Author: WorkCompAcademy

Since 2007, Congress and multiple administrations have taken actions to help ensure that federal science agencies have scientific integrity policies and procedures in place that, among other things, protect against the suppression or alteration of scientific findings for political purposes. The U.S. Government Accountability Office (GAO) defined scientific integrity as the use of scientific evidence and data to make policy decisions that are based on established scientific methods and processes, are not inappropriately influenced by political considerations, and are shared with the public when appropriate.

The U.S. Government Accountability Office (GAO) was asked to review scientific integrity policies and procedures, and how allegations of political interference in scientific decision-making are addressed at CDC, FDA, NIH, and ASPR. Thus it conducted a performance audit from October 2020 to April 2022 in accordance with generally accepted government auditing standards.

“Since the onset of the COVID-19 pandemic, there have been various allegations of political interference affecting scientific decisions at several HHS offices and agencies. For example, in May 2020, a senior official from ASPR claimed HHS retaliated against him for disclosing, among other things, concerns about inappropriate political interference to make chloroquine and hydroxychloroquine available to the public as treatments for COVID-19. Additionally, in July 2021, for example, several members of Congress criticized CDC for allegedly revising its face mask guidance for political purposes.”

The four agencies GAO reviewed “do not have procedures that define political interference in scientific decision-making or describe how it should be reported and addressed.” These agencies within the Department of Health and Human Services (HHS) are: the Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), the National Institutes of Health (NIH), and the Office of the Assistant Secretary for Preparedness and Response (ASPR).

According to the subsequent April 2022 GAO Report to Congress the “absence of specific procedures may explain why the four selected agencies did not identify any formally reported internal allegations of potential political interference in scientific decision-making from 2010 through 2021.

Through semi-structured interviews and a confidential hotline, “employees at CDC, FDA, and NIH told GAO they observed incidents that they perceived to be political interference but did not report them for various reasons. These reasons included fearing retaliation, being unsure how to report issues, and believing agency leaders were already aware.”

More alarmingly the Report says a “few respondents from CDC and FDA stated they felt that the potential political interference they observed resulted in the alteration or suppression of scientific findings. Some of these respondents believed that this potential political interference may have resulted in the politically motivated alteration of public health guidance or delayed publication of COVID-19-related scientific findings.“

The report recommended (among other things) that “HHS could strengthen its desired goal of sustaining a culture of scientific integrity by developing procedures for reporting and addressing political interference in scientific decision-making. Such procedures would ensure that employees know how to report allegations, and that HHS’s agencies have a clear, consistent process for investigating and addressing such allegations.”

“To help reduce employees’ fear of retaliation and encourage appropriate reporting, agencies could include information on whistleblower protections, and clarify any reporting requirements for employees who believe they observed potential political interference in scientific decision-making.”

The Labor Commissioner’s Office has cited Torrance Car Wash more than $800,000 for wage theft violations affecting 35 workers, including minimum wage, overtime and contract wage violations.

An investigation found that some workers worked beyond 80 hours per pay period, but received pay for approximately 80 hours no matter how many hours worked. Others who reported to work on time were made to wait before punching in and not paid for that time.

The Labor Commissioner’s Office opened an investigation into Torrance Carwash Inc. dba Torrance Car Wash after receiving a referral from the CLEAN Car Wash Campaign. Investigators attempted to conduct an inspection on March 4, 2021, but were refused entry to view records, despite having an inspection warrant signed by a Los Angeles Superior Court judge requiring access to the company’s payroll records and employee-related documents.

Onsite inspections were conducted the following week with additional warrants.

The audit of payroll records from April 9, 2018 to March 7, 2021 determined that the employer failed to pay workers for all of the hours worked, did not pay workers for waiting times, and did not provide workers with required meal and rest breaks.

The citations, penalties and interest issued total $815,311 of which $746,061 is payable to workers for unpaid minimum wages and overtime, liquidated damages, waiting time penalties, meal and rest period premiums, penalties for the employer’s failure to pay the workers with itemized wage statements, unpaid contract wages and accrued interest.

The citations issued to Torrance Carwash, Inc., manager Jesus Hernandez, and owners Susan Amini and Reza Albolahrar also include civil penalties of $69,250 for failing to pay minimum wages, overtime, meal and rest premiums, and failure to issue proper itemized wage statements. Civil penalties collected are transferred to the State’s general fund as required by law.

Enforcement investigations typically include a payroll audit of the previous three years to determine minimum wage, overtime, and other labor law violations, and to calculate payments owed and penalties due. When workers are paid less than minimum wage, they are entitled to liquidated damages that equal the amount of underpaid minimum wages plus interest.

The Department of Industrial Relations’ Division of Labor Standards Enforcement (California Labor Commissioner’s Office) combats wage theft and unfair competition by investigating allegations of illegal and unfair business practices.

A new report from the Workers Compensation Research Institute (WCRI) and the International Association of Accident Boards and Commissions (IAIABC) to identify the similarities and distinctions between workers’ compensation regulations and benefit levels in U.S. states and Canadian provinces now includes information related to the pandemic.

“This publication is a must-have reference for workers’ compensation professionals,” said Ramona Tanabe, executive vice president and counsel with WCRI. “I am frequently asked about different jurisdictional characteristics and this report often provides the answer. We continue to add to it as new rules are adopted more widely, such as presumptions for first responders.”

New in this edition, Workers’ Compensation Laws as of January 1, 2022, is information about regulations addressing “presumption of causation,” availability of hearings and legal proceedings virtually, and a retrospective review of the maximum weekly benefit amount for temporary total disability.

In Canada and the United States, workers’ compensation is entirely under the control of sub-national legislative bodies and administrative agencies and the differences can be subtle. The study helps readers understand the macro-level differences and general tendencies across jurisdictions, such as the following:

– – Which states and provinces allow individual or group self-insurance?
– – Which states cover mental stress claims, hearing loss, and cumulative trauma?
– – How many jurisdictions allow the worker to receive temporary total disability and permanent partial disability benefits at the same time?
– – How do the maximum and minimum payments for temporary and permanent total disability benefits vary and how have they changed over time?

The study builds on many years of valuable work by the U.S. Department of Labor (USDOL) that pioneered the use of a standard set of tables to promote uniformity in responses across states and consistency in reports from year to year.

Although the USDOL suspended its production of these tables for budgetary reasons, the WCRI and the IAIABC agreed to work together to continue publishing this important resource.

For more information about this study, visit WCRI’s website.

An injured worker filed a workers’ compensation claim in April 2015 . After the employer’s workers compensation carrier became insolvent , CIGA became responsible for paying the claim Sedgwick is a third party claims administrator for CIGA and handled the worker’s claim

When the examiner reviewed the file, it was noted that a chiropractor, Andrew John Miles, was treating the injured worker. But under Labor Code section 4600, a chiropractor may only serve as a primary treating physician under limited circumstances.

Accordingly, the examiner prepared a computerized diary entry that instructed a claims assistant to send a letter to the worker letting him know that Miles could not be his primary treating physician and he should select a different provider to fill that role. The diary entry specifically identified Miles as the subject of the letter.

The examiner also saw that one of the worker’s other medical providers, Dr. Rosen, was no longer an approved medical provider for CIGA claims because the DIR had included Rosen on a list of medical providers who had been indicted for fraud or abuse. So the examiner instructed the assistant to send several form letters to the worker, including one notifying the worker of the indictment issue and another instructing him to select a new provider.

The claim assistant received the two diary entries created by the examiner at the same time and assumed both entries related to chiropractor Miles by mistake, and the letters referred to Dr. Miles as the person indicted, not Dr. Rosen.

Chiropractor Miles received the letter, called the examiner and pointed out the mistake, and the examiner took several actions that day to correct them. Nonetheless, Chiropractor Miles sued CIGA and Sedgwick for defamation, intentional interference with prospective business relations, and negligent interference with prospective business relations.

CIGA and Sedgwick moved for summary judgment which the trial court granted and the Court of Appeal affirmed in the unpublished case of Miles v Sedgewick, – B311520 (April 2022)

CIGA and Sedgwick asserted three affirmative defenses – the litigation privilege under Civil Code §47(b), – the common interest privilege under §47(c), – and the limited liability provided to CIGA and its agents under Insurance Code sections 1063.12 and 1063.2. The case was resolved on the “common interest privilege” and the others were not discussed in the opinion.

Defendants argued that the communication was privileged because the drafter and recipients of the letter s shared a common interest in the worker’s claim and in the insurance eligibility of the medical providers and treatment the worker received As for malice, defendants explained the false statements were inadvertent and therefore not malicious. The Court of Appeal agreed.

“CIGA, and Sedgwick as its agent, were obligated to reimburse the worker for medical treatment covered under the workers’ compensation policy at issue. And the purpose of the indictment letter and follow up letter was to ensure that plaintiff continued to receive care from medical providers approved by CIGA so that the care would be covered under the insurance policy In sum, the communications from CIGA by Sedgwick as its agent, to the worker and worker’s counsel furthered the mutual interest of all parties regarding covered medical claims.”

California’s Division of Occupational Safety and Health Standards Board met on April 21, 2022, and formally approved the third readoption of its COVID-19 Emergency Temporary Standard by a 6-1 vote. There were no substantive changes from the earlier April 6, 2022 draft text.

The new rules will become effective when the Office of Administrative Law completes its review and files it with the secretary of state, which is anticipated to occur before the end of the first week of May 2022, and will remain in effect through December 31, 2022. According to the summary by Littler Lawfirm, the key takeaways are as follows:

Vaccination Status No Longer Matters. In a stunning reversal, employee vaccination status is no longer a functional part of the proposed ETS. The definition of “fully vaccinated” has been removed from the ETS and the ETS applies to employees without regard to vaccination status. Any employee is now entitled to request a respirator for voluntary use and an employer must offer COVID-19 testing to any employee exhibiting symptoms of COVID-19. At the same time, close contact provisions no longer depend on vaccination status under the new draft ETS text – but this leads to the next key takeaway.

No Set Rules for Close Contact Exclusion. In what is sure to be a controversial move, the proposed ETS has no set rules for close contact exclusion from the workplace. Instead, the proposed ETS now requires that employers “review current [California Department of Public Health] guidance” regarding “quarantine or other measures to reduce transmission,” to “develop, implement, and maintain effective policies” to prevent COVID-19 transmission from close contacts. Even the definition of “close contact” is now subject to change by CDPH “regulation or order.” Although many employers will be relieved by the apparent flexibility, the vagueness of the new rule will certainly cause issues with enforcement and potentially place too much discretion with Cal/OSHA inspectors to determine what is effective. Further, because the draft retains the requirement to provide exclusion pay when workers are excluded from the workplace, ambiguity in this area may be particularly problematic. Finally, in high-risk settings, because CDPH’s current return-to-work guidance still relies on vaccination status, if employers intend to return employees who are exposed to COVID-19 in the workplace prior to a full 10-day quarantine period, collection of proof of vaccination and boosters is necessary.

Specific Rules for COVID-19 Cases. In contrast to the lack of specific close-contact rules, the rules with respect to COVID-19 case exclusion and return are not left to conjecture. The proposed ETS codifies the substance of the exclusion requirements set forth in the current Cal/OSHA ETS FAQs with minor adjustments – for example, the proposed language now clearly states under what circumstances to count exclusion periods from symptom onset versus test date.

Types of Acceptable COVID-19 Tests Broadened. Except for purposes of return to work, the proposed ETS no longer restricts the types of COVID-19 tests that can be used to identify COVID-19 cases or otherwise be made available to employees when required, including during outbreaks. The restriction prohibiting use of self-administered and self-read tests applies only to return-to-work criteria unless “another means of independent verification can be provided,” such as a time-stamped photograph of the test results presumably taken by the employee.

Contaminated Surfaces no Longer a Hazard. Surfaces and objects potentially contaminated with SARS-CoV-2 are no longer included within the definition of “COVID-19 Hazard.” The proposed ETS removes all cleaning and disinfection requirements, including the requirement to clean an area used by a COVID-19 case.

No More Light Test. The requirement that face coverings not allow light to pass through has been removed.

No More Partitions. The minor and major outbreak provisions of the proposed ETS no longer require consideration or use of cleanable solid partitions whenever social distancing cannot be maintained.