Author: WorkCompAcademy

UC Davis Comprehensive Cancer Center researcher Shehnaz K. Hussain Ph.D., Sc.M. has received a $1.9 million California climate action grant to lead a study into the cancer risks facing firefighters as they battle wildfires.

The grant is funded through a partnership between the University of California and the state of California, which awarded over $80 million in research grants to help put solutions in place that directly address state climate priorities. A total of four UC Davis climate action grants were awarded.

Dr. Hussain’s research, “Exposure Assessment, Health Monitoring, and Cancer Control in Wildland Firefighters” will examine the main carcinogens and cancer risk factors for firefighters as the number of wildfires escalates with climate change.

“California’s firefighters are a climate-vulnerable group due to their heavy burden of occupational exposures related to the increased frequency and scale of wildland fires. The fires are also burning into urban areas where there are many more chemicals and other potential carcinogens that threaten the health of firefighters,” said Hussain, who is also a professor of Public Health Sciences at UC Davis.

Cancer is the leading cause of death among firefighters.

Dr. Hussain said the research will identify areas where equipment, technology, protocols, education, programs, and policy can be developed or amended to reduce exposures to carcinogens, mitigate cancer risks, and improve early detection of cancer in California’s firefighters.

One aim of this research is to capture and test carcinogenic chemicals and other compounds found in wildfire emissions. The team will also study a large group of firefighters to identify biomarkers and occupational and behavioral cancer risk factors that could be reduced in the future. Another objective is to produce stories about California firefighters dealing with cancer. Researchers plan to evaluate the ability of this peer-to-peer storytelling to enhance best practices for cancer prevention in firefighters.

Dr. Hussain will lead a team of biochemical, engineering, microbiology, environmental and occupational scientists on the research initiative. The team will include co-lead Derek Urwin, assistant adjunct professor of chemistry and biochemistry at UCLA and a career firefighter. Other members of the research team include UC Davis colleagues Sheri Belafsky, Cristina Davis, Janine LaSalle, Irva Hertz-Picciotto and Thomas Young.

The California Climate Action Seed Grants and Matching Grants will fund 38 projects that collectively involve more than 130 community, industry, tribal, and public agencies, as well as 12 University of California locations, 11 California State University campuses and two private universities.

Seed grants were awarded to 34 teams totaling $56.2 million. Four teams received matching grants totaling $26.9 million to support larger projects that could leverage additional funding from non-state sources. The $83.l million total is part of $185 million allocated by the state for UC climate initiatives advancing progress toward California’s climate goals.

CapRadio sat down with Dr. Hussain to learn a little more about her plans and how this research might help us better understand the impacts of smoke on Californians as a whole. It’s interview is available online.

The Federal Trade Commission reached a proposed consent order with Amgen Inc. to address the potential competitive harm that would result from Amgen’s $27.8 billion acquisition of Horizon Therapeutics plc. As part of a nationwide settlement of their challenge to the acquisition, the FTC and attorneys general from six states – California, Illinois, Minnesota, New York, Washington, and Wisconsin – also will dismiss the related federal court preliminary injunction action.

The California Attorney General also announced his agreement with this settlement characterizing this as “a groundbreaking settlement with Amgen, one of the world’s largest biopharmaceutical drug companies.” “The lawsuit was the FTC’s first ever challenge of a pharmaceutical merger.”

Under the proposed order, Amgen is prohibited from bundling an Amgen product with either Tepezza or Krystexxa, Horizon’s medications used to treat thyroid eye disease (TED) and chronic refractory gout (CRG), respectively. In addition, Amgen may not condition any product rebate or contract terms related to an Amgen product on the sale or positioning either one of these drugs. Amgen also is barred from using any product rebate or contract term to exclude or disadvantage any product that would compete with Tepezza or Krystexxa.

The proposed consent order resolves FTC and state charges that Amgen’s acquisition of Horizon is anticompetitive, as the deal would enable Amgen to leverage its large portfolio of blockbuster drugs to pressure insurance companies and pharmacy benefit managers into favoring Horizon’s two monopoly products – Tepezza and Krystexxa – or disadvantaging rivals to Tepezza or Krystexxa.

The proposed order also will prohibit Amgen from entering into any agreement or understanding to acquire any products or interest in any business engaged in the manufacturing or sale of any products, biosimilars, or therapeutic equivalents that treat either TED or CRG, unless it receives prior approval from the Commission.

Additionally, Amgen must seek FTC approval if it seeks to acquire any pre-commercial products that have completed FDA clinical trials to treat either thyroid eye disease or chronic refractory gout. Under the terms of the consent order, Amgen is required seek FTC such prior approval through 2032 and notify the states if it is seeking Commission approval.

All other requirements in the consent order will be effective for 15 years after it is finalized, including a requirement that Amgen submit annual compliance reports to the FTC and states. A monitor will be appointed to oversee Amgen’s compliance, and the monitor’s reports will likewise be submitted to the Commission and to the states.

The FTC’s proposed consent order, among other conditions, also requires that Amgen:

– – Submit to the monitor all contracts with payers related to the formulary coverage, placement, or positioning of Krystexxa or Tepezza in the United States within 30 days of entering into such contract.

– – Notify the monitor if either Krystexxa or Tepezza meets all three of the following conditions: 1) Krystexxa or Tepezza has been approved by the FDA for patient self-administration; 2) the self-administered version of Krystexxa or Tepezza is available on the market; and 3) the self-administered version of Krystexxa or Tepezza is otherwise eligible to be covered as a pharmacy benefit product.

– – Require, annually, that all Amgen employees with direct involvement in contracting or negotiations with payers related to the purchase, coverage, placement, or positioning of Krystexxa or Tepezza in the United States to review the consent order acknowledge in writing (including by email) that they understand and are complying with the obligations of the order.

In May 2023, the FTC filed a complaint in the U.S. District Court for the Northern District of Illinois to block the proposed transaction. In addition to alleging that the transaction would give Amgen the ability and incentive to foreclose rivals to Tepezza and Krystexxa, the complaint stated that the deal also would entrench Tepezza’s and Krystexxa’s monopoly positions in the TED and CRG markets, respectively, by substituting Amgen, with its broad and powerful portfolio of blockbuster drugs, for Horizon with its smaller portfolio, thus raising entry barriers and dissuading smaller firms from competing aggressively. This was the FTC’s first litigated challenge to a pharmaceutical merger in more than a decade.

Further details about the proposed order can be found in the analysis to aid public comment.

The Commission vote to accept the proposed consent order for public comment was 3-0, with Chair Lina M. Khan issuing a separate statement, in which she was joined by Commissioner Rebecca Kelly Slaughter and Commissioner Alvaro Bedoya.

The FTC will publish the consent agreement package in the Federal Register shortly. Instructions for filing comments appear in the published notice. Comments must be received 30 days after publication in the Federal Register. Once processed, comments will be posted on Regulations.gov.

When the Covid pandemic struck, the California State University (CSU) directed that instruction be provided remotely. Patrick Krug did so but was denied access to his workplace office to retrieve his CSU-provided computer and printer.To provide such instruction, Krug, a biology professor at CSU-Los Angeles, incurred expenses which CSU refused to reimburse for a computer and other equipment.

CSU took the position that Labor Code section 2802, subdivision (a), which obligates an employer to “indemnify [an] employee for all necessary expenditures . . . incurred . . . in direct consequence of the discharge of his or her duties,” did not apply to the school because such application would infringe on its sovereign powers as a department of the state.

Krug asked the Department of Industrial Relations (DLSE) whether the school’s non-reimbursement policy was lawful. The DLSE responded that it disagreed with CSU’s interpretation of section 2802.

Krug filed this class action complaint, alleging a single claim for reimbursement of home-office expenses for himself and other CSU faculty employees under section 2802. He later amended to add a claim under the Private Attorneys General Act (PAGA) stemming from the same reimbursement violation. He alleged he incurred necessary business expenses for electricity, postage, internet service charges, use of personal phones for work-related purposes, office supplies, chairs, computers, printers, ink and toner, and computer monitors required to perform his work.

CSU demurred, arguing that as a department of the state it enjoys broad exemption from Labor Code provisions that infringe on its sovereign powers. Krug appeals from a judgment of dismissal entered after the trial court sustained CSU’s demurrer without leave to amend.

The Court of Appeal affirmed the trial court in the Published case of Krug v. Board of Trustees of the Cal. State Univ – B320588 (August 2023).

On appeal, Krug contends that section 2802 applies to CSU.

“A traditional rule of statutory construction is that, absent express words to the contrary, governmental agencies are not included within the general words of a statute.” (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1192.

Thus, the Labor Code applies only to private sector employees unless a Labor Code provision is “specifically made applicable to public employees.” (Campbell v. Regents of Univ. of California (2005) 35 Cal.4th 311, 330; California Correctional Peace Officers’ Association v. State of California (2010) 188 Cal.App.4th 646, 652-653; Nutter v. City of Santa Monica (1946) 74 Cal.App.2d 292, 301.)

Specifically in the context of reimbursement for work expenses (uniform costs), section 2802 does not apply to counties, cities, or the state. (In re Work Uniform Cases (2005) 133 Cal.App.4th 328, 332, 339, 345.)

But this maxim of construction excludes governmental agencies from the operation of general statutory provisions only if their inclusion would result in an infringement upon sovereign governmental powers.  “Where . . . no impairment of sovereign powers would result, the reason underlying this rule of construction ceases to exist and the Legislature may properly be held to have intended that the statute apply to governmental bodies even though it used general statutory language only.” (Regents of University of Cal. v. Superior Court of Alameda County (1976) 17 Cal.3d 533, 536 (Regents).

Although the “sovereign powers” principle can help resolve an unclear legislative intent, it cannot override positive indicia of a contrary legislative intent. (Wells, supra, 39 Cal.4th at p. 1193.)

The Court of Appeal applied a three-part test. First, look for “express words” referring to governmental agencies. If there are none,look for “positive indicia” of a legislative intent to exempt such agencies from the statute. If no such indicia appear, ask whether applying the statute would result in an infringement upon sovereign governmental powers.

Here Education Code section 89036 authorizes CSU to enter agreements and prescribe policies and procedures for acquiring supplies and equipment. Education Code section 89500 authorizes CSU to address matters of employee allowances and expense reimbursement. “[T]here can be no doubt that public education is among the state’s most basic sovereign powers.” (Wells, supra, 39 Cal.4th at p. 1195.)

Thus, the Court of Appeal concluded that the “expenses Krug alleges – for computers, monitors, chairs, printers, electricity, internet, and other alleged business expenses – fall directly within CSU’s authority to set rules for employee equipment allowances and the purchase of materials, supplies, and equipment.”

Grace Nunes sustained two admitted industrial injuries while employed by the State of California, Department of Motor Vehicles. In Case No. ADJ8210063, she sustained injury to her neck, upper extremities, and left shoulder, on September 13, 2011. In Case No. ADJ8621818, she sustained injury to her bilateral upper extremities from September 13, 2010 to September 13, 2011.

After being evaluated by various physicians some of whom apportioned permanent disability,her vocational expert addressed apportionment by claiming that “from a vocational standpoint, Ms. Nunes’ preexisting/non-industrial degenerative condition had zero impact to her earning capacitygiven applicant’s work history.”

Her vocational expert went on to say that “Ms. Nunes’ functional limitations and chronic pain clearly render her 100 percent permanently and totally disabled.Without question, vocational apportionment in Ms. Nunes’ case is 100 percent industrial and attributable to the specific injury of September 13, 2011.”

The WCJ found that applicant is entitled to an unapportioned award of 100 percent industrial disability based on the analysis that “applicant has rebutted the AMA Guides. She’s found to be 100% disabled as there is no evidence of previous loss of earnings capacity.”

On June 22, 2023 the Appeals Board in the en banc decision of Grace Nunes I v State of California, Department of Motor Vehicles rescinded the F&A issued by the WCJ.

It ruled that (1) Labor Code1 section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment, and that the Labor Code makes no statutory provision for “vocational apportionment;” (2) that vocational evidence may be used to address issues relevant to the determination of permanent disability; and (3) that vocational evidence must address apportionment, and may not substitute impermissible “vocational apportionment” in place of otherwise valid medical apportionment.

As an aggrieved party for the first time, Nunes subsequently filed her Petitioned for Reconsideration of the En Banc Opinion and Decision After Reconsideration which was denied on August 29, 2023 in the second En Banc decision of Grace Nunes II v State of California, Department of Motor Vehicles -ADJ8210063 -ADJ8621818 (August 2023).

Applicant contends in her Petition for Reconsideration that the apportionment analysis described by the QME is speculative and not substantial, and that applicant is entitled to an unapportioned award. Applicant further contends that vocational evidence may be used to characterize and quantify permanent disability, and that the vocational opinions expressed by vocational experts may differ from the medical evidence.

Applicant also asserts that the prohibition against using vocational apportionment in place of otherwise valid medical apportionment will result in “pass-through” apportionment that is not substantial evidence; that defendant failed to meet its burden of proof under section 4664; and that our June 22, 2023 Opinion may result in protracted discovery and litigation.

In response the Board concluded that “applicant has not established that our decision to return the matter to the trial level for development of the record and to comply with section 5313 was made in error, which, standing alone, may constitute grounds for denial of the Petition.”

Additionally the Board said “we wish to address the rhetoric used by applicant in the Petition. Applicant contends that the consequences of our decision proscribing “vocational apportionment” will be “disastrous” and will lead to an “implosion of the [workers’ compensation] system. Applicant characterizes our decision as ‘directionless’ and potentially requiring the application of ‘invalid’ medical apportionment, the result of which would be “devastating to the worker’s [sic] compensation environment. Applicant further contends that ‘lawyers’ on both sides may use this case as a sword to distract, delay and obfuscate “

“We find these arguments to be unpersuasive and inflammatory. …. Our Opinion does not require the application of invalid apportionment by the parties or by the WCJ, and in those instances where there is a significant question as to the validity of a physician’s medical apportionment opinion, the vocational expert is free to offer their analysis in the alternative.”

“In summary, reconsideration is inapposite because applicant’s petition offers no challenge to our determination that the current record does not comply with section 5313. We reject applicant’s contention that a vocational expert may substitute a competing theory of apportionment in place of otherwise valid legal apportionment, as inconsistent with statutory and case law authority. We further reject applicant’s contention that evaluating physicians are unwilling or unqualified to evaluate vocational evidence.”

The Justice Department announced the results of a coordinated, nationwide enforcement action to combat COVID-19 fraud, which included 718 enforcement actions – including federal criminal charges against 371 defendants – for offenses related to over $836 million in alleged COVID-19 fraud.

Deputy Attorney General Monaco also announced the launch of two additional COVID-19 Fraud Enforcement Strike Forces: one at the U.S. Attorney’s Office for the District of Colorado, and one at the U.S. Attorney’s Office for the District of New Jersey. These two strike forces add to the three strike forces launched in September 2022 in the Eastern and Central Districts of California, the Southern District of Florida, and the District of Maryland.

Michael C. Galdo, Acting Director of COVID-19 Fraud Enforcement, detailed the results of the three-month coordinated law enforcement action that took place from May through July 2023, which included criminal, civil, and forfeiture actions. More than 50 U.S. Attorneys’ Offices, including the COVID-19 Fraud Enforcement Strike Forces, the Justice Department’s Criminal and Civil Divisions, and more than a dozen law enforcement and OIG partners worked together to conduct the sweep.

Galdo also said that 63 of the defendants had alleged connections to violent crime, including violent gang members also accused of using pandemic funds to pay for a murder for hire. Twenty-five defendants have alleged connections to transnational crime networks.

718 law enforcement actions occurred, including criminal charges, civil charges, forfeitures, guilty pleas, and sentencings, with a combined total actual loss of more than $836 million. Criminal charges were filed against 371 defendants, and 119 defendants pleaded guilty or were convicted at trial during the sweep. Over $57 million in court-ordered restitution was imposed. 117 civil matters occurred during the sweep, with over $10.4 million in judgments. Prosecutors worked with law enforcement to secure forfeiture of over $231.4 million.

Many of the cases in the enforcement action involve charges related to pandemic unemployment insurance benefit fraud and fraud against the two largest pandemic Small Business Administration programs: the Paycheck Protection Program and Economic Injury Disaster Loans. Additional matters involved pandemic healthcare billing fraud, fraud against the Emergency Rental Assistance program, and fraud committed against the IRS Employee Retention Credit program (ERC), a refundable tax credit for businesses and tax-exempt organizations that had employees and were affected during the COVID-19 pandemic. IRS Criminal Investigations (IRS-CI) worked with the California Strike Force and the U.S. Attorney’s Office for the District of New Jersey to bring multimillion dollar ERC fraud cases during the enforcement action.

In May 2021, the Attorney General established the COVID-19 Fraud Enforcement Task Force (CFETF) to marshal the resources of the Department of Justice in partnership with agencies across government to enhance efforts to combat and prevent pandemic-related fraud. The task force bolsters efforts to investigate and prosecute the most culpable domestic and international criminal actors and assists agencies tasked with administering relief programs to prevent fraud by, among other methods, augmenting and incorporating existing coordination mechanisms, identifying resources and techniques to uncover fraudulent actors and their schemes, and sharing and harnessing information and insights gained from prior enforcement efforts.

The cases were investigated by the following agencies: FBI; U.S. Secret Service; IRS-CI; Defense Criminal Investigative Service; Homeland Security Investigations; U.S. Postal Inspection Service; Army Criminal Investigations Division; Food and Drug Administration’s Office of Criminal Investigations; the Diplomatic Security Service; and the Offices of Inspectors General from the Small Business Administration, Department of Labor, Department of Homeland Security, Federal Deposit Insurance Corporation, Department of Health and Human Services, Department of Veterans Affairs, Federal Housing Finance Agency, Federal Reserve Board, Social Security Administration, the Special Inspector General for Pandemic Relief, Treasury, and the Treasury Inspector General for Tax Administration.

OCDETF Fusion Center and OCDETF’s International Organized Crime Intelligence and Operations Center, the Pandemic Response Accountability Committee, the Financial Crimes Enforcement Network, and the National Unemployment Insurance Fraud Task Force provided key support.