Author: WorkCompAcademy

3 Stonedeggs, Inc. – (DBA California Sandwich Company) business was to provide food service to firefighters and forestry workers at various locations. The employer won a contract to provide food service at a remote location near Happy Camp, California, and it was expected that the job would last 3 to 6 months.

The employer asked employees assigned to its Brownsville camp to volunteer to work at Happy Camp, a remote location without cellular telephone services where it was to serve meals for the three-to-six month period.

Braden Nanez and two other employees from the Brownsville camp agreed to travel to work providing food service at Happy Camp, and the employer authorized Nanez to drive his own car from Brownsville to his residence and then to Happy Camp.

On October 5, 2020, the day of the vehicular accident at State Highway 263/Shasta River Bridge, Nanez worked the breakfast shift and, afterwards, at about 9:00 a.m., commenced a seventy-mile drive to Yreka in his own car. He texted manager Brossard later that he would return for his next shift at about 4:00 p.m., a timeframe permitting daytime travel in his off hours.

The employer was not informed of his reasons for traveling to Yreka, but manager Todd surmised that it was to use his cellular telephone.

On April 26, 2022, the matter proceeded to trial as to the following issues: “Injury arising out of and in the course of employment per Labor Code section 3600(a), (the going and coming rule); and intoxication.”

The WCJ found that applicant (1) did not sustain injury arising out of and in the course of employment (AOE/COE); (2) violated company policy when he left the worksite without permission on the date of his injury; and (3) was engaged in a material deviation and complete departure from his employment at the time of injury. The WCJ ordered that Nanez take nothing on his workers’ compensation claim.

On reconsideration, Nanez contended that the evidence established that he was engaged in an activity reasonably expected to be incident to his employment at the time of his injury, and, therefore, that the commercial traveler rule applies to his accident.

The WCAB agreed, and rescinded the F&O, and substituted findings that the commercial traveler rule applies to his accident, that his claim is not barred by the going and coming rule and intoxication, and that he sustained injury AOE/COE in the form of a fracture to the right femur, and deferred his claim of injury to other body parts in the panel decision of Nanez v 3 Stonedeggs, Inc. -ADJ14015513 (February 2023)

The employer filed a timely Petition for Writ of Review, and the Court of Appeal reviewed the case, and affirmed the WCAB in the unpublished case of 3 Stonedeggs v. Workers’ Compensation Appeals Board et al -C098711 (April 2024).

On appeal, the employer contends in part that any activity that involved leaving the camp without approval and for comfort and safety when the employer provided all items the employees would need was not a personal activity reasonably contemplated by the employer under the circumstances of this case.

The Court of Appeal reviewed the great body of decisions, including WCAB panel decision on the application of the commercial traveler rule and concluded as follows:

“Synthesizing these decisions and looking at the nature of Nanez’s activity and his employment, we conclude substantial evidence supports the Board’s decision. We disagree with the employer’s argument that any departure from the camp without authorization was outside the course of employment. Substantial evidence establishes that the employer could reasonably expect that Nanez, incident to the employer’s requirement that he spend time away from home, would leave camp in his personal automobile and drive ‘to town’ during his off hours. The employer made clear to employees its ‘expectation’ that employees not leave camp. It told employees it did not want them leaving camp ‘if they don’t have to’ due to safety reasons, and it ‘really encouraged’ the employees not to drive on the roads. But in none of these explanations did the employer actually prohibit the employees from leaving camp.”

“Substantial evidence thus supports the Board’s determination that Nanez’s departure from camp was a leisure activity that the employer may reasonably have expected to be incident to its requirement that Nanez spend time away from home.”

According to the California Hospital association Anthem Blue Cross, one of California’s largest health insurance companies, consistently leaves thousands of its patients stranded in hospital beds long after they have been medically cleared for discharge, a violation of California law. These victims of discharge delays are forced to stay in hospitals longer, are deprived of timely post-hospital health care services, and cause backlogs for other patients who have to wait longer for hospital beds.

These failures, along with Anthem’s disregard of state requirements to maintain an adequate network of care providers and not paying for the additional hospital care it forces to be provided to patients, are the basis of a new lawsuit filed in Los Angeles County Superior Court against the insurance giant by the California Hospital Association (CHA) on behalf of the state’s more than 400 hospitals and health systems and the patients they serve.

“California has some of the strongest laws in the nation governing insurance company practices,” said CHA President & CEO Carmela Coyle. “Regrettably, far too many insurance companies that put their bottom lines over patient care are violating these essential patient protection laws every day, hurting patients, hospitals, and the public good. By filing this lawsuit, we are asking the court to put a stop to these illegal practices and force insurers to do what is best for patients.”

According to a statewide survey of hospitals conducted last year by CHA, an estimated 4,500 Californians are stuck every day in hospital beds and emergency departments waiting for their insurers to approve and arrange for their discharge to care settings such as skilled-nursing facilities, home health services, rehabilitation facilities, or behavioral health services. According to the survey, patients whose discharge is delayed by at least three days (~300,000 patients annually) spend, on average, an additional 14 days in the hospital after being medically cleared for post-acute care.

Other findings from the survey include:

– – California hospitals provide an estimated 1 million days of unnecessary inpatient care and 7.5 million hours of wasted emergency department care annually due to discharge delays.
– – In some extreme cases, patients – especially those experiencing behavioral health issues – have languished in hospital beds for as long as a year.
– – These delays result in at least $3.25 billion in avoidable hospital costs every year.
– – Patients enrolled in managed care plans – especially those covered by Medi-Cal – are more likely to experience delays than those who have fee-for-service coverage.

The lawsuit alleges that Anthem fails to meet its legal obligations to arrange for timely access to care for its members as required under California law. Anthem is also accused of not responding in a timely manner – or at all – “to requests for authorization” for post-acute care for its members.

Additionally, the complaint charges Anthem with “unilaterally discontinuing authorization” for hospitals to continue caring for patients while they need to remain in hospital beds longer as a result of the insurance company’s failure to arrange for timely post-acute discharge.

In the lawsuit, CHA is seeking an injunction against Anthem that would bar the insurer from engaging in these illegal and harmful business practices.

“It is time for the courts to hold insurers accountable by enforcing the law. Care that is delayed is care that is denied,” Coyle said.  Coyle also said the association has raised the issue with the Department of Managed Health Care, which oversees most health insurers.

In a statement, department spokesperson Kevin Durwara said the agency has been meeting with the hospital association to address hospitals’ “concerns and challenges” with insurance delays since 2021. The meetings resulted in a letter issued to insurers in Fresno County, where hospital capacity was particularly limited, instructing them to make it easier for hospitals to discharge patients.

According to CalMatters a spokesperson for Anthem said the company did not have an immediate response and would be investigating the allegations.

When the nation first observed Workers Memorial Day on April 28, 1970, an estimated 38 U.S. workers suffered fatal on-the-job injuries each day and many more endured debilitating respiratory diseases and other life-altering illnesses related to workplace exposures.

Today, work-related injuries in the U.S. claim about 15 people’s lives a day. In 2022, a reported 5,486 workers suffered fatal injuries, an increase of 296 worker deaths from 2021.

This year, the Department of Labor’s Occupational Safety and Health Administration and Mine Safety and Health Administration will remind the nation of the importance of protecting workers as families, friends, co-workers and the community at-large gather across the country for Workers Memorial Day events on Sunday, April 28 to honor people who didn’t come home at the end of their shift.

“As we honor our fallen workers on Workers Memorial Day, we must remember that behind each workplace fatality there are loved ones enduring unimaginable grief,” said Assistant Secretary for Occupational Safety and Health Doug Parker. “It is for the lost workers and those left behind that we continue to fight for every worker’s right to a safe working environment. Our mission at OSHA is to ensure that when someone leaves for work, they know they’ll come home safe at the end of the day to the arms of their families and loved ones.”

To commemorate Workers Memorial Day, the department will host a week-long series of events from April 22-25 to educate employers on the importance of safe and healthy workplaces. The series will culminate at an in-person and nationally livestreamed event at 1 p.m. EDT at its Washington headquarters where OSHA and MSHA leaders will join AFL-CIO President Liz Shuler and United Support & Memorial for Workplace Fatalities Board Member Stacy Sebald, whose 19-year-old son Mitchell McDaniel suffered fatally injuries in an agriculture incident in 2019.

“We come together on Workers Memorial Day to remember those we have lost in workplace accidents and to prevent work-related illnesses,” said Assistant Secretary for Mine Safety and Health Chris Williamson. “At MSHA, we know a safe workplace isn’t a privilege – it’s every miner’s right. It is in the memory of fallen workers that we continue to advocate for each miner’s safety, health and dignity.”

Join OSHA and MSHA representatives, families, workers, labor unions, advocates and others to remember the lives lost and raise awareness of workplace safety to help prevent future tragedies. Find a local Workers Memorial Day event.

Learn more about Workers Memorial Day events nationwide and view the April 25 livestream.

Cal/OSHA has cited D’Arcy & Harty Construction, Inc. $371,100 for failing to protect employees working in a trench excavation at a construction site in San Francisco. On September 28, 2023, an employee was replacing sewer parts inside the eight-foot-deep trench at 1101 Oak Street when the excavation collapsed, fatally burying the 24-year-old worker.

The 25-year-old man who died was identified as Javier Romero from Alameda County. Romero became trapped under 8 feet of dirt when the trench collapsed in the area of Oak and Divisadero streets.

He was working on part of the San Francisco Public Utilities Commission’s Panhandle and Inner Sunset Large Sewer Rehabilitation Project to upgrade existing sewer mains and sewer laterals in the area, SFPUC officials said at the time.

Cal/OSHA investigators determined D’Arcy & Harty Construction, Inc. committed willful-serious safety violations by failing to provide a protective system for employees working in the trench and for failing to provide a means of escape such as a ladder in case of collapse – hazards the employer had been warned about weeks before.

In that earlier inspection, a Cal/OSHA investigator had told D’Arcy & Harty Construction Inc. that a trench excavation at 3475 22nd Street did not have adequate shoring and did not have a ladder or other means for workers to escape in case of collapse. The hazards at that San Francisco site were abated before work was able to continue.

Cal/OSHA cited D’Arcy & Harty Construction, Inc., for eight violations total in the fatal September 28 incident, including three categorized as serious accident-related for failure to conduct daily safety inspections of the trench for evidence of possible cave-ins before an employee is allowed to work inside the trench, and failure to properly use equipment and materials to prevent employee exposure to excavation and trenching hazards.

Cal/OSHA offers extensive information and resources on working safely in the construction industry, including how to safely perform trench and excavation operations. Before starting excavation work, the approximate locations of all underground installations that may be encountered during excavation operations must be determined and the proper notification must be made to the appropriate agency in either Northern or Southern California. A permit from the local Cal/OSHA district office must be obtained before the construction of excavations five feet or deeper into which any person is required to descend.

Acting Cal/OSHA Chief Debra Lee said: “Excavations are known hazards and trenches must be evaluated, shored or shielded before workers enter to protect them. This worker’s death is tragic because it was avoidable.”