Author: WorkCompAcademy

Many California agricultural workers have been exposed to a pesticide known as Roundup, and some of them may develop cancers. These cancer cases can then become continuous trauma claims under workers’ compensation law.

Thousands of Roundup tort cases are pending in civil courts in several states. A favorable outcome will likely support subrogation in the decades ahead for these claims.

Monsanto Company manufactures Roundup, a pesticide with the active ingredient glyphosate. Bayer AG acquired the agrochemical company in a multibillion-dollar merger in 2018.

Bayer to date has lost several U.S. jury trials in the Roundup litigation, with juries in California awarding multi-million dollar awards. In a recent California case, the jury returned a verdict in favor of plaintiff Edwin Hardeman, awarding him $5,267,634.10 in compensatory damages and $75 million in punitive damages. The district court reduced the jury’s punitive damages award to $20 million. This May, the Ninth Circuit Court of Appeals affirmed the a district court result in the published case of Edwin Hardeman v Monsanto Company.

These bellwether cases led up to attorneys for certain individual plaintiffs in the Multi District Litigation pending in Northern California, negotiating a class action settlement with Monsanto that would cover potential future lawsuits. Last February, Bayer announced it had reached a $2 billion settlement resolving outstanding and future legal issues). The proposed compensation would only have been considered for those who develop non-Hodgkins lymphoma within four years of settlement.

Attorneys representing cancer victims objected to the proposed settlement earlier this month and, ultimately, Judge Vince Chhabria agreed with them. In his newly issued opinion, Chhabria said Bayer’s proposed settlement was “clearly unreasonable” with “glaring flaws” that “vastly overstated” the potential benefits to future cancer victims from Roundup, particularly those who have not yet been diagnosed.

Judge Chhabria added “This is not a situation where the defendant is at risk of going bankrupt, such that only the first set of plaintiffs will be able to recover. Bayer (which recently acquired Monsanto) is a massive, wealthy company, and it continues to make money specifically from Roundup sales.”

“Nor is there any indication that the company will cease its efforts to settle cases. As recently as last week, Bayer stated publicly that it remains committed to settling Monsanto’s Roundup litigation. This is not surprising because the alternative to settling – continuing to lose trials left and right – is not attractive.”

In 2019, Chhabria oversaw the first federal trial on Edwin Hardeman’s claims that Monsanto sold Roundup without a warning label, after which a jury awarded Hardeman $75 million in punitive damages after finding years of Roundup use likely caused his non-Hodgkin lymphoma.

Shauna Van Brunt sustained an admitted injury to the lumbar spine and left lower leg while working for VCA Antech Inc., a large network of veterinary hospitals and clinical laboratories.

Her PTP submitted multiple requests for authorization, each for a quantity of 450 Buprenorphine pills. The requests for authorization were submitted for utilization review, which certified progressively reduced quantities of the Buprenorphine between July 15, 2020 and October 22, 2020, eventually denying certification of Buprenorphine in UR determinations dated November 16, 2020 and November 24, 2020.

Independent Medical Review was requested for the UR decisions dated September 22, 2020 and October 22, 2020. The former certified 360 Buprenorphine pills, and the latter certified 325 pills. Both were upheld in IMR determinations dated November 16, 2020 and November 24, 2020. There was no appeal of the IMR determinations.

The parties appeared at an Expedited Hearing on December 18, 2020. The issues were whether it was appropriate for defendant, through UR, to wean the applicant off a medication on which she is dependent, and whether there was jurisdiction for the Appeals Board to address this dispute.

The WCJ found that the Appeals Board lacks jurisdiction to review the UR decisions and the IMR decisions. Applicant sought reconsideration or in the alternative removal of the Findings of Fact. The WCAB denied both in the panel decision of Shauna Van Brunt v. VCA Antech, Inc., 2021 Cal. Wrk. Comp. P.D. LEXIS 114.

The Appeals Board has jurisdiction to determine whether a UR decision is timely. (Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298, 1299 (Appeals Board en banc) (Dubon II).)

However, “where a UR decision is timely, IMR is the sole vehicle for reviewing the UR physician’s expert opinion regarding the medical necessity of a proposed treatment.” (Id. at pp. 1310-1311; see also Lab. Code, §§ 4062(b), 4610.5; King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1048 [83 Cal.Comp.Cases 1523] [IMR “is the exclusive mechanism for review of a utilization review decision”].)

Additionally, applicant did not demonstrate in what way defendant’s actions constitute bad faith.

With respect to her arguments that more than one UR reviewer was not authorized by regulations, “the statute does not state that all utilization review pertaining to a single patient or extended course of treatment must be conducted by the same reviewer.”

With respect to applicant’s contention that she had been taking Buprenorphine for years and there was no change in circumstances when additional requests for this medication were made, the Appeals Board has previously found that recurring prescriptions are not the sort of ongoing care that cannot be unilaterally terminated. (See Mumm v. Workers’ Comp. Appeals Bd. (2020) 85 Cal.Comp.Cases 647 (writ den.)

Authorization of one prescription does not automatically mean that recurring prescriptions of that medication must be authorized indefinitely; the treating physician has an obligation to document the need for each recurring prescription, especially when the prescriptions are for heavily regulated opioid medications.

A new FlashReport from the Workers Compensation Research Institute (WCRI) finds that in most states, dermatological agents and nonsteroidal anti-inflammatory drugs (NSAIDs) have become more important than other drug groups as a share of total prescription payments. The 28 states in the study include California.

“This study finds that prescription payments are decreasing in a majority of state workers’ compensation systems, but prescription payments continue to vary widely,” said John Ruser, president and CEO of WCRI. “This study breaks prescription drugs into groups (dermatological agents, NSAIDs, opioids, compounds, etc.) so you can see where workers’ compensation prescribing dollars are being spent and whether spending for those groups of drugs is going up or down.”

The following is an abbreviated list of the study’s other findings:

– – Dermatological agents: Per-claim payments varied widely, from $7 per claim in Iowa to $181 per claim in Illinois and $190 per claim in Louisiana in 2020Q1. Physician dispensing accounted for the majority of payments for the drug group in 12 of the 28 study states. Between 2017Q1 and 2020Q1, payment shares increased by more than 10 percentage points in 5 states (Connecticut, Kansas, Louisiana, South Carolina, and Virginia) and physician dispensing contributed to the rapid growth.
– – NSAIDS: Payment shares for this drug group changed little in many states, but per-claim payments varied widely in 2020Q1, from $21-$22 per claim in Delaware and Massachusetts to $126 per claim in Louisiana.
– – Anticonvulsants: Both payment share and per-claim payment for this group decreased in many states over the study period. The decrease happened mostly between 2019Q2 and 2019Q3, when generic formulations of Lyrica® became available.
– – Opioids: The substantial decline for opioids during the study period continues the declines seen in previous periods. The per-claim payments for opioids decreased by 56 percent in the typical state, and the rate of reduction ranged from 40 percent in Louisiana to 81 percent in California.

In the dermatological category, prescriptions for diclofenac sodium gel accounted for the majority of the prescriptions in the median state, Vennela Thumula, policy analyst for WCRI said, and lidocaine was also commonly prescribed.

While about 56% of the workers prescribed topical diclofenac had documented diagnoses of soft tissue injuries of joints – for which the drug is approved – about 40% of workers were using it for treatment not recommended, often for shoulder and back pain, she said.

Another cost driver in dermatologicals is private-label topicals, which are independently manufactured and not recommended by evidence-based guidelines and also have a much higher price tag compared to comparable products” approved by the Official Disability Guidelines Workers’ Compensation Drug Formulary, also known as ODG, Ms. Thumula said.

Among claims with topicals, private-label topicals are rarely dispensed in half of the study states, but at least a third of the claims have private-label topicals in Louisiana, New Mexico, Maryland, Illinois and South Carolina, and it’s even higher in Delaware,” she said.

On May 19, 2021, the eve of a vote by the Occupational Safety and Health Standards Board to adopt proposed substantial changes to the existing Cal/OSHA COVID-19 Emergency Temporary Standards (ETS), Eric Berg, Deputy Chief of Cal/OSHA, asked that the Standards Board not vote the next day, on May 20, 2021, to adopt Cal/OSHA’s proposed ETS revisions.

Berg asked that the Standards Board allow Cal/OSHA to present a new proposal at a future meeting with a targeted effective date of June 15, 2021, for its new proposal.

May 13, 2021, the U.S. Centers for Disease Control and Prevention (CDC) updated its guidance to allow fully-vaccinated individuals to forego masks in some situations.

Cal/OSHA also explained that four days after the CDC’s announcement, on May 17, 2021, the California Health & Human Services Agency secretary had expressed that California intended to implement the CDC’s masking guidance on June 15, 2021. This is the same date that Governor Newsom announced as the state’s goal for reopening California’s economy fully.

However, labor officials and worker advocates are pushing back against adoption of the loosened masking guidance for fully vaccinated individuals.

Cal/OSHA had published the draft ETS proposal on May 7, 2021. Labor law lawyers say that these new developments appear to be the reason that Cal/OSHA asked that the Standards Board not adopt the draft ETS proposal on May 20, 2021. Given the recent CDC guidance and California’s impending reopening, Cal/OSHA appears to be reconsidering the proposal it wishes to present to the Standards Board.

For now, the Society for Human Resource Management (SHRM) recommends that while we wait for new proposed revisions to Cal/OSHA’s ETS, it is important to remember that California employers are still under the current safety standard – which makes no accommodation for fully vaccinated employees when it comes to masking.

The only loosened restriction that California employers may currently follow is the updated guidance easing quarantine restrictions for fully vaccinated asymptomatic employees in non-healthcare workplaces.

Charles Hart worked for Town Los Gatos as an engineering inspector.

On August 19, 2003, while inspecting a construction site, Hart slipped, fell onto a pile of rebar, and injured his lower back. Town accepted liability for the claim. Hart was off work for eight days – from August 20 until August 27, 2003 – and returned to work on full duty. Hart was off work again for 30 days in 2004 – from July 10 until August 8, 2004 – and returned to work on full duty. Hart continued to work for Town until he retired on December 11, 2009, at age 68.

The case went to trial before a WCJ in 2017. Since Hart’s date of injury and the last day for which TD benefits had been paid were both before January 1, 2005, the WCJ held that Hart’s PD was to be rated under the 1997 permanent disability rating schedule, which is not based on the Guides and relies on a different system to rate work related impairments.

Hart’s vocational rehabilitation expert opined that Hart was unable to obtain and sustainably retain competitive gainful employment and that he was not amenable to vocational rehabilitation services.

The WCJ found the injury caused 100 percent PD and awarded Hart total PD payments of $602 per week for life. Since he was injured after January 1, 2003 and was awarded 100 percent PD, the WCJ found that Hart was entitled to annual COLA’s on his total PD benefits, permanent and stationary in May 2011, his first COLA was due on January 1, 2012 and every January 1 thereafter.

The WCJ cited Duncan v. Workers’ Comp. Appeals Bd. (2009) 179 Cal.App.4th 1009 (Duncan) in support of his COLA award which was, overruled in by the California Supreme Court in Baker Workers’ Comp. Appeals Bd. (2011), 52 Cal.4th 434 at page 437. eight years before the WCJ made his award.

Town petitioned for reconsideration, and argued that the WCJ erred in ordering the COLA to start on January 1, 2012 and that the correct start date for the COLA was January 1, 2017 (the January 1st after Hart’s TD benefits ended and he became entitled to receive total PD benefits). Reconsideration of this issue was denied with the WCAB failing to discuss the effect of Baker overruling Duncan.

The Court of Appeal Reversed in the unpublished case of Town of Los Gatos v W.C.A.B.

The Court of Appeal ruled that the “WCAB’s decision regarding the start date for the section 4659 COLA’s was clearly erroneous.”  Based on the plain language of section 4659(c), the Supreme Court held that to “receive the benefit of a COLA on any given January 1, a worker who has sustained an industrial injury must meet two conditions.

First, he or she must have been injured ‘on or after January 1, 2003 . . . .’ ” (Baker, supra, 52 Cal.4th at p. 443, quoting § 4659(c).) Hart meets that condition since he was injured on August 19, 2003. Second, the injured worker “must ‘become entitled to receive a life pension or total permanent disability indemnity . . .’ ” (Baker, at p. 443.)

“Town argues that the WCAB erred by failing to follow binding Supreme Court precedent in Baker. We agree. Indeed, as noted, rather than cite Baker in his opinion on decision in 2020, the WCJ relied on Duncan, supra, 179 Cal.App.4th 1009, which was superseded by a grant of review in 2010 and overruled in Baker in 2011. Even after that error was briefed by Town in its petition for reconsideration, the WCJ (and the WCAB) continued to ignore Baker. “