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Category: Daily News

San Francisco Scheduled to Start Opiod Lawsuit Trial on April 25

Courthouse News reports that federal judge cleared the way last week for San Francisco’s opioid lawsuit against Walgreens and a number of pharmaceutical companies to head to trial, which is set to begin on April 25.

Thousands of states, cities and counties have sued pharmaceutical companies over their role in the opioid epidemic, which is believed to have been caused by the marketing and overprescription of prescription drugs like Oxycontin. Many patients who were prescribed an opiate later switched over to using illegal narcotics like heroin. According to the CDC, nearly half a million people died from opiate overdoses between 1999 and 2019.

The biggest culprit was Purdue Pharma, which manufactured and marketed Oxycontin, and which entered bankruptcy in 2020. That proceeding hit the pause button on all lawsuits against Purdue, and eventually lead to a massive settlement, in which cities and states will effectively take over ownership of Purdue. The former owners of the company, the Sackler family, contributed $6 billion to the settlement, a good deal of which went to the governmental entities, in exchange for immunity from future lawsuits.

The drugmaker Johnson & Johnson and three pharmaceutical distributors agreed to a $26 billion settlement with states and municipalities in February.

But that still leaves a multitude of other opioid-related lawsuits in active litigation.

San Francisco filed its suit in 2018 against a panoply of defendants, including Purdue, nine members of the Sackler family and a host of other companies. Some of those defendants, like Purdue, have been released from the case thanks to settlements. But some parties remain, including Walgreens, Actavis, Teva Pharmaceuticals and Endo Pharmaceuticals, the latter two of which specialize in making generic versions of drugs.

The city’s suit made a number of what were at the time novel allegations, including public nuisance and racketeering. In 2020, U.S. District Judge Charles Breyer dismissed the racketeering claims, but allowed the public nuisance claims to go through.

Last week, Judge Breyer further whittled down the list of defendants. In a 9-page decision, Breyer dismissed claims against parent company Endo International, writing, “evidence fails to suggest that Endo subsidiaries are ‘merely an instrumentality’ of Endo International.” He also dismissed claims against a subsidiary, Par Pharmaceuticals. But Endo Pharmaceutical and Endo Health Solutions must still stand trial.

San Francisco has made two claims about the company – that it “made false and misleading statements about the safety and risks of opioids,” and that it “failed to design and operate effective systems to identify suspicious orders of opioids and to prevent diversion of opioids.” Both of those failures, the city claims, amounted to a public nuisance.

In another, much shorter decision, Breyer dismissed motions for summary judgment from five other defendants, including Teva and Walmart.

The strategy of suing opioid companies by alleging public nuisance has had a mixed track record. An Orange County Superior Court Judge, in November 2021, ruled in favor of four pharmaceuticals (including Endo and Teva) after a bench trial in a lawsuit brought by the counties Santa Clara, Los Angeles and Orange and the city of Oakland. That same month, an Oklahoma Supreme Court overturned a $465 Million ruling against Johnson & Johnson, rejecting the public nuisance argument.

Other lawsuits against drugmakers alleging public nuisance are still pending, including a trial in West Virginia, which started this week.

Santa Clarita Contractor Arraigned for Premium Fraud

Adan Deniz, 43, a contractor from Santa Clarita, was arraigned on 21 felony counts of forgery, theft by false pretense, and workers’ compensation insurance fraud after allegedly creating fraudulent certificates to secure jobs and underreporting payroll by over $425,000 to save thousands on insurance premiums.

The California Department of Insurance began an investigation after a licensed insurance agent reported they had received a copy of a fraudulent certificate of insurance, which had been issued in the agent’s name, and contained a forgery of his signature.

The investigation revealed that Deniz created the alleged fraudulent certificate and nine other fraudulent certificates of insurance between May of 2018 and July of 2020. Each of the fraudulent certificates contained false information about insurance coverage, as well as a forged signature from a licensed insurance agent.

Deniz submitted the fraudulent certificates to his clients and to government agencies, in order to convince them he had the required insurance coverage. These fraudulent certificates allowed Deniz to unfairly secure several lucrative plumbing jobs and government permits related to those jobs, which he would have otherwise been unable to secure.

While investigating the fraudulent certificates, Department investigators also discovered that Deniz underreported his company’s payroll from July of 2016 through July of 2019. A review found he allegedly underreported payroll by $426,750 in order to avoid paying $52,269 in insurance premiums to the State Compensation Insurance Fund.

The case is being prosecuted by the Los Angeles County District Attorney’s Office, Healthcare Fraud Division. Deniz is scheduled to return to court on May 25, 2022.

Injured Worker Has Two Years to File Wrongful Termination Claim

Tiffany Aveau sustained a work-related injury to her back on September 6, 2016, and was placed on an extended leave of absence until September 15, 2017. Russian River terminated Aveau on September 18, 2017.

On April 16, 2018, Aveau filed a workers’ compensation petition pursuant to Labor Code section 132a, alleging Russian River had discriminated against her when it fired her due to her work-related injury.

More than a year after her termination, Aveau filed an administrative complaint with the Department of Fair Employment and Housing (DFEH), alleging Russian River discriminated against her due to her work-related injury. That same day, November 20, 2018, the DFEH issued a Notice of Case Closure and Right to Sue letter.

On June 17, 2019, Aveau filed a civil complaint against Russian River alleging three causes of action for wrongful termination. Russian River filed a motion for summary judgment arguing that Aveau failed to comply with DFEH’s one-year filing requirement and, as such, Aveau’s “cause of action for Wrongful Termination is barred by the applicable Statute of Limitations.”

The court subsequently granted Russian River’s motion. The Court of Appeal reversed in the unpublished case of Aveau v. 23 Bottles of Beer.

On appeal Aveau contended the trial court erred by summarily adjudicating her wrongful termination in violation of public policy claim because it was timely brought within the applicable statute of limitations set forth in Code of Civil Procedure section 335.1, which provides a two-year statute of limitations for tort actions.

Russian River maintained that Aveau’s claim is barred by FEHA’s one-year statute of limitations. Alternatively, Russian River asserts that even if the two-year statute of limitations applies, Aveau’s claim still fails for failing to adequately plead a cause of action for wrongful termination in violation of public policy. Both of Russian River’s arguments were rejected.

Citing Prue v. Brady Co./San Diego, 242 Cal.App.4th 1367 (2015) 196 Cal.Rptr.3d 68, the Court concluded that FEHA’s one-year statute of limitations does not apply to Aveau’s common law tort cause of action for wrongful termination in violation of FEHA’s public policy against disability discrimination, and Aveau’s failure to exhaust her administrative remedies for the underlying FEHA claims does not, standing alone, bar her wrongful termination claim.

Thus the summary judgment for the first and second causes of action – (1) disability discrimination in violation of Government Code section 12940, subdivision (a), (2) failure to engage in a timely, good faith interactive process (§ 12940, subd. (n)), – were appropriate.

However summary judgment for the third cause of action – wrongful termination in violation of the public policy articulated under the Fair Employment Housing Act (FEHA) (Gov. Code, § 12920 et seq.) – was reversed. Instead, Code of Civil Procedure section 335.1 applies, providing a two-year statute of limitations for tort actions based on injuries to plaintiffs caused by the wrongful act or neglect of others.

NFL Teams Sue Two Players Over California WCAB Jurisdiction

The Cincinnati Reds and Cincinnati Bengals have filed lawsuits against former players seeking to prevent them from making workers’ compensation claims against the teams.

The Reds sued Kevin Franklin (Case 2:22-cv-01806) and the Bengals sued Chris Manderino (Case 2:22-c-v01806) in U.S. District Court in the Central District of California. Both ex-players live in California.

Both cases were filed on March 18, 2022 by the same Los Angeles/Orange County base firm representing the two teams. Each had as an exhibit an Application for Adjudication of Claim filed before the Workers’ Compensation Appeals Board in California by each player, seeking benefits for claimed industrial injuries as a result of activities of employment.

The allegations of both Complaints for Declarative and Injunctive Relief – Violation of Due Process are similar. Illustrative are the allegations in the Manderino case.

The teams allege that “invocation of WCAB jurisdiction under California Labor Code Sections 3600.5(a) and 5305 violates its right to Due Process of Law under the Fourteenth Amendment to the United States Constitution. Those code sections purport to empower the WCAB to exercise personal jurisdiction over out-of-state defendants in a manner that violates the Due Process Clause.”

The teams go on to allege that “Both sections purport to empower the WCAB to exercise personal jurisdiction over an out-of-state employer, even if the employer’s sole connection to California is the execution of an employment contract in California. Thus, those two code sections purport to endow the WCAB with jurisdiction even if the claim is thoroughly unrelated to any activity conducted by the out-of-state defendant in California. Such exercise of jurisdiction by Defendant is incompatible with the traditional notions of fair play and substantial justice required by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.”

They further allege that the players employment contract contained a choice of law/choice of forum clause agreeing that any workers’ compensation claim, dispute, or cause of action arising out of employment with the teams would be governed exclusively by the laws of the State where each team is located and and brought solely and exclusively before the appropriate industrial tribunal of that state.

Sports injury cases for out of state players were common a decade ago. However, AB 1309 was passed by the California Legislature in 2013, and it put limits on out of state players filing claims in California. The new language was added to L.C. 3600.5, and limited the En Banc WCAB decision in Wesley Carroll v. Cincinnati Bengals, et al.(2013).

It will be very interesting to follow these two cases that may have an effect on sports injury industrial claims, one way, or the other.  

Managing Drug Costs – What Can Go Wrong With That?

Prescription drug costs for California’s massive Medicaid program were draining the state budget, so in 2019 Gov. Gavin Newsom asked the private sector for help. The new Medicaid drug program debuted this January, with a private company in charge. But it was woefully unprepared, and thousands of low-income Californians were left without critical medications for weeks, some waiting on hold for hours when they called to get help.

But according to the report by California Health Line, what happened in the two years between the contract award and the start of the program is a case study in what can go wrong when government outsources core functions to the private sector.

California awarded the Medi-Cal Rx program to a unit of Magellan Health, a company with expertise in pharmacy benefits and mental health. But Magellan was then gobbled up by industry giant Centene, worth roughly $50 billion, which was looking to expand its mental health portfolio.

Centene was already a big player in state Medicaid drug programs – but one with a questionable record. The company was accused by six states of overbilling their Medicaid programs for prescription drugs and pharmacy services and settled to the tune of $264.4 million. Three other states made similar allegations and have settled with the company, but the amounts have not been disclosed. Centene, in resolving the civil actions, denied any wrongdoing.

In his 2019 inauguration speech, Newsom vowed to use California’s “market power and our moral power to demand fairer prices” from the “drug companies that gouge Californians with sky-high prices.”

Drug spending by the state for its Medicaid, prison, state hospital, and other programs had been climbing 20% a year since 2012, so the first-term Democrat issued an executive order requiring California to make its own generic drugs and forge partnerships with counties and other states to buy drugs in bulk. He also directed the state to buy prescription drugs for Californians enrolled in Medi-Cal, the state’s Medicaid program, which covers roughly 14 million people.

Newsom no longer wanted to allow the state’s two dozen Medi-Cal managed-care health plans to provide prescription drug coverage to their enrollees, arguing the state would get a better deal from drug companies by harnessing its purchasing power.

That December, California awarded a competitive $302 million contract to Magellan Medicaid Administration, a subsidiary of Magellan Health, to make sure Medi-Cal enrollees get the medications that California would buy in bulk. Magellan provides pharmacy services to public health plans in 28 states and the District of Columbia.

Magellan was supposed to take over the drug program in April 2021. But on Jan. 4 of that year, Centene – which was seeking a greater role in the lucrative behavioral health market – announced plans to buy Magellan.

St. Louis-based Centene, however, is one of the largest Medi-Cal insurers in the state, a factor that would have disqualified it from bidding for the original contract. Centene provides health coverage for about 1.7 million low-income Californians in 26 counties through its subsidiaries Health Net and California Health & Wellness. It earned 11% of its revenue from California businesses in 2019, according to its 2021 annual report to the U.S. Securities and Exchange Commission.

But the state bent over backward to make it work, delaying implementation of the program while Magellan set up firewalls, sectioned off its business operations from Centene, and paid for a third-party monitor.State regulators reviewed the merger in a 30-minute public hearing in October 2021. They didn’t mention Centene’s legal settlements with other states.The state Department of Managed Health Care approved the merger Dec. 30. Two days later, the state launched its new prescription drug program with Magellan at the controls.

In the past 10 months, Centene has settled with nine states over accusations that it and its pharmacy business, Envolve, overbilled their Medicaid programs for prescription drugs and services: It settled with Arkansas, Illinois, Kansas, Mississippi, New Hampshire, and Ohio, according to news releases from attorneys general in those states. The three other states have not been identified by Centene or the states themselves.

The company has set aside $1.25 billion for those settlements and future lawsuits, according to its 2021 report to the SEC.

Nurse’s Conviction for Medication Error is Demoralizing the Profession

After a three-day trial that gripped nurses across the country, former nurse RaDonda Vaught was convicted in Tennessee of two felonies, gross neglect of an impaired adult and negligent homicide, and is facing eight years in prison for a fatal medication mistake. She is scheduled to be sentenced on May 13

She was arrested in 2019 in connection with the killing of Charlene Murphey, who died at Vanderbilt University Medical Center in late December 2017. Murphey was prescribed a sedative, Versed, to calm her before being scanned in a large, MRI-like machine. Vaught was tasked to retrieve Versed from a computerized medication cabinet but instead grabbed a powerful paralyzer, vecuronium.

Vaught overlooked several warning signs as she withdrew the wrong drug – including that Versed is a liquid but vecuronium is a powder – and then injected Murphey and left her to be scanned. By the time the error was discovered, Murphey was brain-dead.

According to the report by Kaiser Health News, in the wake of Vaught’s trial ― an extremely rare case of a health care worker being criminally prosecuted for a medical error ― nurses and nursing organizations have condemned the verdict through tens of thousands of social media posts, shares, comments, and videos. They warn that the fallout will ripple through their profession, demoralizing and depleting the ranks of nurses already stretched thin by the pandemic. Ultimately, they say, it will worsen health care for all.

Statements from the American Nurses Association, the American Association of Critical-Care Nurses, and the National Medical Association each said Vaught’s conviction set a “dangerous precedent.” Linda Aiken, a nursing and sociology professor at the University of Pennsylvania, said that although Vaught’s case is an “outlier,” it will make nurses less forthcoming about mistakes.

But some of Vaught’s peers support the conviction.

Scott Shelp, a California nurse with a small YouTube channel, posted a 26-minute self-described “unpopular opinion” that Vaught deserves to serve prison time. “We need to stick up for each other,” he said, “but we cannot defend the indefensible.”

Shelp said he would never make the same error as Vaught and “neither would any competent nurse.” Regarding concerns that the conviction would discourage nurses from disclosing errors, Shelp said “dishonest” nurses “should be weeded out” of the profession anyway.

And the controversy around Vaught’s case is far from over. As of April 4, more than 8,200 people had joined a Facebook group planning a march in protest outside the courthouse during her sentencing May 13.

Among the event’s planners is Tina Visant, the host of “Good Nurse Bad Nurse,” a podcast that followed Vaught’s case and opposed her prosecution.

“I don’t know how Nashville is going to handle it,” Visant said of the protest during a recent episode about Vaught’s trial. “There are a lot of people coming from all over.”

Uber Settles California Classification Class Action for $8.4M

In a suit relating to wages, employee classification and sick leave, a federal court in California preliminarily approved an $8.43 million settlement for 1,322 drivers for the company in the state who opted out of Uber’s arbitration clause.

BloombergLaw reported that the proposed $8.4 million deal reached between Uber Technologies Inc. and more than 1,300 California drivers, who alleged they were misclassified as contractors, would end one of the gig economy court battles that predate the passage of Proposition 22.

The settlement award would go to about 1,322 drivers who opted out of arbitration agreements and worked for the company between Feb. 28, 2019, and Dec. 17, 2020, according to a motion for preliminary approval filed on Thursday. The December date reflects the enactment of Prop. 22, a ballot initiative that Uber helped to fund to cement app-based drivers as independent contractors.

Uber and the drivers agreed to dismiss the case in November after signaling they had reached an agreement. The deal is slated for a final approval hearing before the U.S. District Court for the Northern District of California in June. It would follow a $20 million settlement approved by the same court in 2019 between Uber and 15,000 California and Massachusetts drivers.

This class action lawsuit, seeking to represent nearly 5,000 Uber drivers, was launched in April of 2020. The plaintiffs allege that the rideshare giant improperly classifies them and others, depriving its drivers of important benefits, including minimum wage, overtime, and sick leave. The complaint also charged Uber with failing to provide properly itemized pay statements and reimburse drivers for business expenses, such as gas and insurance.

In a Jan. 26 order, the court agreed to grant certification of the proposed Class for itemized wage statements and expense reimbursement; however, U.S. District Judge Edward M. Chen trimmed claims for minimum wage, overtime, and sick leave pay.

Explaining that claims for minimum wages, overtime, and sick pay would all hinge on individual evaluations of each Class Member’s claim, Chen dismissed those class action allegations. Judge Chen also addressed Proposition 22, a new voter-enacted California law that applies only to rideshare drivers.

The settlement doesn’t answer the question of whether Uber drivers are employees entitled to benefits such as overtime, minimum wage, and business expenses – an issue that continues to be debated despite Prop. 22, which was struck down by a state judge as unconstitutional. A California appellate court is weighing that challenge. Drivers wrote in a motion for preliminary approval filed Feb. 17 that, while the settlement doesn’t answer the question of whether they were misclassified, but that it will provide them “significant value.”

Of the $8.4 million proposed settlement, administration costs totaled $29,000; requested attorneys’ fees represent a quarter or $2.1 million; and each named plaintiff will receive $10,000.

Each driver, under the proposed settlement, would be entitled to part of the settlement based on the number of miles drivers picked up passengers and food deliveries, as well as the number of miles driven. The drivers’ attorney Shannon Liss-Riordan anticipated about half of the class will submit a claim.

This is but one of many legal actions Uber is facing over its use of independent contractors as drivers for the ride-hailing app, with the company facing another class action lawsuit lodged early this year over Prop 22. The lawsuit claims that Prop 22, reportedly written and heavily funded by Uber and other rideshare apps, leaves drivers with little pay and few options.

Uber has also been in the spotlight over a growing number of sexual assaults reported by drivers and riders alike.

Telehealth Utilization Growth Continues for Third Straight Month

For the third straight month, national telehealth utilization, measured as a percentage of all medical claim lines, grew in January 2022, according to FAIR Health’s Monthly Telehealth Regional Tracker.

Telehealth utilization increased 10.2 percent, from 4.9 percent of all medical claim lines in December 2021 to 5.4 percent in January 2022. Telehealth utilization also increased in January in every US census region (Midwest, Northeast, South and West), with the greatest increase (17.5 percent) in the West. The data represent the privately insured population, including Medicare Advantage and excluding Medicare Fee-for-Service and Medicaid.

With January 2022, FAIR Health’s Monthly Telehealth Regional Tracker enters its third year of reporting on the evolution of telehealth from month to month. As before, a free, interactive map of the four US census regions allows the user to view an infographic on telehealth in a specific month in the nation as a whole or in individual regions.

In January 2022, social worker was the leading telehealth specialty nationally and in every region but the West, where primary care physician was the leading telehealth specialty, 0.1 percent ahead of social worker. In every other region and nationally, primary care physician was in second place behind social worker. Nationally, psychiatrist, psychologist and primary care nonphysician were in third, fourth and fifth place, respectively.

For January 2022, the Telehealth Cost Corner spotlighted the cost of CPT 92507, treatment of speech, language, voice, communication and/or hearing processing disorder. Nationally, the median charge amount for this service when rendered via telehealth was $129.92, and the median allowed amount was $77.64. The costs varied by region. For example, the highest median allowed amount was $88.47 in the Midwest, and the lowest $69.50 in the South.

In January 2022, COVID-19 continued to rank at number two or three among the top five telehealth diagnoses nationally and in all regions. Its share of telehealth claim lines, however, fell in all locations but the West, where the share remained the same. Mental health conditions remained in first place nationally and in all regions, but certain other diagnoses changed. Developmental disorders, for example, rejoined the top five diagnoses in the Northeast after a month off the list, and encounter for examination rejoined the top five in the South after a month off that list.

In January 2022, CPT 90837, one hour of psychotherapy, was in first place among telehealth procedure codes nationally and in every region. CPT 90833, psychotherapy with evaluation and management visit, 30 minutes, rejoined the top five procedure codes nationally and in the Midwest after a month off those lists. It remained in the top five in the Northeast and West but was not on the list in the South in either December or January.

FAIR Health President Robin Gelburd stated: “As the COVID-19 pandemic enters its third year, FAIR Health begins our third year of tracking the evolution of telehealth. Once again, we have modified our Monthly Telehealth Regional Tracker to keep pace with the changing needs of stakeholders for current information about this venue of care.”

Orthopedist Lacks Expertise to Add vs Combine Internal Disabilities

William Valdez, while employed as a firefighter for the Orange County Fire Authority, sustained a continuous trauma industrial injury in the form of hypertension, coronary artery disease, hands including thumbs, shoulders, feet including toes, and to the upper digestive tract in the form of a hiatal hernia.

In finding permanent disability of 89%, his right and left thumb disabilities were added together rather than combined utilizing the Combined Values Chart in the 2005 Schedule for Rating Permanent Disabilities, as were his right and left foot disabilities. The disabilities were otherwise combined utilizing the Combined Values Chart. (2005 Schedule at pp. 8-1 – 8-4.)

Valdez contended on reconsideration that the WCJ erred in combining applicant’s orthopedic disabilities with his internal medicine disabilities by way of the CVC rather than adding the percentages of permanent disability. Reconsideration was denied in the panel decision of Valdez v Orange County Fire Authority ADJ11323413 (March 2022).

Valdez argues that the orthopedic disabilities should be added to the internal medicine disabilities based on the June 23, 2021 deposition testimony of orthopedist Mitchel Silverman, M.D. Dr. Silverman opined that applicant’s orthopedic impairments did not “overlap” with the internal medicine impairments.He opined that the impairments affected different activities of daily living and work restrictions, although the activities of daily living and work restrictions were not specified.

Explaining why the orthopedic disability should be added to the internal medicine disability, Dr. Silverman testified, “I understand the CVC, but the courts have decided. I haven’t decided, the courts have decided, that there’s a way to look at this in terms of adding them, and I agree in this particular case.”

However the panel concluded that “Dr. Silverman’s report is not substantial medical evidence sufficient to rebut the use of the Combined Values Chart.

In Athens Administrators v. Workers’ Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.), the evaluator explained why the disparate impairments were not actually disparate, and the impairments in question were all under the physician’s expertise.

In contrast, here one specialist is suggesting that we add impairments found by him in his own specialty to impairments in completely different body systems found by a different specialist. As an orthopedist, it was Dr. Silverman’s role to describe and give a whole person impairment with regard to the orthopedic impairment.”

“Dr. Silverman did not give any compelling reason why the orthopedic and internal medicine impairments should be added, and questions beyond applicant’s orthopedic impairment, including applicant’s overall impairment or the operation of the CVC, are beyond Dr. Silverman’s expertise.” (Applied Materials v. Workers’ Comp. Appeals Bd. (D.C.) (2021) 64 Cal.App.5th 1042, 1097 [86 Cal.Comp.Cases 331].)

Truck Driver Hit by Train Was “Sudden and Extraordinary” Injury

Marlon Johnson filed an application alleging that he sustained injury to various body parts, including left forearm, left elbow, left shoulder, left wrist, chest, neck, ribs, abdomen, left side, facial, lung left side, and injury to his psyche on January 10, 2020, while employed by MHX LLC as a truck driver.

The parties stipulated that Johnson had not completed six months of employment prior to his injury. One of the issues to be resolved at trial was to determine if the alleged psych injury was “sudden and extraordinary” and thus non-compensable under Labor Code Section 3208.3.

On the day of the injury, Johnson testified that he was driving his truck on an assigned route when he was caught in bumper-to-bumper traffic near railroad tracks. He suddenly saw “cars zooming off the tracks….” Crossing guards came down between the cab and the trailer of his truck so he was unable to move, however, he believed his truck was clear of the tracks.

He took off his seatbelt to get out of the truck, but, based on how quickly the train was approaching, he did not have time to leave the safe haven of his truck. He testified that his truck was shaking because the train was coming at him “real fast.” He saw the bright lights of the train, his truck was shaking really hard, and the next thing he remembers is the train colliding with his truck.

The WCJ found that section 3208.3(d) exempts defendant from liability for applicant’s psychiatric injury. Johnson’s petition for reconsideration was granted and this finding reversed in the panel decision of Johnson v. MHX LLC – ADJ12944107 (March 2022).

The Legislative and judicial history of section 3208.3 (d), shows that an “extraordinary” employment condition is something that is other than regular and routine, and is uncommon and unusual. This is a primarily fact-driven inquiry.

In Matea v. Workers’ Comp. Appeals Bd. (2006) 144 Cal. App. 4th 1435, the Court of Appeal noted that Webster’s Third International Dictionary “defines ‘sudden’ as ‘happening without previous notice or with very brief notice : coming or occurring unexpectedly : not foreseen or prepared for.'” The Court further observed that “extraordinary” is defined “as ‘going beyond what is usual, regular, common, or customary’; and ‘having little or no precedent and usu[ally] totally unexpected.'”

In Lira v. Premium Packing – ADJ8015423 (2015) Cal. Wrk. Comp. P.D. LEXIS 299,4 a worker was injured when a train collided with tractor being operated by the worker. The WCAB found compensability, and reasoned that a type of accident where a train collides with a tractor-trailer, such as occurred here, was not routine or ordinary but rather was uncommon and unexpected, so as to fall within “sudden and extraordinary” exception.

While automobile accidents generally are not extraordinary events for a truck driver, they may become extraordinary because of extremely unusual circumstances. In this case, being hit by a commuter train is not a common or normal part of a truck driver’s employment conditions. Based on these facts, the collision occurred suddenly, unexpectedly, and without previous notice.