Author: WorkCompAcademy

California is poised to protect people who work in poorly ventilated warehouses, steamy restaurant kitchens, and other indoor job sites where temperatures can soar to potentially dangerous levels. According to the report by KFF Health News, the state has had heat standards on the books for outdoor workers since 2005, and indoor workplaces are next.

If California adopts its proposal in the spring, businesses would be required to cool worksites below 87 degrees Fahrenheit when employees are present and below 82 degrees in places where workers wear protective clothing or are exposed to radiant heat, such as furnaces. If businesses are unable to lower the temperatures, they must provide workers with water, breaks, areas where they can cool down, cooling vests, or other means to keep employees from overheating.

Only two other states, Minnesota and Oregon, have adopted heat rules for indoor workers, according to the U.S. Occupational Safety and Health Administration. Nationally, legislation has stalled in Congress, and even though the Biden administration has initiated the long process of establishing national heat standards for outdoor and indoor work, the rules are likely to take years to finalize.

Neither workers nor businesses are satisfied with the plan. Some businesses fear they won’t be able to meet the requirements, even with the flexibility the regulation offers. Workers argue buildings should be kept even cooler.

Although most instances of heat-related illness are relatively minor, severe cases can result in serious injuries and even fatalities. In California, 20 workers died from heat between 2010 and 2017, seven of them because of indoor heat, according to a 2021 study by the Rand Corp., which analyzed the state’s proposed indoor heat rules.

After a record-breaking heat wave in the Pacific Northwest in 2021, Oregon in 2022 adopted protections for indoor workers that trigger when temperatures hit 80 degrees. Minnesota’s threshold temperatures range from 77 degrees to 86 degrees, depending on the type of work. The sheer size of California’s workforce, estimated at about 18 million, could usher in changes for the rest of country, said Juanita Constible, senior climate and health advocate at the Natural Resources Defense Council.

California regulators have crafted the indoor rules to complement the state’s protections for outdoor workers. Those say that when temperatures exceed 80 degrees, employers must provide shade and observe workers for signs of heat illness. At or above 95 degrees, they must come up with ways to prevent heat illness, such as reducing work hours or providing additional breaks.

The California Occupational Safety and Standards Board, which is charged with setting worker protections, is weighing the regulation that would require employers to cool their buildings with air conditioning, fans, misters, and other methods when the temperature or the heat index hits 82 or 87. Some employees would be exempt from the rule, including employees who work remotely and those involved in emergency operations.

On May 18, 2023, the Board held a Public Hearing to consider the addition of new section 3396 to the General Industry Safety Orders of title 8. The Board received oral and written comments on the proposed revisions. On August 4, 2023, another 15-Day Notice was issued. This second 15-Day Notice was a result of further comments from stakeholders and added Board staff consideration. The most recent comment period was closed on November 28, 2023.

The board is expected to vote on the rules in March, and they would take effect by this summer, board Chief Counsel Autumn Gonzalez said.

UCLA has acquired the former Westside Pavilion shopping mall, which the university will transform into the UCLA Research Park – bringing together scholars and industry experts from around the world to create a nexus for discovery and innovation that will benefit Southern California and beyond. The 700,000-square-foot property, located 2 miles south of the Westwood campus, will initially host two multidisciplinary research centers: the California Institute for Immunology and Immunotherapy at UCLA and the UCLA Center for Quantum Science and Engineering.

The vast new space, which straddles the southeast and southwest corners of Pico Boulevard and is connected by an enclosed pedestrian bridge over Westwood Boulevard, features a broad metal and glass facade and open areas with 17-foot ceilings, panoramic windows and expansive atriums inside and out. In addition to research labs and offices, the property has the potential for additional uses, including classrooms, lecture halls and event venues.

A fixture of West Los Angeles since its opening in 1985, the Westside Pavilion quickly became a much-visited retail location and gathering spot and continued to evolve over the following three decades. At one time, the site featured a three-level bookstore and multiple movie theaters and appeared as a backdrop to numerous movies and TV shows. Over the past decade, it suffered from a decline alongside other indoor malls across the country, leaving storefronts largely empty.

The new UCLA Research Park is made possible in part by an intended $500 million investment, with $200 million already allocated, from the state of California to establish and fund the immunology and immunotherapy institute at UCLA. The institute is also supported by a group of founding donors from the biotechnology, academic, entrepreneurship and philanthropic communities led by Meyer Luskin, Dr. Gary Michelson, Dr. Eric Esrailian, Dr. Arie Belldegrun, Sean Parker and Michael Milken.

In addition, Google – which previously leased part of the property – helped enable and support UCLA’s acquisition. Favorable real estate market conditions helped create the historic opportunity for the university as well.

“The California Institute for Immunology and Immunotherapy has the potential to reshape the future of science and medicine,” said the institute’s founding donors. “We are proud to join UCLA, UC President Drake, Gov. Newsom and the state Legislature in helping make California a world leader in decoding the still-mysterious workings of the human immune system and translating breakthrough discoveries into lifesaving immunotherapies. Launching a research park that joins biosciences with quantum science and engineering – as well as other emerging technologies, like next-generation artificial intelligence – is a once-in-a-generation event, and we are honored to be a part of it all.”

The acquisition caps a multiyear effort by Dr. John Mazziotta, vice chancellor for health sciences and CEO of UCLA Health, to establish the institute at UCLA and provide it with leading-edge facilities.

“UCLA’s goal is to build the immunology equivalent of Silicon Valley in Los Angeles,” said Mazziotta. “Given the university’s expertise and state-of-the-art facilities, we are expecting to attract the world’s best scientists in immunology and immunotherapy, as well as top students.”

The institute will draw on the expertise of UCLA faculty members, scholars from different higher education institutions, and other leading scientists and practitioners in clinical and biomedical scientific research, including human genetics, genomics, computer science, engineering and information science. Researchers will pursue new tools, treatments and vaccines for cancer, autoimmune and immune deficiency disorders, infectious diseases, allergies, heart conditions, solid organ transplantation and other major health-related issues.

The UCLA Research Park will also be home to the UCLA Center for Quantum Science and Engineering, which conducts research in the emerging field of quantum science and technology – including quantum computing, communication and sensing – with the aim of dramatically increasing information processing power by harnessing the unusual behavior of subatomic particles.

This latest major acquisition – UCLA’s third in the past 15 months – is part of a transformative expansion designed to broadly extend UCLA’s top-flight resources and institutional expertise, deepen the campus’ connections to Los Angeles’ diverse and dynamic communities, and meet the growing demand for top-tier higher education across the city and region. Each acquisition has been an adaptive and sustainable development, repurposing existing structures for new uses while avoiding the need for major construction.

In June of this year, UCLA bridged the gap between Westwood and downtown Los Angeles with its purchase of UCLA Downtown, a 334,000-square-foot building in downtown’s Historic Core.

And in September 2022, the university acquired its UCLA South Bay campus, including the 24.5 acres of the former Marymount California University campus in Rancho Palos Verdes and an 11-acre residential site in San Pedro — allowing UCLA to expand its offerings, serve more students and advance the University of California’s 2030 systemwide goals.

The Labor Code provides in essence that persons employed by the owner or occupant of a residential dwelling are generally not considered employees for purposes of workers’ compensation and therefore not entitled to benefits if they work less than 52 hours, or who earned less than $100 in wages for an employer, during the period of 90-calendar days prior to the date of the alleged injury.

Those who exceed those limits are employees of the owner or occupant, and a number of cases in the worker’s compensation literature illustrate examples, such as in Fichera and Allstate Ins. Co. v. W.C.A.B. (May) (1981) 46 Cal.Comp.Cases 26 (Writ Denied), the Board held that an injured house and animal sitter was included within the definition of an employee even though she had only worked 38 hours before sustaining an injury where the Board found that the contract of employment provided for more than 52 hours of work per week.

To assist homeowners in securing coverage for workers’ compensation liability, the legislature passed Insurance Code section 11590 in 1977 which provided that no policy providing comprehensive personal liability insurance may be issued or renewed in this state on or after January 1, 1977, unless it contains a provision for coverage against liability for the payment of workers compensation, as defined in Section 3207 of the Labor Code, to any person defined as an employee by subdivision (d) of Section 3351 of the Labor Code.

Any such policy in effect on or after January 1, 1977, whether or not actually containing such provisions, shall be construed as if such provisions were embodied therein. However, such coverage shall not apply if any other existing, valid and collectible, workers’ compensation insurance for such liability is applicable to the injury or death of such employee.

Homeowners’ insurance policies in California are the method by which owners and occupants of residential properties secure coverage for industrial injuries. But not all homeowners are able to purchase homeowner policies if they live in areas where they are near the risk of forest fires or other catastrophes such as flooding. In response to insurers’ reluctance to write basic property insurance for homeowners who live in high risk or otherwise uninsurable areas, in 1968, the California Legislature enacted the “Basic Property Insurance Inspection and Placement Plan.”

The 1968 law provides for the ‘the equitable distribution among admitted insurers of the responsibility for insuring qualified property for which basic property insurance cannot be obtained through the normal insurance market by the establishment of a FAIR Plan, an industry placement facility and a joint reinsurance association.The FAIR plan provided for coverage of the property only, and did not provide for general liability or workers compensation coverage for the homeowner.

Since 1968 the difficulty for homeowners in California to obtain homeowner insurance has substantially increased. Allstate, Farmers, and USAA, have either completely stopped writing new policies or significantly limited their activity in California. Additionally, four smaller insurers: Merastar, Unitrin Auto and Home, and Unitrin Direct Property and Casualty, have announced they will not renew existing policies in California starting in 2024.

On November 14, 2019, the Insurance Commissioner issued Order No. 2019-2, which required the FAIR Plan to submit a new revised plan of operation to effectuate various business operational changes to the FAIR Plan, including requiring the FAIR Plan to sell HO-3 policies in California. An HO-3 policy is a homeowner’s insurance policy and refers to the name of the standardized insurance form issued by the Insurance Services Office, Inc.

On December 13, 2019, FAIR Plan filed a petition for writ of mandate in California Fair Plan Association v. Lara, case number 19STCP05434, challenging Order No. 2019-2. On December 19, 2019, the Commissioner issued Order No. 2019-3, in which the Commissioner promulgated his own revised plan of operation to be followed by FAIR Plan to effectuate the aforementioned business operational changes.On August 19, 2021, the Court entered its judgment granting in part and denying in part the writ petition, directing the Commissioner to set aside those parts of Order Nos. 2019-2 and 2019-3 that require the FAIR Plan to offer a comprehensive HO-3 Policy.

In response, on September 17, 2021, the Commissioner issued Order No. 2021-2, which requires FAIR Plan to offer a “Homeowners’ Policy” that “insures against, at a minimum, the following perils to the insured property not currently covered under the FAIR Plan’s dwelling fire policy: accidental discharge or overflow of water or steam; premises liability; incidental workers’ compensation; theft; falling objects; weight of ice, snow, or sleet; freezing; and loss of use, including coverage for additional living expenses and fair rental value.”

On October 14, 2021, the Fair Plan Association filed another petition seeking to nullify Order No. 2021-2. On November 27, 2023 the Superior Court of the County of Los Angeles denied the Petition for Writ of Mandate in case 21STCV38060. Thus, currently Order No. 2021-2 (as amended) remains in effect. Homeowners who are unable to obtain homeowners insurance will at least be offered a policy with workers compensation and general liability insurance under the FAIR plan, although the coverage is not the equivalent of an HO-3 policy.

In his latest newsletter, Bill Zachary reported on “Kinesiophobia” and how well it explained some of the barriers that injured workers face during their journey to recovery from work-related injuries. The path to recovery and return to work for injured workers is fraught with challenges, and one significant obstacle is kinesiophobia – the fear of movement and physical activity due to the anticipation of pain and, particularly, the fear of reinjury.

Kinesiophobia is not only a significant barrier to optimum recovery, but it’s also one of the major obstacles preventing injured workers from returning to their jobs. It is crucial to identify when Kinesiophobia is impacting recovery and return to work and to take the necessary steps to overcome these barriers. Here are some important facts about kinesiophobia:

Discomfort (also known as pain) plays a crucial role in learning and recovery. For instance, sticking one’s finger in a pot of scalding hot oil quickly teaches the importance of avoiding such actions. However, in the context of physical therapy and rehabilitation, a certain degree of discomfort may be necessary to stretch and strengthen tissue and regain an optimum range of motion. Acknowledging the distinction between harmful pain and therapeutic discomfort is vital in addressing kinesiophobia and achieving successful recovery and return to work.

Pain is a subjective experience. What one individual perceives as excruciating and unmanageable, another may consider uncomfortable but manageable. After an intense workout in the gym, some may find muscle discomfort to be a positive experience (proof of exercising) rather than a negative one. Personal perception of pain can significantly impact treatment and recovery. Recognizing that pain tolerance varies among individuals, it’s essential to tailor rehabilitation approaches to consider each worker’s pain threshold when developing treatment programs. Physicians and therapists who are not aware of these issues may find that surgery, other treatments, and physical therapy fail when not acknowledging and understanding issues like Kinesiophobia.

Sometimes, the anticipation of pain can be more daunting for injured workers than the actual pain they will experience. Each of us brings our unique life experiences and beliefs to the experience of pain.  Part of a Physical Therapist’s job is to manage the anticipatory fears of patients and have them perform required movements at a controlled intensity.  Once the patient experiences this minor pain, the fear diminishes.

Human memory has a fascinating way of moderating our perception of pain. I have little accurate memory of how severe the pain was after my shoulder surgery. I remember that I was “uncomfortable” but do not really remember the severity of the pain in the immediate days following the surgery. You may also reflect on not remembering the severity of the pain after a broken bone or even a stubbed toe. The phrase “Time heals all wounds” can be applied to most people who have had severe pain. Their perception of the pain severity fades over time.  Repeated instances of minor pain during home exercises will aid the change in perception from daunting pain to mere discomfort.  Digital health, such as Plethy’s Recupe app, are excellent at encouraging exercise adherence, thus creating these memories of minor discomfort.

Kinesiophobia is best treated by first recognizing its existence. One of the most common tools for diagnosing and evaluating the level of kinesiophobia is the Tampa Scale of Kinesiophobia (TSK), consisting of 17 self-reporting questions that assess levels of fear, pain catastrophizing, and disability.

It is important to note that despite the fear of physical activity, physical activity can also be a form of treatment (and often is the best treatment that will facilitate full recovery). There are specific strategies or techniques to help individuals manage the anticipation of pain effectively.

Kinesiophobia can be treated through a multidisciplinary approach, involving a rehabilitation physician, a psychologist, and a physical therapist.

The focus of most treatment includes counseling, reassurance, education, relaxation training, mirror therapy, and small incremental steps in treatment.  Proven treatment includes mindfulness exercises, cognitive-behavioral techniques, medication for anxiety and limited low-dose analgesics.  Active care activities, such as exercises in the home and clinic, are also key to reducing this fear through exposure.  Here, adherence is key, especially with home exercises as the patient will spend far more time at home than in the clinic.  Thus, Recupe and other digital health show great promise towards the treatment of kinesiophobia.

In concluding his article Mr. Zachary said “It is essential for claims professionals to engage in identifying potential cases and intervene to overcome the barriers.  If an injured worker refuses to return to light or modified duties, determining the underlying reasons, such as the fear of reinjury, is crucial. Providing this information to the doctor and supporting the appropriate clinic and home treatment can facilitate a more comprehensive approach to rehabilitation and recovery.”

Moses Luna has been practicing workers’ compensation law in California for roughly half a century. On May 12, 2021, the district attorney charged him in an amended complaint with 22 counts of felony insurance fraud pursuant to Penal Code section 550, subdivision (b)(3) (Penal Code section 550(b)(3)).

At the preliminary hearing, the district attorney presented evidence Luna opened a side business called Adelante Interpreters in 2011. Although Luna controlled and ran the business, he did not mention that on the incorporation papers. Instead, he listed his daughters as its acting officers. When Luna’s legal clients needed interpreter services in connection with their workers’ compensation claims, he invariably enlisted Adelante for those services. Adelante then made insurance claims for the cost of those services. All told, it received payments totaling over $100,000 from 22 different insurance carriers between 2016 and 2020. The parties stipulated those benefits would not have been paid had the carriers known of Luna’s interest in Adelante. He was bound over for trial at the conclusion of the preliminary hearing.

Luna filed a Penal Code section 995 motion to dismiss the information. Luna argued the Williamson rule barred his felony prosecution under Penal Code section 550(b)(3) because his alleged misconduct is specifically addressed in Labor Code section 139.32, which, inter alia, makes it a misdemeanor for workers’ compensation attorneys to refer clients to a business in which they have a financial interest. Luna also argued dismissal was warranted because section 139.32 is unconstitutionally vague, and his conduct falls within the safe harbor provisions of the statute.

The trial court concluded the Williamson rule precluded Luna’s felony prosecution under Penal Code section 550(b)(3). Although Luna prevailed on that issue, the trial court rejected his vagueness argument, and it found his safe harbor argument premature because it presented factual issues that needed to be fleshed out at trial. The court then amended the information by interlineation to change all 22 of the felony charges to misdemeanors under section 139.32. However, upon reconsideration, and at the parties’ request, the court vacated its amendments and dismissed the information altogether.

The Court of Appeal affirmed the trial court dismissal in the unpublished case of People v Luna -G062297 (December 2023).

This appeal turns on the applicability of the Williamson rule, which precludes criminal prosecution under a general statute if there is a more specific statute that applies to the defendant’s conduct. (In re Williamson (1954) 43 Cal.2d 651 (Williamson).)

Generally, when the defendant’s conduct violates more than one statute, prosecutors have the discretion to decide which statute to charge under. However, that discretion is not unlimited. Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute. In effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be prosecuted under either statute.

The general statute at issue here is Penal Code section 550(b)(3), which makes it unlawful for any person to “[c]onceal, or knowingly fail to disclose the occurrence of, an event that affects any person’s initial or continued right or entitlement to any insurance benefit or payment, or the amount of any benefit or payment to which the person is entitled.”

The special statute at issue is Labor Code section 139.32. Under subdivision (b) of the statute, all interested parties in the workers’ compensation system, including attorneys representing injured employees, are required to disclose any financial interest they have in an entity that provides services to an employee.

Thus “the rule precludes the prosecution from charging Luna pursuant to Penal Code section 550(b)(3) because his culpability under that general statute hinges on whether he violated section 139.32, a special statute which fits Luna’s alleged misconduct to a tee.“

Since it was expected the prosecution will charge Luna with violating section 139.32 the Court of Appeal addressed his arguments respecting that prospect. To satisfy due process, a statute must give fair notice of the conduct proscribed and be sufficiently definite to prevent arbitrary and discriminatory enforcement. On the core vagueness question, it agreed with Luna that subdivision (b) of section 139.32 is unconstitutional.

The “statute does not provide any guidance as to whom disclosure must be made. Nor does it shed any light on when or how the requisite disclosure must be proffered. These shortcomings make the disclosure requirement both difficult to obey from a defense perspective, and difficult to enforce from a prosecutorial perspective. Since the requirement is susceptible of multiple interpretations and fails to provide reasonable notice of what it entails, we conclude it is too vague to enforce against Luna in this case.”

While “we strike down subdivision (b) of section 139.32 on vagueness grounds, we see no reason to invalidate the remaining portions of the statute.” “The trial court’s order dismissing the felony charges against Luna is affirmed. If the district attorney files misdemeanor charges against Luna under section 139.32, he cannot rely on subdivision (b) of the statute, which is void for vagueness.”