Author: WorkCompAcademy

The Organisation for European Economic Cooperation (OEEC) was established in 1948. Other countries joined in, starting with Japan in 1964. Today, 36 OECD member countries worldwide identify problems, discuss and analyse them, and promote policies to solve them.

The OECD has just reported that opioid use has reached crisis proportions not only in the United States but also in Canada and some European countries, as prescription opioid painkillers have become much more common.

“The United States is by no means alone in facing this crisis,” the Organization for Economic Cooperation and Development said in its report. The Paris-based policy forum said deaths linked to opioid use were also rising sharply in Sweden, Norway, Ireland, and England and Wales.

Ilicit opioids constitute a significant product of international illicit trade. Heroin is a semi-synthetic opiate synthesised from morphine and is the most prevalent illicit opioid worldwide. Approximately twice as potent as morphine, heroin has a high potential for problematic use. In recent years, fentanyl and fentanyl analogues have become much more prominent in the illicit drugs scene in many countries.

The majority of those who die in Europe are men, accounting for 3 out of 4 deaths. However, in the United States, opioid use has been rising among pregnant women, particularly among those on low incomes. Having a mental health disorder was also associated with a two-fold greater use of prescription opioids in the US.

An increase in prescription and over-prescription of opioids for pain management is among the factors driving the crisis. Governments should review industry regulations to ensure they protect people from harm as, since the late 1990s, manufacturers have consistently downplayed the problematic effect of opioids.

Doctors should improve their prescribing practices, for instance through evidence-based clinical guidelines and increased surveillance of opioid prescriptions. Governments can also regulate marketing and financial relationships with opioid manufacturers. Coverage for long-term medication-assisted therapy, such as methadone and buprenorphine, should be expanded.

Strengthening the integration of health and social services, such as unemployment and housing support, and criminal justice systems would help improve treatment for people with Opioid Use Disorder.

Interim Incorporated provides housing and related services to adults with mental health disabilities. Interim hired Tommie Fields, an African-American man, as a counselor in 1989. During his 22-year career with Interim, he was one of the few African-American male counselors or employees.

Fields brought a worker’s compensation claim for psychiatric injuries. At the hearing, Interim argued that its decision to terminate Fields’s employment was “a nondiscriminatory, good faith personnel action” under Labor Code section 3208.3, subdivision (h), and thus Fields was not entitled to any benefits for his injuries.

The WCJ rejected this argument and found that Interim’s termination of Fields’s employment “was not a good faith personnel action; had the termination been a good faith personnel action it would not have met the . . . threshold necessary to bar the injury claim.”

Interim filed a petition for reconsideration with the Worker’s Compensation Appeals Board (WCAB) in which it argued that there was insufficient evidence to support the order. Reconsideration was denied.

Fields also brought a wrongful termination civil action against Interim Incorporated based on allegations of racial discrimination, harassment, and retaliation pursuant to the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).

The jury found in favor of Interim on the FEHA and wrongful discharge causes of action. However, the jury found in favor of Fields on his intentional infliction of emotional distress cause of action and awarded him $2 million in damages. The trial court later granted Interim’s motion for judgment notwithstanding the verdict.

On appeal, Fields contends that the trial court erred when it concluded that Interim was not collaterally estopped from presenting evidence of its nondiscriminatory, good faith personnel action. The Court of Appeal agreed and reverse the judgment in the unpublished case of Fields v Interim Incorporated.

The doctrine of collateral estoppel bars relitigation of an issue that has been decided in a former proceeding, including a worker’s compensation proceeding.

An employer, who has failed to establish that the employee’s psychiatric injuries were substantially caused by its lawful, nondiscriminatory, good faith personnel action in a worker’s compensation proceeding, cannot establish that its adverse employment action was based upon legitimate, nondiscriminatory factors under FEHA. Thus, one of the issues in the WCAB proceeding was identical to the issue at trial, that is, whether Interim’s termination of Fields’s employment was lawful and nondiscriminatory.

In a major positive development for gig economy businesses, the U.S. Department of Labor issued an opinion letter confirming that certain workers providing work for a virtual marketplace company are, indeed, independent contractors.

While this letter can only be used as an authoritative legal defense by the specific (unnamed) gig economy business that requested the letter, this publication still provides the federal government’s official interpretation on whether a certain business model or practice complies with the law.

The agency applied its longstanding and unchanged six-factor balancing test, derived from Supreme Court precedent, to determine whether the workers are economically independent (leading to a finding of contractor status) or economically dependent (leading to an employee finding) in the working relationship with the entity in question. The six factors are as follows:

1) The nature and degree of the potential employer’s control.
2) The permanency of the worker’s relationship with the potential employer.
3) The amount of the worker’s investment in facilities, equipment, or helpers.
4) The amount of skill, initiative, judgment, or foresight required for the worker’s services.
5) The worker’s opportunities for profit or loss.
6) The extent of integration of the worker’s services into the potential employer’s business.

In the announcement accompanying the publication of the letter, the USDOL confirmed that the opinion letter was an official, written opinion by the Department’s Wage and Hour Division on how the FLSA applies in the specific circumstances presented by the entity that requested the letter.

“An important role of the U.S. Department of Labor is to ensure that employers who want to do the right thing have clear compliance assistance,” said Keith Sonderling, Acting Administrator of the Department’s Wage and Hour Division. “Today, the U.S. Department of Labor offers further insight into the nexus of current labor law and innovations in the job market.”

Kris Wilson was employed as a firefighter by the Department of Forestry when he reported to a wildfire in Lompoc. He was assigned to the drainage area where he inhaled fumes and smoke from the fire as he was not wearing a breathing apparatus. Applicant performed this work for several hours until approximately 8:00 a.m. the next day.

The next day he went to Sierra Vista Hospital in San Luis Obispo and went through the emergency department, and was later taken to Kaiser, and then to the Antelope Valley Hospital where he was admitted to the ICU and remained hospitalized for two weeks. He developed ulcerations of the tongue, mouth and lips. He vomited with high fevers and developed a rash all over his entire body. He had renal failure, transaminitis with interstitial infiltrates and respiratory failure requiring intubation. He was ultimately extubated approximately two weeks after his admission to the hospital.

He returned to work a year later but was unable to keep pace with his coworkers and became concerned about his ability to work as a firefighter. He was taken off work by his PTP and last worked in July 2015.

Wilson claimed injury to his lungs, psyche, left eye, head, brain, heart and circulatory system. A psychiatric PQME said that Wilson “described feeling emotionally traumatized following his symptoms resulting from the fire and by his near death experience in the hospital following his injury. As reported above, he believes that he has a serious physical injury that may kill him, shorten his life or send him back to the hospital. He has a vivid memory of waking up while he was intubated at the hospital and this is re-experienced in a recurring nightmare approximately 2 to 3 times each week”.

The WCJ issued a Findings and Award which found that applicant is entitled to a permanent disability award of 66%. The permanent disability award excluded an impairment rating for applicant’s psychiatric injury pursuant to section 4660.1(c) finding that he had not suffered a catastrophic injury. Reconsideration was granted, and it was found that Wilson suffered a catastrophic injury and was entitled to the psychiatric component of his injury in the En Banc decision of Wilson v State of California, Cal-Fire.

Since the phrase “catastrophic injury” is ambiguous as used in section 4660.1(c)(2)(B), the WCAB considered extrinsic sources to “select the construction that comports most closely with the apparent intent of the Legislature.”  It concluded that the “Legislature did not intend to permit an increased impairment rating for a psychiatric injury only in cases where the employee suffers a specific impact to his or her earning capacity as a result of the injury.”

However, determination of whether an injury is catastrophic will be a fact-driven inquiry. These factors include, but are not limited to, the following, as relevant::

1. The intensity and seriousness of treatment received by the employee that was reasonably required to cure or relieve from the effects of the injury.
2. The ultimate outcome when the employee’s physical injury is permanent and stationary.
3. The severity of the physical injury and its impact on the employee’s ability to perform activities of daily living (ADLs).
4. Whether the physical injury is closely analogous to one of the injuries specified in the statute: loss of a limb, paralysis, severe burn, or severe head injury.
5. If the physical injury is an incurable and progressive disease.

Not all of these factors may be relevant in every case and the employee need not prove all of these factors apply in order to prove a “catastrophic injury.” This list is also not exhaustive and the trier of fact may consider other relevant factors regarding the physical injury. In determining whether an injury is catastrophic, the trier of fact should be mindful of the legislative intent behind section 4660.1(c).

The evidence in this case “therefore supports that the intensive treatment and the lasting impact of the injury on applicant have resulted in a catastrophic injury.”

In 2008, a putative class action was filed in the District of Massachusetts by a Massachusetts plaintiff, Giovani Depianti, and two Pennsylvania plaintiffs, against Jan-Pro Franchising International Inc. By the end of that year, there was an additional plaintiff from Massachusetts plus seven more from other states, including three who are California residents.

They all had a common cause to pursue: that Jan-Pro, a major international janitorial cleaning business, had developed a sophisticated “three-tier” franchising model to avoid paying its janitors minimum wages and overtime compensation by misclassifying them as independent contractors.

The Massachusetts district court severed the California plaintiffs’ claims and sent them to the Northern District of California, the plaintiffs’ place of residence. Over the years, the cases progressed in several jurisdictions, including California and Georgia, as well as the original case in Massachusetts. The First Circuit’s Depianti opinion, characterizing “the nearly decade long life-cycle” of the Depianti litigations as a “Whirlwind Procedural Tour,” 873 F.3d at 24, aptly traces that tour.

Ultimately all of them were dismissed including the one in California. The California case was appealed to the 9th Circuit Court of Appeals. Because the California Supreme Court decision in Dynamex Ops. W. Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018), adopted the “ABC test” for determining whether workers are employees under California wage order laws.postdated the district court’s decision, the 9th Circuit Court of Appeals issued an order directing the parties to brief its effect of Dnyamex on the merits of this case.

The Ninth Circuit Court of Appeals held in the published case of Vazquez v Jan-Pro Franchising International Inc., that Dynamex applied retroactively, and that the case must be remanded to the district court to consider the merits in light of Dynamex.

As the Supreme Court of California has explained, it “is basic in our legal tradition” that “judicial decisions are given retroactive effect.” Newman v. Emerson Radio Corp., 772 P.2d 1059, 1062 (Cal. 1989). This is true even for decisions that overrule precedent. As in the federal system, appellate courts in California apply intervening state supreme court rules retroactively when reviewing cases, even if the judgment in the trial court was entered prior to the ruling from the California Supreme Court. See, e.g., Penn v. Prestige Stations, Inc., 83 Cal. App. 4th 336, 339 (2000).

The California Supreme Court has repeatedly quoted then-Justice Rehnquist in explaining that “[t]he principle that statutes operate only prospectively, while judicial decisions operate retrospectively, is familiar to every law student.” Evangelatos v. Superior Court, 753 P.2d 585, 596 (Cal. 1988) (emphasis omitted) (quoting United States v. Sec. Indus. Bank, 459 U.S. 70, 79 (1982)).

The opinion has major implications for California employers that rely on independent contractors, including gig economy companies like Uber Technologies and Postmates, and could even compel some businesses to simply reclassify contractors as employees and change pay and benefits.