Author: WorkCompAcademy

Physicians for a Healthy California (PHC), formerly known as the CMA Foundation, started in 1963 as a charitable arm of the California Medical Association (CMA), disbursing over $1 million dollars in grants and loans to medical students to support future physicians. It is dedicated to improving community health, growing a diverse physician workforce and promoting health equity.

A recent study, “A Prescription for Change,” by the nonprofit reveals a growing number of minority female doctors are feeling burned out and leaving their field of work.

Prior research has demonstrated that women physicians are more likely than their male counterparts to report feelings of “burnout.” Our prior research funded by The Physicians Foundation found that “burnout” among women physicians of color was uniquely associated with workplace harassment and low perceived value at work. Burnout and disengagement were also higher in women physicians whose competency was questioned by peers.

This follow-up study was undertaken to determine if there were changes in the rates of burnout among different races or the factors that contribute to career dissatisfaction since the beginning of the COVID-19 pandemic, and to collect data to inform health care organizations on effective strategies to improve the recruitment and retention of women physicians of color.

Reported burnout of respondents increased by 4.8 percentage points with 45.8% reporting high levels of overall burnout in the current study. Women physicians of color, whether represented or underrepresented in medicine, reported slightly lower overall burnout. When probed in focus groups, women physicians of color reported several protective factors that interviewees credited with their resilience.

Physician retention has been a growing problem for decades, exacerbated partly due to the COVID- 19 pandemic. California already suffers from severe physician shortages, creating vast underserved areas and under-resourced populations. Women physicians of color are more likely to serve these more vulnerable communities; therefore, to promote access to care and advance health equity, it is critical for health care organizations to implement effective strategies focused on the retention of this important group of clinicians.

Both the qualitative and quantitative research undertaken in this current study have led PHC researcher to develop eight recommendations for health care organizations to help address the retention of women physicians of color.

Summary of Recommendation to Improve Retention.

– – Commit to understanding, acknowledging and addressing the ways in which health care organizations influence attrition among women physicians of color.
– – Consider and accommodate for the effects of health care system changes on physicians, especially women physicians. Identify high-yield metrics to help determine success with diversity, equity and inclusion (DEI) programs and retention efforts.
– – Develop trusted mechanisms for employees to provide anonymous feedback to leadership.
– – Establish transparency into DEI measures and employee feedback, and develop an accountability framework that tracks plans to address inequities and outcomes.
– – Evaluate compensation, benefits, opportunities, and resources to ensure equity among genders and races.
– – Compensate for the diversity tax.
– – Revitalize employees’ sense of meaning and community at work.

This qualitative research also aligns with growing body of research that moral injury, rather than personal characteristics, is an important driver of physicians’ decisions to leave the workforce. In addition to the COVID-19 pandemic, interviewees reported several systemic issues leading them to feel stress and burnout including institutional racism, individual acts of discrimination committed by patients and colleagues, increased focus on revenue generation, decreased boundaries between work and personal life due to technology, and pressures to take on uncompensated diversity and equity work.

The Creek Fire ignited on December 5, 2017 in Los Angeles County, and damaged multiple properties before being extinguished. On December 11 and 12, 2017, counsel for several of the plaintiffs insurance companies sent evidence preservation letters to Southern California Edison asserting that they believed SCE’s equipment likely contributed to the ignition and spread of the fire.

Plaintiffs 21st Century Insurance Company et.al, filed their initial subrogation complaint against SCE on May 14, 2021. A master subrogation complaint filed on April 18, 2022, which plaintiffs joined, alleged that an electrical arc on SCE’s Lopez Circuit “ignite[d] nearby trees, brush, and vegetation giving rise to the Creek Fire.”

During discovery in the subrogation case, SCE withheld certain documents that it asserted were generated during an attorney initiated and directed internal investigation into the cause of the Creek Fire.

Plaintiffs moved to compel, arguing the attorney-client privilege and attorney work product doctrine did not exempt these documents from production. Among other things, plaintiffs argued that SCE could not assert privilege and withhold documents because the primary reason SCE conducted the investigation was to comply with state law requiring it to publicly report any involvement it had in causing the fire.

The trial court agreed the dominant purpose of the investigation was to comply with public reporting requirements, and held the documents thus were not privileged, and compelled production. SCE petitioned the Court of Appeal for a preemptory writ against the order compelling production of these documents.  

In the published case of Southern California Edison v Superior Court –B333798.PDF (May 2024), the Court of Appeal concluded that the trial court’s order improperly invaded the protection afforded by the attorney work product doctrine. A preemptory writ of mandate issue directing the trial court to vacate the November 17, 2023 order directing SCE to produce records in Los Angeles Superior Court case.

California law shields the “work product” of an attorney from disclosure in litigation. The legislative policy for affording this protection is to “[p]reserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases” (Code Civ. Proc., § 2018.020, subd. (a)) and “[p]revent attorneys from taking undue advantage of their adversary’s industry and efforts” (id., subd. (b)).

To that end, subdivision (a) of section 2018.030 describes what is known as “absolute” work product protection, while subdivision (b) describes “qualified” protection.

“A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.” (Id., subd. (a).) Any attorney work product that does not reflect counsel’s impressions, conclusions, opinions, or legal research or theories “is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.” (Id., subd. (b).)

“[T]he Legislature in enacting section 2018.030 did not define ‘work product’ and instead left the term open to judicial interpretation.” (Coito v. Superior Court (2012) 54 Cal.4th 480, 494 (Coito).) Courts have defined attorney work product as “the product of the attorney’s effort, research, and thought in the preparation of his client’s case. It includes the results of his own work, and the work of those employed by him or for him by his client, in investigating both the favorable and unfavorable aspects of the case, the information thus assembled, and the legal theories and plan of strategy developed by the attorney-all as reflected in interviews, statements, memoranda, correspondence, briefs, and any other writings reflecting the attorney’s ‘impressions, conclusions, opinions, or legal research or theories’ and in countless other tangible and intangible ways.

“The documents at issue, which SCE provided substantial evidence were prepared as part of an attorney led internal investigation, are the type of materials typically entitled to work product protection. Our Supreme Court’s decision in Coito is instructive.”

The U.S. Department of Labor has published the final rule, “Federal Register – Improving Protections for Workers in Temporary Agricultural Employment in the United States” effective on June 28, 2024.

The final rule strengthens protections for temporary agricultural workers by making several changes to H-2A program regulations to bolster the Department’s efforts to prevent adverse effect on workers in the U.S. and ensure that H-2A workers are employed only when there are not sufficient able, willing, and qualified U.S. workers available to perform the work.

These changes include empowering workers to advocate on behalf of themselves and their coworkers regarding working conditions; improving accountability for employers using the H-2A program; improving transparency and accountability in the foreign labor recruitment process; requiring seat belts in most vehicles used to transport workers; enhancing existing enforcement provisions; improving transparency into the nature of the job opportunity by collecting additional information about owners, operators, managers, and supervisors to better enforce program requirements; clarifying when a termination is “for cause” to protect essential worker rights; and revising provisions and codifying protections that are outdated, unclear, or subject to misinterpretation in the current regulations.

The final rule also strengthens protections for temporary agricultural workers when employers fail to properly notify workers that the start date of work is delayed, and clarifies and streamlines procedures to prevent noncompliant employers from using the Employment Service.

The Department of Labor will host a public webinar on Thursday, June 6, 2024, to educate employers, agricultural associations, farm labor contractors, farmworkers, advocates, and other interested members of the public on the changes to the H-2A and Wagner-Peyser Employment Service programs made by the 2024 Farmworker Protection Final Rule.

Participants of this webinar will learn from the Office of Foreign Labor Certification, the Office of Workforce Investment, and the Wage and Hour Division about the key aspects of this rule.

The Final Rule will become effective June 28, 2024, and OFLC will begin accepting applications subject to the provisions of this rule on August 29, 2024.

Additional Information

– – Final Rule: Improving Protections for Workers in Temporary Agricultural Employment in the United States
– – Frequently Asked Questions
– – H-2A Employer’s Guide to the Final Rule “Improving Protections for Workers in Temporary Agricultural Employment in the United States”
– – Flyer: Protections for Workers Employed Under the H-2A Program (English and Spanish)
– – Flyer: Protections for U.S. Workers Under the H-2A Program (English and Spanish)
– – Proposed rule

Arasely Soto was injured during a routine medical procedure and had to retire from her job as a public school teacher. She sued her medical providers for medical malpractice and also sought disability retirement benefits from the California State Teachers’ Retirement System (CalSTRS).

The Sotos attended a CalSTRS benefits planning session in January 2018. CalSTRS gave them information and documents about applying for disability benefits. The documents explained CalSTRS’s “[r]ight of subrogation” as follows: “[I]f you pursue a claim against a third party for the same impairment that entitles you to a disability benefit from CalSTRS, you must notify us. This is true even if the claim has not yet resulted in a court action. [¶] CalSTRS has the right to participate in the claim by filing our own action against the responsible party, intervening in your claim, or filing a lien against any judgment you may recover. [¶] If you don’t notify CalSTRS and you recover – or have already recovered – a monetary sum from the third party, you may be required to reimburse CalSTRS for part of the costs of your disability benefit.”

One day after the Sotos’ benefits planning session with CalSTRS, they released their claims against Dr. Borna in exchange for a six-figure settlement. Ten days later, Arasely filled out an application for disability benefits. Her application stated that her injuries were caused by employees of the hospital, including Dr. Borna.CalSTRS acknowledged receipt of Arasely’s application for disability benefits in February 2018. That same day, the court in the malpractice action granted the Sotos’ request to dismiss Dr. Borna from the lawsuit.

In May 2018, the Sotos released their claims against the hospital in exchange for a seven-figure settlement. Eight days later, the Sotos dismissed the malpractice action with prejudice.

CalSTRS brought suit against the Sotos, seeking to enforce its right to subrogation or reimbursement. The complaint alleges that CalSTRS is entitled to be reimbursed for Arasely’s disability benefits from her settlement with the malpractice defendants.

CalSTRS moved for summary adjudication on its declaratory relief cause of action, and the Sotos moved for summary judgment. In connection with both motions, the Sotos argued that Civil Code section 3333.1 bars any subrogation claim that CalSTRS would have asserted against the malpractice defendants.

Subdivision (a) of section 3333.1 authorizes a defendant in a medical malpractice action to introduce evidence of a variety of ‘collateral source’ benefits – including health insurance, disability insurance or worker’s compensation benefits.” Subdivision (b) of the statute provides, in turn, that ‘[n]o source of collateral benefits introduced pursuant to subdivision (a) shall recover any amount against the plaintiff nor shall it be subrogated to the rights of a plaintiff against a defendant.”

In opposition, CalSTRS argues that (1) CalSTRS was not a source of collateral benefits for purposes of section 3333.1; (2) Arasely’s disability retirement benefits were never introduced as evidence in the malpractice action; and (3) the statutes governing CalSTRS’s right of subrogation were enacted after section 3333.1, and the later-enacted statutes prevailed.

The trial court ruled in favor of Cal/STERS. The Court of Appeal affirmed the trial court in the published case of Soto v. Super. Ct. -E081902 (May 2024). It expressed no opinion on the parties’ legal arguments concerning the applicability of section 3333.1 in general.

The Legislature enacted section 3333.1 in 1975 as part of the Medical Injury Compensation Reform Act (MICRA), a wide-ranging statutory scheme designed to reduce the cost of medical malpractice insurance ‘by limiting the amount and timing of recovery in cases of professional negligence. MICRA addressed the problem in numerous ways, including by revising certain legal rules applicable to medical malpractice litigation. (

Education Code section 24500 grants CalSTRS “a right of subrogation” for the amounts CalSTRS “paid and became obligated to pay as disability retirement allowances, disability allowances, family allowances, or survivor benefit allowances.” (Ed. Code, § 24500; see Ed. Code, § 22174.)

The Legislature enacted the statutes giving CalSTRS a right of subrogation in 1988. (Ed. Code, former §§ 23300-23305, added by Stats. 1988, ch. 380, § 1, pp. 1699-1700, repealed and reenacted as Ed. Code, §§ 24500-24505 by Stats. 1993, ch. 893, §§ 1-2, pp. 4867, 4973-4974.) According to the legislative history, the CalSTRS subrogation provisions were “patterned” on the subrogation provisions governing the California Public Employees’ Retirement System (CalPERS).

“The CalPERS provisions also incorporate the workers’ compensation statutes, and the pertinent language of the CalSTRS and CalPERS subrogation provisions is nearly identical.”

The workers’ compensation subrogation provisions bar double recovery by an employee who claims workers’ compensation benefits “and also seek[s] damages for the employee’s injury or death from negligent third parties.”

Section 3333.1, subdivision (a), does not specify how jurors should use the collateral source evidence, but “the Legislature apparently assumed that in most cases the jury would set plaintiff’s damages at a lower level because of its awareness of plaintiff’s ‘net’ collateral source benefits.

But the employer’s consent is not required if the settlement includes only the employee’s claim for damages that will not be paid by workers’ compensation benefits. (Lab. Code, § 3859, subd. (b); Marrujo, at p. 978.) That is, the employee may segregate their claim from that of the employer and settle it without the employer’s consent. (Board of Administration v. Glover (1983) 34 Cal.3d 906, 913 (Glover); Marrujo, at p. 978.)

If the employee segregates and settles their claim in that manner, then the settlement is not subject to the employer’s claim for reimbursement of workers’ compensation benefits, while the employer retains its subrogation right “against the alleged tortfeasor to recover payments it had made to its employee.” (Glover, at p. 914; Marrujo, at p. 978; Lab. Code, § 3860, subd. (b).) But if the employee settles an unsegregated claim (i.e., a claim that includes both the employer’s claim for reimbursement of benefits and the employee’s claim for damages not compensated by benefits), then the employer may seek reimbursement out of the settlement proceeds.

The Sotos did not offer any evidence that the malpractice defendants sought to introduce evidence of Arasely’s disability retirement benefits in the underlying action, so section 3333.1 was never triggered. In addition, if the Sotos had offered such evidence, then section 3333.1 would be irrelevant. The same evidence would tend to show that CalSTRS has no reimbursement claim against the Sotos for reasons independent of section 3333.1.

Bertha Perez sustained injury to her back while working for World Variety Produce as a produce packer on August 27, 2010. On May 1, 2011, she underwent surgery, and lien claimant, Monrovia Memorial Hospital, provided the employer’s carrier, Zurich North America, with an invoice for $67,497.95.

Pursuant to the recommendations made by its bill review company, Zurich paid $15,857.48. Monrovia Memorial Hospital filed its lien for the balance of its invoice.

On May 6, 2015, a WCJ ordered lien claimant and defendant to forward all relevant documentation and/or evidence as to the value of the lien claimant’s services to a jointly selected bill review expert, Stelzner and Kyle Consulting.

On March 14, 2016, the matter proceeded to a lien conference and the parties set the matter for trial. Over the next few years a number of hearings took place regarding the issues surrounding the lien of Monrovia Memorial Hospital.

On September 18, 2018, defendant filed a Petition for Restitution/Reimbursement in which it alleged that “[r]ather than provide the information to IBR as directed by the Court, the lien claimant submitted the billing again to defendant which accidentally paid it in full.” Zurich requested reimbursement for the $51,640.47 check issued to Monrovia Hospital on May 16, 2018 for unjust enrichment. On October 26, 2018, the matter proceeded to trial on defendant’s claim for restitution and defendant’s petitions for sanctions, costs and fees.

On January 3, 2019, the WCJ issued Amended Findings and Orders, ordering lien claimant to pay restitution in the sum of $51,640.00 as well as sanctions, costs and attorneys’ fees under section 5813 and WCAB Rule 10561. Lien claimant sought reconsideration of the WCJ’s January 3, 2019 Amended Findings and Orders. On March 25, 2019, the WCAB granted reconsideration based upon a lack of substantial evidence to support the WCJ’s findings.

Because the WCJ did not admit any exhibits or testimony during the October 26, 2018 trial, the WCAB panel was unable to determine whether lien claimant would be unjustly enriched if it retained the disputed payment or whether sanctions were justified. Thus it rescinded the WCJ’s decision and returned the matter to the trial level for further proceedings.

The matter appeared again for trial on September 23, 2019, at which time the parties submitted exhibits and testimony. On November 8, 2019, the WCJ issued the disputed F&O, finding that, pursuant to the IBR calculation issued on November 12, 2015, the reasonable value of lien claimant’s services was $15,857.48, which defendant had previously paid.

The WCJ also ordered that lien claimant pay defendant $51,640.00 in restitution as a result of unjust enrichment. The WCJ also found that lien claimant and its representative employed bad faith, frivolous litigation tactics in violation of section 5813 and WCAB Rule 10561 warranting sanctions in the amount of $2,500.00 payable to the WCAB. The WCJ also awarded defendant costs and fees to be determined by subsequent court order.

After this second Petition for Reconsideration was filed by Monrovia, the November 8, 2019 F&O was affirmed in the panel decision of Perez v World Variety Produce –ADJ7447035 (May 2024).

In its Petition for Reconsideration, lien claimant contends that the WCJ erred by 1) awarding restitution to defendant, as there is no evidence of unjust enrichment, and 2) awarding sanctions, costs, and fees, as there is no evidence that it engaged in bad faith or frivolous conduct in violation of section 5813 or WCAB Rule 10561. Both assertions were rejected by the WCAB panel.

“Restitution is an equitable remedy which has primarily been utilized by courts to prevent unjust enrichment. Under certain circumstances it has been held that administrative tribunals such as the [WCAB] may appropriately employ equitable remedies. Such use by the Board would seem particularly justified, for example, when fraud has been charged and proven.” (American Psychometric Consultants, Inc. v. Workers’ Comp. Appeals Bd. (Hurtado) (1995) 36 Cal.App.4th 1626, 1645-1646 [60 Cal.Comp.Cases 559], citations omitted.)

In this case, the WCJ found that lien claimant engaged in improper conduct leading to unjust enrichment, where it circumvented defendant’s typical processes for handling disputed lien claims. Specifically, the WCJ found that lien claimant intentionally bypassed defendant’s internal procedures by demanding payment from its medical review department, rather than its claims department, and that lien claimant knew or should have known that the resulting payment in full was made in error, particularly where the bill amount was still being litigated.

Here, the WCJ found that sanctions should issue as a result of lien claimant’s willful failure to comply with the court’s May 6, 2015 Findings and Order requiring it to forward all documentation showing the value of its services for IBR for roughly three years.