Author: WorkCompAcademy

Angel Hernandez was employed by the California Highway Patrol and filed an industrial injury claim for cardiovascular disease and a stroke. In 2021 the parties entered into a Stipulations with Request for Award for permanent total disability. The WCJ issued an Award pursuant to the Stipulations with Request for Award.

In 2022 the State Fund refused to provide Hernandez with a Supplemental Job Displacement Benefit Voucher, correctly stating that Labor Code section 4658.7 applies only if the injury causes permanent partial disability. SCIF pointed out that applicant is not permanently partially disabled, but is in fact permanently totally disabled. The matter proceed to trial on the SJDB issue.  

A February 10, 2023 Findings and Award found that applicant is entitled to a Supplemental Job Displacement Benefit (SJDB) voucher when it failed to offer regular, modified, or alternative work following the receipt of the September 13, 2018 report of David W. Baum, M.D.

The State Fund Petition for Reconsideration was granted, and the Findings and Award was rescinded in the panel decision of Hernandez v State of California Department of Highway Patrol – ADJ11168233 (May 2022).

Defendant contends that applicant is not entitled to a SJDB voucher because applicant did not suffer permanent partial disability but rather suffered permanent total disability.

Applicant argued that he was not claiming he is entitled to a Supplemental Job Displacement Benefit Voucher in order to avail himself of the education-related retraining or skill enhancement contemplated by section 4658.7. He can never work again, so retraining would be pointless.

Instead, Applicant is claiming entitlement to a Supplemental Job Displacement Benefit Voucher only because that is the method promulgated by statute to apply for the $5,000.00 Return-to Work Supplement payment.

Labor Code, section4658.7(b)1 provides that an injured worker is entitled to a SJDB voucher if the industrial injury causes permanent partial disability and the employer fails to make an offer of regular, modified, or alternative work. (§ 4658.7(b).) Section 4658.7(b)(1) and (2) and Rule 10133.31(b) provide that the offer of regular, modified, or alternative work must be made no later than 60 days after receipt of the Physician’s Return to Work & Voucher Report (Form DWC-AD 10133.36) and must last for at least 12 months. (§ 4658.7(b)(1) and (b)(2); Cal. Code of Regs.tit. 8, § 10133.31(b).)

A different Appeals Board panel in Sanchez v. Forever 21, Inc. (ADJ11573028, December 5, 2022) [2022 Cal. Wrk. Comp. P.D. LEXIS 333] and Schmidt v. Fremont Swim School (ADJ12311590, December 7, 2022) [2022 Cal. Wrk. Comp. P.D. LEXIS 342] opined that a Physician’s Return to Work & Voucher Report is not necessary so long as applicant makes a showing that he sustained permanent partial disability and the employer failed to show that it offered regular, modified, or alternative work.

Here, Dr. Baum’s report serves as notice to defendant that applicant sustained permanent disability, which would trigger defendant’s duty to offer regular, modified, or alternative work within 60 days, or a SJDB voucher, if the permanent disability is partial.

Dr. Baum opined that applicant sustained a 55% whole person impairment (WPI) as a result of his stroke and a 50% WPI due to hypertensive cardiovascular disease, for a combined WPI of 78%.  It is unclear what percentage of permanent disability results from Dr. Baum’s impairment rating. If Dr. Baum’s impairment rating results in permanent partial disability, then the WCJ is correct that the SJDB statute is triggered at that time. If Dr. Baum’s impairment rating results in permanent total disability, then defendant is correct that applicant is not entitled to a SJDB voucher.

The panel went on to say that “applicant’s position that it is not seeking a voucher for its retraining purposes but merely as a step to obtain a Return-to-Work supplemental benefit is concerning. While we understand that the Return-to-Work supplemental benefit requires the issuance of a SJDB voucher, seeking a voucher in name only without intending to benefit from its intended purpose of retraining a worker is not proper. (See Finch v. Chicos (ADJ10123459, June 17, 2020 [2020 Cal. Wrk. Comp. P.D. LEXIS 233] [Appeals Board affirming the WCJ’s conclusion that a voucher “in name only” is not sufficient to trigger the applicant’s eligibility for the Return-to-Work Supplemental Program benefit].) We also note that applicant is represented by a guardian-ad-litem because he is deemed incompetent and we question the propriety of a voucher in circumstances where the applicant is deemed incompetent.”

According to recent research, AI-based software revenue is expected to climb from $9.5 billion in 2018 to $118.6 billion in 2025 as companies seek new insights into their respective businesses that can give them a competitive edge.

The InsurTech100 2022 List is a ranking that recognizes the innovators that are providing solutions to address the most pressing challenges faced by the insurance and InsurTech industry today. One of the 100 on the list is based in Santa Clara, and just announced a new product for general liability claims.

CLARA Analytics is an AI as a service (AIaaS) provider that it says improves casualty claims outcomes for commercial insurance carriers and self-insured organizations. The company was founded in 2017 and is headquartered in California’s Silicon Valley.

Artificial Intelligence as a Service (AIaaS) is the third-party offering of artificial intelligence (AI) outsourcing. It enables individuals and companies to experiment with AI for various purposes without a large initial investment and with lower risk.

It showcased the company’s product suite and latest innovations, including the new general liability solution, at RISKWORLD, which was held May 1-3, 2023, at Georgia World Congress Center in Atlanta. It announced its AI platform for general liability claims. The addition of general liability completes CLARA’s casualty lines risk and exposure platform.

The company’s product suite applies image recognition, natural language processing, and other AI-based techniques to unlock insights from medical notes, bills and other documents surrounding a claim.

CLARA’s predictive insight gives claim professionals augmented intelligence to help them reduce claim costs and optimize outcomes for the carrier, customer and claimant.

CLARA says its customers include companies from the top 25 global insurance carriers to large third-party administrators and self-insured organizations.

CLARA’s casualty lines AI platform ingests both structured and unstructured claims data, using natural language processing to extract detailed information from claims reports, medical records, and legal correspondence. Tailored specifically for general liability claims, the platform uses machine learning algorithms to identify variables that correlate with litigation, medical escalation, and other outcomes that drive higher costs.

CLARA says it is leveraging its proven models and applying key learnings to its entire range of products to serve the general liability line of business:

– – CLARA Optics reduces document review time with automated medical records and legal demands transcription, extraction and organization to highlight important claim details.
– – CLARA Triage helps claims managers to focus on high-risk claims to determine the optimal path to resolving them while fast-tracking low severity claims.
– – CLARA Litigation offers insights on attorney performance and settlement guidance to help payers reach amicable settlements and avoid costly litigation.

A panel of analysts and industry experts voted from a longlist of over 1,400 companies produced by FinTech Global. The finalists on the InsurTech100 2022 List were recognized for their innovative use of technology to solve a significant industry problem, or to generate efficiency improvements across the insurance value chain.

Returning to this year’s list is Majesco, a SaaS software provider that they say empowers the success of the insurance industry’s digital transformation. The company acquired SaaS-based InsurTech Global IQX and also partnered with CyberCube to support growing demand for cyber insurance products

Another company on this year’s list, has also had a busy year, hyperexponential empowers actuaries, underwriters and executives to do what they do best with next generation pricing intelligence software. The company partnered with Canopius, a global specialty (re)insurer, to deploy its pricing platform.

According to research by FinTech Global, there were a total of 78 InsurTech seed deals in the first half of 2022 across 27 countries. With 66% occurring in the first quarter. The United States accounted for the most InsurTech seed deals in H1 2022 with 25 deals, a 32% share of total deals. Brazil and India were the second most active InsurTech seed deal country with six deals each this half.

Rochelle Walensky, the director of the Centers for Disease Control and Prevention who guided President Joe Biden’s response to the Covid-19 pandemic from his first day in office, is leaving her post. Her announcement comes days before the Biden administration plans to end the public health emergency in place since early 2020, and at a time when Covid fears have receded and life mostly returned to a pre-pandemic normal.

According to the report on her announcement by Politico, last summer, Walensky launched a reorganization of the CDC, acknowledging that its “performance did not reliably meet expectations” during the pandemic.

She said she wanted to modernize the agency and rehabilitate its reputation.

In a statement, Biden said, “Walensky leaves CDC a stronger institution, better positioned to confront health threats and protect Americans.”

In an internal email announcing her departure, Walensky wrote that she would step down on June 30.

She gave no specific reason for the decision to resign, writing that “at this pivotal moment for our nation and public health, having worked together to accomplish so much over the last two-plus years, it is with mixed emotions that I will step down.”

Walensky touted the administration’s Covid response, the CDC’s decision to declare racism a serious public health threat and its efforts to contain mpox among the accomplishments on her watch.

“I have never been prouder of anything I have done in my professional career,” she wrote.

Walensky had earlier this year notified top White House aides, including Chief of Staff Jeff Zients, that she planned to leave, an administration official granted anonymity to discuss her departure said. The two ultimately settled on making the decision public around the end of the Covid public health emergency.

Still, her resignation blindsided many health officials throughout the administration, many of whom had expected her to stay on at least through the end of the year – if not the end of Biden’s first term.

And Walensky in her email offered little in the way of a transition plan, writing only that “more information will be shared with you about next steps for CDC.”

Georges Benjamin, executive director of the American Public Health Association, said Walensky’s departure will not adversely impact the government’s transition out of the public health emergency.

“But it’s more turmoil for the agency, it’s always unfortunate when a leader leaves,” Benjamin said. “I think she did a good job and I’m sorry to see her go.”

But her critics, including many Republicans in Congress, see Walensky as responsible for confusing public health messaging that didn’t help end the pandemic, but did reduce trust in the government.

And public trust in the CDC has dropped dramatically since April 2020. Scores of lawsuits have been filed by critics of its pandemic performance challenging the agency’s authority, raising the very real question of whether Americans will listen to federal health officials’ recommendations the next time a national health crisis rolls around.

Walensky sought to regain lost ground by being more forthcoming about the CDC’s failings in recent months.

Gary Gibson was employed by Apex Envirotech when he sustained a hearing loss industrial injury. The injury resulted in a permanent partial disability, but did not result in any period of temporary disability, and he lost no time from work.

His WCAB action was filed after he was laid off from work. The parties proceeded to trial solely on the issue of provision of the supplemental job displacement voucher (SJDV). The parties stipulated to all relevant facts and presented the matter solely as a question of applying the facts to the law.

Defendant argued that per Rule 10133.31(c), defendant was not obligated to provide a return to work offer to applicant because applicant did not lose time from work, and thus, no SJDV is due. (Cal. Code Regs., tit. 8, § 10133.31(c).)

Applicant argued that defendant either misconstrues the regulation, or in the alternative, the regulation exceeds the scope of its enabling statute in requiring applicant sustain compensable temporary disability as a precursor to receipt of a voucher.

A Findings and Award issued on February 15, 20231, which found that defendant was not excused from providing applicant a return to work offer per Rule 10133.31(c) (Cal. Code Regs., tit. 8, § 10133.31(c),) when the reason that applicant missed no time from work was because applicant had been laid off prior to filing latent injury claims. Although there were two injuries plead, the parties stipulated to a single joint award of permanent disability based upon the fact that the hearing loss was inextricably intertwined. As the permanent disability was intertwined, only one voucher was awarded.

Reconsideration of this award was denied for the reasons stated by the WCJ in his Report. The case is Gibson v Apex Envirotech ADJ13603159 – ADJ16641427 (April 2023).

For injuries occurring on or after January 1, 2013, Labor Code section 4658.7 controls whether defendant is liable to provide a supplemental job displacement voucher (SJDV).

In Dennis v. State of California (April 30, 2020) 85 Cal.Comp.Cases 389 [2020 Cal. Wrk. Comp. LEXIS 19] (Appeals Board en banc), the Appeals Board held: “[A]n employer’s inability to offer regular, modified, or alternative work does not release an employer from the statutory obligation to provide a SJDB voucher.” “Thus, absent a bona fide offer of regular, modified, or alternative work, regardless of an employer’s ability to make such an offer, and regardless of an employee’s ability to accept such an offer, an employee is entitled to a SJDB voucher.”

Here, defendant argues that applicant never lost time from work and thus, defendant is deemed to have provided a job offer per Rule 10133.31(c).

Rule 10133.31(c) provides that “An employee who has lost no time from work or has returned to the same job for the same employer, is deemed to have been offered and accepted regular work in accordance with the criteria set forth in Labor Code section 4658.7(b).”

According to the WCJ “This argument creates a hyper-technical application of the rule that does not comport with the purpose of the rule or its enabling statute. The purpose of the SJDV is to assist people who are not working, regain employment. When you read the entire Labor Code and regulatory scheme together, it is clear that Rule 10133.31(c) presumes that applicant is actually working for the employer. If applicant continues to work throughout the duration of litigation in the same position and never left that position due to the injury, the employer is deemed to have offered regular work.”

“In this case applicant was not working at all during the pendency of this litigation. The reason applicant technically lost no time from work was because he was laid off years prior to filing a latent injury claim. These facts do not excuse defendant from providing either a return-to-work offer, or a SJDV.”

“Hyper-technical arguments tend to be the antithesis of substantial justice.“

“As to applicant’s argument that Rule 10133.31(c) is invalid, the rule appears well intentioned, but it may exceed the scope of its authorizing statute. The intent of the rule is based upon a commonsense question: Why would you give someone a return to work offer if they never left work?”

The California and New York Attorney General just announced a joint investigation into allegations of employment discrimination and a hostile work environment at the National Football League. The NFL has offices in New York and California with more than 1,000 employees.

The joint investigation will examine the workplace culture of the NFL and allegations made by former employees, including potential violations of federal and state pay equity laws and anti-discrimination laws. The Attorneys General issued subpoenas to the NFL seeking relevant information.

The joint press release cites examples such as the February 2022 New York Times report on more than 30 former female employees alleging gender discrimination and retaliation after they had filed complaints with the NFL’s human resources division.

According to the times, the women they interviewed “described a stifling, deeply ingrained corporate culture that demoralized some female employees, drove some to quit in frustration and left many feeling brushed aside.”

The women said this culture has persisted despite a promise from N.F.L. Commissioner Roger Goodell – made after the 2014 release of a video that showed running back Ray Rice punching his fiancée unconscious – that the league would take a stricter stance on domestic violence and sexual assault and hire more female executives.

The Times also reports that the former Miami Dolphins coach Brian Flores, who is Black and Hispanic, sued the league for racial discrimination in its hiring practices, and two former employees of the newly renamed Washington Commanders told Congress that the team’s owner, Daniel Snyder, had placed his hand on a female employee’s thigh at a staff dinner and hosted a work event where team executives hired prostitutes.

The AG announcement specifically noted that, in April 2023 Jennifer Love, a former director for NFL Enterprises LLC, filed an employment discrimination lawsuit in Los Angeles Superior Court, alleging age, sex and gender discrimination and a hostile work environment. She alleged “pervasive sexism” in the workplace and a “boys’ club” mentality among male peers, while attributing her 2022 layoff to retaliation for her complaints.

According to the AG press release, additional lawsuits have been filed against the NFL pertain to race discrimination targeting a Black female employee and sexual harassment of a female wardrobe stylist, amongst others.

Last year, the U.S. Congressional Committee on Oversight and Reform initiated a congressional inquiry into allegations of workplace misconduct by an NFL team owner. The Committee held oversight hearings to determine the magnitude of the situation, including the role played by NFL leadership.

The Committee’s investigation report said that “sexual harassment, bullying, and other toxic conduct pervaded the Commanders workplace, perpetuated by a culture of fear instilled by the Team’s owner. Despite the NFL’s knowledge, through its internal investigation, that the Team’s owner permitted and participated in the workplace misconduct, and engaged in tactics used to intimidate, surveil, and pay off victims, the NFL aligned its legal interests with the Commanders, failed to curtail these abusive tactics, and buried the investigation’s findings.”

“Today’s report reflects the damning findings of the Committee’s year-long investigation and shows how one of the most powerful organizations in America, the NFL, mishandled pervasive sexual harassment and misconduct at the Washington Commanders,” said Chairwoman Carolyn B. Maloney.

Despite reports and allegations of abuse perpetrated by both players and male staff, the Attorney General claims allegations that the NFL has not taken sufficient effective steps to prevent discrimination, harassment and retaliation from occurring in the workplace persist.

The Attorneys General of California and New York say they are exercising their legal authority to seek information from the NFL regarding allegations of gender pay disparities in compensation, harassment, and gender and race discrimination.

The N.F.L. employs about 1,100 people, 37 percent of them women and 30 percent people of color, according to the league spokesman Brian McCarthy. Like corporations around the country, it has poured more effort into diversifying its hiring. It has also put in place measures intended to signal support of a diverse work force, such as mandatory antiracism training and an anonymous hotline – called Protect the Shield – for employees’ concerns.