Panel went on to say that "most of applicant’s arguments are premised on his contention that the WCJ erred by not considering the reports from QME Dr. Fonseca." However after having "reviewed the entire trial record, it is clear that the WCJ is correct; the trial record contains no reports from Dr. Fonseca."

    As to the issue of whether the record should be further developed, the panel said "applicant is correct that the Appeals Board has the discretionary authority to develop the record when the record does not contain substantial evidence pertaining to a threshold issue."

    Citing numerous case authorities, and referring to footnote 2 of the WCJ Report, the panel went on to say "if a party fails to meet its burden of proof by failing to introduce competent evidence, it is not the job of the Appeals Board to rescue that party by ordering the record to be developed."

  • OSHA Repeatedly Cites 1,600 Store Retailer for "Flagrant" Violations
    on August 4, 2022 at 11:21 AM

    The U.S. Department of Labor has once again cited Dollar Tree Inc., one of the nation’s largest discount retailers, for workplace safety violations after it imposed $1.2 million in penalties following an inspection at two of its stores.

    In it's press release, OSHA claims that "one of the nation’s largest discount retailers continues to expose employees to the risk of injuries by flagrantly ignoring workplace safety regulations, this time with hazardous conditions found at two Ohio locations, in Maple Heights and Columbus."

    Since 2017, the U.S. Department of Labor’s Occupational Safety and Health Administration and state OSHA programs have conducted more than 500 inspections at Family Dollar and Dollar Tree - operated by their parent company, Dollar Tree Inc. - and found more than 300 violations. During these inspections,

    OSHA says it routinely finds "exit routes, fire extinguishers and electrical panels dangerously obstructed or blocked; unsafe walking-working surfaces; and unstable stacks of merchandise."

    Following the Ohio inspections, OSHA proposed penalties of $1,233,364 for multiple violations.

    "Family Dollar and Dollar Tree stores have a long and disturbing history of putting profits above employee safety," said Assistant Secretary for Occupational Safety and Health Doug Parker. "Time and time again, we find the same violations - blocked or obstructed emergency exits and aisles, boxes of merchandise stacked high or in front of electrical panels and fire extinguishers. Each hazard can lead to a tragedy."

    On Jan. 31, 2022, OSHA initiated an inspection following an employee report of unsafe conditions at the Family Dollar store on Dunham Road in Maple Heights. The agency issued citations for one repeat violation and four willful violations, with proposed penalties of $685,777.

    Two weeks later, OSHA opened an inspection on Feb. 10, 2022 in response to an employee complaint of water leaking through the ceiling causing wet floors and ceiling tiles on the floor at the Lockbourne Road store in Columbus. As a result, the agency proposed $547,587 in penalties for one serious and one repeat violation, and four willful violations.

    In both inspections, OSHA found hazards related to, obstructed egress, unstable stacks, inaccessible electrical equipment and fire extinguishers, as well as trip and fall hazards caused by water, carts, boxes, trash and merchandise spread throughout walking-working surfaces in the retail areas and storerooms.

    A Fortune 500 company, Dollar Tree has been a leading operator of discount variety stores in North America for more than 30 years.

    Headquartered in Chesapeake, Virginia, the company operates more than 16,000 stores across the 48 contiguous states and five Canadian provinces, supported by a nationwide logistics network and more than 193,000 employees.

    The company has 15 business days from receipt of its citations and penalties to comply, request an informal conference with each of OSHA’s area directors, or contest the findings before the independent Occupational Safety and Health Review Commission.

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