Author: WorkCompAcademy

The Division of Workers’ Compensation (DWC) has issued a Notice of Public Hearing for proposed evidence-based update and adoption to the Medical Treatment Utilization Schedule (MTUS), which can be found at California Code of Regulations, title 8, update to section 9792.24.2 and adoption of section 9792.24.8.

The proposed evidence-based updates and adoption to the MTUS incorporate by reference the latest published guidelines from the American College of Occupational and Environmental Medicine (ACOEM) for the following:

– – Proposed Amendment to Section 9792.24.2. Chronic Pain Guidelines. (ACOEM December 19, 2024)
– – Proposed Adoption of Section 9792.24.8 Cannabis Guideline (ACOEM January 28, 2025)

The proposed evidence-based update and adoption to the MTUS regulations are exempt from Labor Code sections 5307.3 and 5307.4 and the rulemaking provisions of the Administrative Procedure Act. DWC is required under Labor Code section 5307.27 to have a 30-day public comment period, hold a public hearing, and respond to all the comments received during the public comment period prior to publishing the order adopting the update online.

Members of the public may review and comment on the proposed updates. Written comments must be submitted no later than March 14, 2025.

Members of the public may attend the virtual and conference call public hearing

– – Time: March 14, 2025 10 a.m. Pacific Time (US and Canada)
– – Join from PC, Mac, Linux, iOS or Android: https://dir-ca-gov.zoom.us/j/86193231447

Of interest is the Summary of Recommendations seen on page 1 of the proposed Cannabis Guideline (ACOEM January 28, 2025). The Guideline reported that adverse effects of the use of Cannabis are “common.” It continued for the next several pages to list perhaps more than 100 of them. It goes on to elaborate on each topic.

Unsurprisingly, the weight of this evidence supported this overall recommendation:

– – Cannabinoids for Chronic Pain – Not Recommended – Evidence C
– – Cannabinoids for Acute Pain – Not Recommended – Evidence C
– – Cannabinoids for Chronic Pain – Moderately Not Recommended – Evidence B
– – Cannabinoids for Safety-Critical Workers – Not Recommended – Evidence C

The Division of Occupational Safety and Health, known as Cal/OSHA, has cited employers Smelly Mel’s Plumbing and Sewer Rat Plumbing a total of $529,640 in proposed penalties for violating safety regulations that resulted in serious injuries to a construction worker during a trench collapse in San Mateo on August 1, 2024.

Cal/OSHA, a division of the Department of Industrial Relations, found a total of 16 violations, evenly split between both businesses. Among these citations were two willful, serious accident-related violations – meaning the businesses were aware of the safety hazards, had prior warning, and still failed to take corrective action.

On August 1st, 2024, a crew was handling a sewer line project at a private residence in San Mateo. The job took a near-deadly turn when the walls of the trench collapsed, burying a worker under the debris and causing serious injuries that required hospitalization.

The citations issued include violations for improper protective systems, inadequate training, and failure to inspect the trench and surrounding conditions including:

– – Inspection Failure: Employers did not ensure that a competent person conducted daily inspections of the trench, adjacent areas, and protective systems that could have detected hazardous conditions such as cave-ins.
– – Lack of safe exit routes: Both employers failed to provide the construction workers a ladder or other safe means of exiting the trench that was approximately 9 feet and 3 inches in depth.
– – No adequate protective systems in trench: Neither employer provided adequate protective systems, such as shoring, shielding, sloping, or benching to the trench to prevent its collapse.
– – Failure to protect workers from falling debris: Neither employer protected their workers from excavated materials or equipment that could pose a hazard by falling or rolling into the trench.
– – Foot Protection: The employer failed to ensure that their workers had proper foot protection, which exposed at least one worker to foot injuries when using a jackhammer.
– – Insufficient emergency medical provisions: The employers did not have an appropriate number of trained persons to render first aid at the jobsite.
– – Permit Requirements: The employers failed to notify the division prior to the start of the annual permit-required activity of constructing an excavation over 5-feet in depth.
– – Injury and Illness Prevention Program: The employers failed to conduct a toolbox safety meeting at the jobsite with the crew for the duration of the project.

Employers have the right to appeal any Cal/OSHA citation and notification of penalty by filing an appeal with the Occupational Safety and Health Appeals Board within 15 working days from the receipt of notification.

Cal/OSHA Chief Debra Lee said “Trench collapses remain one of the most serious hazards in construction, and employers must take all necessary steps to protect their employees. These citations serve as a reminder that businesses must prioritize worker safety, especially during high-risk operations to avoid tragic accidents.”

Rafael Castro, a veteran of the U.S. Navy and a former employee of the Veterans Health Administration and the Internal Revenue Service, and his wife, Miriam Castro, pleaded guilty in federal court to defrauding the Department of Veterans Affairs (VA) out of more than $130,000.

According to their plea agreements, between September 2018 and April 2024, the Castros lied to obtain caregiver benefits from the Caregiver Support Program, a VA program that provides caregiver support for injured veterans. Rafael Castro admitted that he lied about needing high-level assistance for daily activities, including dressing and undressing himself, personal hygiene, and grooming.

According to plea documents, Rafael Castro defrauded the VA into awarding him assistance that paid the primary caregiver – his wife – an amount equivalent to a full-time home health aide’s 40-hour per-week payment.

According to plea documents, for years, Miriam Castro received monthly payments to be a full-time caregiver for Rafael Castro while her husband worked as a full-time federal employee. From July 2015 to June 2023, Rafael Castro worked for the Veterans Health Administration, and from June 2023 to April 2024, he worked for the Internal Revenue Service. Even though he was employed by the federal government, Rafael Castro falsely told VA representatives at least six times that he was unemployed.

For example, during a 2023 interview, Rafael Castro falsely claimed that he had last worked in 2018 and that his wife was his full-time caregiver. According to their plea agreements, while Rafael Castro was engaged in the fraud scheme, he received several promotions, all while he continued to claim he was unemployed. In their respective plea agreements, Rafael Castro and Miriam Castro admitted that they participated in the multi-year scheme to defraud the VA.

“This case is an excellent example of the importance of internal inspections within government programs,” said U.S. Attorney Tara McGrath. “Without the intervention from the Inspector General’s Office, this fraud might have continued indefinitely.”

“These guilty pleas demonstrate that those involved in defrauding VA, including government employees, will be held accountable,” said Special Agent in Charge Anthony Heddell with the Department of Veterans Affairs Office of Inspector General’s Western Field Office. “The VA OIG will continue to work with our law enforcement partners to ensure the integrity of VA’s benefits programs and services.”

“Violations of federal law, particularly those committed by IRS employees will not be tolerated and will be prosecuted to the fullest extent of the law,” Acting Special Agent in Charge Brandon Knarr stated. “TIGTA will continue to work closely with the United States Attorney’s Office and our law enforcement partners to identify, investigate and hold those individuals responsible for their illegal activities.”

Sentencing is scheduled for April 25, 2025, at 9 a.m. before U.S. District Judge James E. Simmons, Jr. This case is being prosecuted by Assistant U.S. Attorney Edward Chang.

Yukio Taira began working for Honeywell International, Inc. in November 2011. On May 14, 2015, Taira was on a flight to a trade show in Georgia when he suffered a “catastrophic stroke.” The flight was diverted and Taira was taken by ambulance to a hospital.

On June 29, 2015, Taira filed two applications for workers’ compensation benefits. One case listed a specific date of injury (May 14, 2015) – the date of his stroke. The other case listed an injury date of November 1, 2011, through May 14, 2015, the entire duration of Taira’s employment with Honeywell.

On September 11, 2018, Taira entered into a partial settlement agreement of $1,125,000 regarding both workers’ compensation cases. In October 2023, he settled the remaining issues in his cases for an additional $6 million, and the Workers’ Compensation Appeal Board approved that settlement.

On September 6, 2018, Taira filed a lawsuit alleging that Honeywell violated the Fair Employment and Housing Act (FEHA) by failing to provide him an accommodation for his disability (Gov. Code, § 12940, subd. (m))1 and failing to engage in the interactive process (§ 12940, subd. (n)). The third amended complaint, which is the operative pleading, alleges FEHA claims against Honeywell for failure to provide a reasonable accommodation (§ 12940, subd. (m)) and failure to engage in the interactive process (§ 12940, subd. (n)).

On June 16, 2022, Honeywell filed its motion for summary judgment which the trial court granted. Because the undisputed evidence establishes that Taira never requested a reasonable accommodation, the Court of Appeal affirmed the judgment in the unpublished case of Taira v. Honeywell International -B328410 (February 2025).

At issue in this appeal is only the question of whether Honeywell failed to reasonably accommodate Taira’s assumed disability.

“‘[I]t is important to distinguish between an employer’s knowledge of an employee’s disability versus an employer’s knowledge of any limitations experienced by the employee as a result of the disability.’” (Scotch, supra, 173 Cal.App.4th at p. 1013.) Thus, FEHA “requires an employer to accommodate only a ‘known physical . . . disability.’” (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1252.) “‘“Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the [FEHA].”’” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1167 (Featherstone).)

And, “the employee must request an accommodation.” (Gelfo, supra, 140 Cal.App.4th at p. 54.) “‘“Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer,”’” the employee bears the burden “‘“to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.”’” (Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721,738–739; see also Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1378; Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222 (Raine).)

In other words, “[a]n employee cannot demand clairvoyance of his employer. [Citation.] ‘“[T]he employee can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. . . .”’ ‘It is an employee’s responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee.’ [Citation.]” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 443 (King).)

There is no evidence that Taira informed Honeywell of specific work restrictions as a result of his disability or that he requested a reasonable accommodation. (See, e.g., Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 349 [affirming summary judgment to the employer because although it learned of the plaintiff’s symptoms, “those symptoms did not interfere with the performance of his job”]; King, supra, 152 Cal.App.4th at p. 444 [given the plaintiff’s apparent ability to get the job done, “it was incumbent upon him to produce clear and unambiguous doctor’s orders restricting the hours he could work”].) Thus, Taira’s claim under section 12940, subdivision (m), fails.

For the same reason, Taira’s claim under section 12940, subdivision (n), fails. It is undisputed that Taira did not identify a specific, available reasonable accommodation while working at Honeywell. Absent this evidence, Honeywell is entitled to judgment.

The fact that Taira may have reported his medical symptoms to both Ocello and a member of the human resources team does not change the conclusion. While he may have made such reports, he did not request a reasonable accommodation for those symptoms. There was nothing “open, obvious, and apparent” to Honeywell about what limitations were required for those symptoms.

And his complaint about understaffing does not constitute a reasonable request to accommodate a disability. (See, e.g., Nadaf-Rahrov, supra, 166 Cal.App.4th at pp. 975–976.)