Author: WorkCompAcademy

Nearly three years ago, the N.F.L. and lawyers for thousands of retired football players agreed to resolve lawsuits brought by former players who alleged that the NFL failed to inform them of and protect them from the risks of concussions in football. The District Court approved a class action settlement that covered over 20,000 retired players and released all concussion-related claims against the NFL. Objectors have appealed that decision to the United States Court of Appeals for the Third Circuit, arguing that class certification was improper and that the settlement was unfair.

The huge case had its birth in California. In July 2011, 73 former professional football players sued the NFL and Riddell, Inc. in the Superior Court of California. The NFL removed the case to federal court on the ground that the players’ claims under state law were preempted by federal labor law. More lawsuits by retired players followed and the NFL moved to consolidate the pending suits before a single judge for pretrial proceedings which was granted. The cases ultimately ended up in a federal court for the Eastern District of Pennsylvania as a multidistrict litigation.

Under the settlement, retired players or their beneficiaries are compensated for developing one of several neurocognitive and neuromuscular impairments or “Qualifying Diagnoses.” This award is subject to several offsets, that is, awards decrease: (1) as the age at which a retired player is diagnosed increases; (2) if the retired player played fewer than five eligible seasons; (3) if the player did not have a baseline assessment examination; and (4) if the player suffered a severe traumatic brain injury or stroke unrelated to NFL play.

The Monetary Award Fund is uncapped and will remain in place for 65 years. Every retired player who timely registers and qualifies during the lifespan of the settlement will receive an award. If, after receiving an initial award, a retired player receives a more serious Qualifying Diagnosis, he may receive a supplemental award.

Of the over 20,000 estimated class members (the NFL states that the number exceeds 21,000), 234 initially asked to opt out from the settlement and 205 class members joined 83 written objections submitted to the District Court. Before the fairness hearing, 26 of the 234 opt-outs sought readmission to the class. After the District Court granted final approval, another 6 opt-outs sought readmission. This leaves 202 current opt-outs, of which class counsel notes only 169 were timely filed.

This appeal principally presents two questions – whether the District Court abused its discretion (1) in certifying the class of retired NFL players and (2) in concluding that the terms of the settlement were fair, reasonable, and adequate. Objectors (95 in all) have filed 11 separate briefs totaling some 500 pages addressing these questions.

On April 18, the Court of Appeals approved the settlement in the 69 page decision. After reviewing the case and all of the arguments submitted by the objectors, the Court concluded. “It is the nature of a settlement that some will be dissatisfied with the ultimate result. Our case is no different, and we do not doubt that objectors are well-intentioned in making thoughtful arguments against certification of the class and approval of this settlement. They aim to ensure that the claims of retired players are not given up in exchange for anything less than a generous settlement agreement negotiated by very able representatives. But they risk making the perfect the enemy of the good. This settlement will provide nearly $1 billion in value to the class of retired players. It is a testament to the players, researchers, and advocates who have worked to expose the true human costs of a sport so many love. Though not perfect, it is fair. In sum, we affirm because we are satisfied that the District Court ably exercised its discretion in certifying the class and approving the settlement.”

The Department of Industrial Relations has issued a report that shows the number of Californians who died on the job decreased in 2014. A review of the past ten years indicates that workplace fatalities remain below the average rate of fatalities prior to 2008, when the last recession began.

Data comes from the Census of Fatal Occupational Injuries (CFOI) which is conducted annually in conjunction with the U.S. Bureau of Labor Statistics (BLS). There were 344 fatal injuries on the job in California in 2014, compared to 396 in 2013 and 375 in 2012. Key findings from the latest census in California include:

1) Over one third (35%) of all California workplace deaths identified in 2014 occurred in transportation incidents.
2) One in five (22%) of all California workplace deaths identified in 2014 were attributed to violent acts.
3) One in five (21%) of all California workplace deaths identified in 2014 were attributed to trips, slips and falls.
4) Fatal workplace injuries among Latino workers in 2014 decreased to 130 (38% of all worker deaths) from 194 (49%) in 2013, and 137 (37%) in 2012.

The high rate of workplace fatalities for Latinos continues to be an area the department is tracking closely. DIR over the past six years has increased workplace safety outreach and education to Spanish-speaking workers, with a focus on high-hazard work.

A table reflecting final data for 2014 for California is posted online. Detailed tables will be posted as soon as available from Bureau of Labor Statistics (BLS).

The Census is conducted annually by DIR in conjunction with the U.S. Bureau of Labor Statistics. CFOI produces comprehensive, accurate and timely counts of fatal work This Federal-State cooperative program was implemented in all 50 states and the District of Columbia in 1992.

DIR protects and improves the health, safety and economic well-being of over 18 million wage earners, and helps their employers comply with state labor laws. Its Division of Occupational Safety and Health, commonly known as Cal/OSHA, helps protect workers from health and safety hazards on the job in almost every workplace in California. Cal/OSHA does not have authority when injuries occur on public roadways.

Cal/OSHA’s Consultation Services Branch provides free and voluntary assistance to employers and employee organizations to improve their health and safety programs. Employers should call (800) 963-9424 for assistance from Cal/OSHA Consultation Services.

Employees with work-related questions or complaints may contact DIR’s Call Center in English or Spanish at 844-LABOR-DIR (844-522-6734). The California Workers’ Information line at 866-924-9757 provides recorded information in English and Spanish on a variety of work-related topics. Complaints can also be filed confidentially with Cal/OSHA district offices.

The Division of Workers’ Compensation has posted on its website fact sheets and claim forms for injured workers in Chinese, Korean, Tagalog and Vietnamese. The documents were previously only available in English and Spanish.

The fact sheets include questions and answers regarding temporary and permanent disability, qualified medical evaluators and agreed medical evaluators, utilization review, and the Uninsured Employers Benefits Trust Fund. The DWC 1 claim form, which workers file with employers, has also been translated.

The translations were produced pursuant to AB 438, which requires DWC to make available workers’ compensation information in the four specified languages.

The California Dymally-Alatorre Bilingual Services Act, which was enacted in 1973, requires that all state agencies translate materials into any language spoken by 5 percent or more of those served and hire bilingual staff. Previously, the Labor Code mandated that some of the worker’s compensation forms be prepared in English and Spanish, and was silent as to any other language. The obligation of the DWC was clarified by AB 438 which provides that both the DWC and the DIR shall be subject to the Dymally-Alatorre Bilingual Services Act, for purposes of the forms and notices that are required to be provided to injured workers. The new law required the Department of Industrial Relations and the Division of Workers’ Compensation to make specified forms, notices, and fact sheets available in Chinese, Tagalog, Korean, and Vietnamese. The bill also required the Administrative Director to make recommendations regarding any other documents that should be translated into languages other than English, as specified, and require the department and the division to submit the recommendations and any translated documents to the Legislature.

DWC began translating materials before the AB 438 January 2018 deadline required by the bill, and additional materials are in progress. Among them are the application for the Return-to-Work Supplement Program, the Supplemental Job Displacement Non-Transferable Voucher and a glossary of terms relevant to workers’ compensation.

The translated forms and guides can be found on DWC’s website.

A suspected smuggler’s recent attempt to bring hundreds of counterfeit oxycodone pills through the Otay Mesa Port of Entry has raised serious concerns among law enforcement officials because the pills turned out to be ultra-deadly fentanyl.

In Sacramento, California, there have been dozens of overdoses and at least 11 deaths in which individuals believed they were consuming the prescription painkiller Norco, which contains hydrocodone and acetaminophen. Instead these counterfeit tablets contained fentanyl. The Sacramento County Department of Health and Human Services has urged individuals to refrain from taking prescription-type pills that are not prescribed and obtained from one’s own doctor.

The seizure is believed to be the first time that federal officials along the California-Mexico border have intercepted counterfeit oxycodone tablets containing fentanyl as they were being smuggled from Mexico into the United States.

In federal court in San Diego, defendant Sergio Linyuntang Mendoza Bohon of Tijuana, Mexico, was arraigned on a charge that he unlawfully imported a controlled substance. According to a charging document, Bohon attempted to smuggle 1,183 tablets of fentanyl that were labeled as oxycodone, and 5.4 grams of powdered fentanyl.

According to court records, on February 10, 2016, defendant Mendoza Bohon entered the United States at the Otay Mesa Port of Entry as a pedestrian. During the primary inspection, a Customs and Border Patrol Officer observed an unnatural looking bulge on the defendant and he was referred to secondary inspection, where Customs and Border Protection officers found the tablets labeled as oxycodone concealed in his underwear.

During his post-arrest statement, defendant Bohon admitted that he knew that the tablets were “oxy” [oxycodone] and that he was attempting to smuggle the oxycodone into the United States. However, the Drug Enforcement Administration Laboratory confirmed that the pills contained fentanyl and not oxycodone.

“Unsuspecting individuals who illegally purchase oxycodone could potentially die from the ingestion of what turns out to be fentanyl tablets,” said U.S. Attorney Laura Duffy. “We are very concerned that these counterfeit pills could cause serious harm to users. Even miniscule amounts of fentanyl can have devastating consequences for those who abuse it or literally even touch it.”

Last year, the Drug Enforcement Administration released a nationwide public health alert on Fentanyl, a Schedule II synthetic opioid painkiller. Fentanyl and Fentanyl analogues produced in clandestine laboratories can be 100 times more potent than morphine. The drug and its analogues are being produced to a large extent in China. DEA investigations reveal that the Mexican drug cartels, including Sinaloa, are purchasing fentanyl directly from China and producing fentanyl from precursors sourced from China.

In some parts of the country, heroin is being spiked with fentanyl or being replaced by fentanyl. There are a number of reasons why, but it mainly comes down to economics. Fentanyl generates greater profits than heroin.

This case is being investigated by the San Diego Pharmaceutical Task Force, a group formed in 2012. Members include agents from DEA, HSI, the California Department of Justice, Bureau of Investigation, the San Diego Sheriff’s Department, and the United States Attorney’s Office.

Worker’s compensation medical care in California is based upon “evidence based medicine” or EBM. This is an approach to medical practice intended to optimize decision-making by emphasizing the use of evidence from well designed and conducted research. EBM is regarded as the gold standard of clinical practice.

But, scientific integrity took another hit last month when an Australian researcher received a two-year suspended sentence after pleading guilty to 17 fraud-related charges. According to the story in the Washington Post, the main counts against neuroscientist Bruce Murdoch were for an article heralding a breakthrough in the treatment of Parkinson’s disease. And the judge’s conclusions were damning. There was no evidence, she declared, that Murdoch had even conducted the clinical trial on which his supposed findings were based. Plus, Murdoch forged consent forms for study participants, one of whom was dead at the time the alleged took place. Plus, Murdoch fraudulently accepted public and private research money for the bogus study, published in 2011 in the highly reputable European Journal of Neurology.

While criminal cases against scientists are rare, they are increasing. Jail time is even rarer, but not unheard of. Last July, Dong-Pyou Han, a former biomedical scientist at Iowa State University, pleaded guilty to two felony charges of making false statements to obtain NIH research grants and was sentenced to more than four years in prison. Han admitted to falsifying the results of several vaccine experiments, in some cases spiking blood samples from rabbits with human HIV antibodies so that the animals appeared to develop an immunity to the virus.

In 2006, Eric Poehlman, an expert on aging and obesity at the University of Vermont, became the first American scientist sentenced to jail for research misconduct not involving fatalities. He received a one-year plus one-day prison term for fraudulent obesity research that, stunningly, spanned a decade.

Four years later, Scott Reuben, a prominent Massachusetts anesthesiologist and researcher, was found to have faked data in at least 21 studies. Several of them touted positive results from popular painkiller medications. Reuben received six months in prison.

Between 2004 and 2005, Professor Hwang Woo-Suk, a highly regarded, highly funded South Korean researcher at Seoul National University, achieved international fame for his work on embryonic stem cells His reputation quickly unraveled and his research activities were halted when his success in somatic cell nuclear transfer (SCNT) became mired in scandal, particularly when it emerged that many of his data on SCNT were fabricated.

The blog Retraction Watch, run by the Center for Scientific Integrity, does keep an unofficial list of the worst offenders. Of the top-30 — 28 of them are male — by far the most retractions belong to Yoshitaka Fujii, with a mind-blowing 183. An anesthesiologist, formerly of Toho University in Tokyo, Fujii’s fraudulent research on responses to drugs after surgery, spanned 20 years.

And then there is the problem of the “replication crisis” in science. Reproducibility is the ability of an entire experiment or study to be duplicated, either by the same researcher or by someone else working independently. Reproducing an experiment is called replicating it. Reproducibility is one of the main principles of the scientific method.

A recent article in the Economist pointed out that “a rule of thumb among biotechnology venture-capitalists is that half of published research cannot be replicated. Even that may be optimistic. Last year researchers at one biotech firm, Amgen, found they could reproduce just six of 53 “landmark” studies in cancer research. Earlier, a group at Bayer, a drug company, managed to repeat just a quarter of 67 similarly important papers.”

Failures to prove a hypothesis are rarely even offered for publication, let alone accepted. “Negative results” now account for only 14% of published papers, down from 30% in 1990. Yet knowing what is false is as important to science as knowing what is true.