Category: Daily News

Now that injured workers no longer have a formal Workers’ Compensation Rehabilitation Program, the California Department of Rehabilitation may fill some gaps in benefits. The DOR administers a program in cooperation with the Federal Government, aimed at assisting physically and/or mentally handicapped persons in achieving a maximum degree of support. (Welf. & Inst. Code sec. 19000.) This program is funded by 80 percent federal and 20 percent state funds.

The service may be provided only to disabled individuals who are of employable age or who may be expected to be of employable age upon completion of rehabilitation services, and for whom it has been determined vocational rehabilitation may be satisfactorily achieved. (Welf. & Inst. Code sec. 19018.). Although the Department may not be able to provide a living allowance while the person is in training, it may be able to assist the person financially in many other ways. Interested persons should contact the Department of Rehabilitation to determine if they are eligible to receive benefits.

Thus, this appellate case may be of interest to the Workers’ Compensation community, and it concerns the proper interpretation of the term “maintenance” under Title I of the Rehabilitation Act of 1973, as amended (Pub.L. No. 93-112 (Sept. 26, 1973) 87 Stat. 355, 29 U.S.C. § 701 et seq.; the Act), and related California law.

Under the Act, the federal government provides grants to participating states, including California, to help fund vocational rehabilitation services for individuals with disabilities. In California, those services are provided by the Department of Rehabilitation. John Doe is a recipient of such services.

The Department agreed to cover Doe’s law school tuition and other expenses, but it refused to pay his rent while he attended a school that was outside of commuting distance from his home.

Doe argued rent qualified as “maintenance,” a covered expense under the Act and California law. But the Department, while interpreting the same statutes and regulations as Doe, determined the law prohibited it from paying Doe’s rent, which it deemed to be a non-covered “long-term everyday living expense.”

Doe testified that before law school he had been living with his mother and didn’t have to pay rent or utilities. In essence, Doe’s position was that because he had no housing or utility expenses, his rent while in law school was a cost in excess of his normal living expenses. Doe stated he didn’t have the financial ability to pay for rent and would have to drop out of school if the Department didn’t pay it.

An administrative law judge (ALJ) upheld the Department’s decision, and a trial court denied Doe’s petition for writ of mandate. Both the ALJ and the court found that rent was allowable as “maintenance” only for short-term shelter, and not for a term of three years, which was deemed to be long term.

The Court of Appeal reversed in the published case of Doe v Department of Rehabilitation -G062519 (August 2024).

The Department agreed to cover tuition less any scholarships or grants, the security deposit for an apartment, initial setup charges for utilities, monthly internet costs, and travel costs for “one way to school at the start of the semester, and at the end of the semester, one roundtrip mileage.” But the Department denied Doe’s request for rent for the anticipated three years of school attendance.  About a week later, Doe signed a 13-month lease for an apartment near the non-commuter school. The monthly rent was $2,865. At that rate, three years of rent would cost $103,140. His request for reimbursement of this expense was denied, because “the Department doesn’t pay for housing.”

In deciding this dispute, the Court of Appeal noted that twenty specific categories of vocational rehabilitation services are enumerated in the Federal Act. (29 U.S.C. § 723(a).). Under the Federal Act, vocational rehabilitation services include “maintenance for additional costs incurred” while receiving such services. (29 U.S.C. § 723(a)(7).)

One example of maintenance is “[t]he cost of short-term shelter that is required in order for an individual to participate in vocational training at a site that is not within commuting distance of an individual’s home.” (34 C.F.R. § 361.5(b)(34) (2022).) As a catchall provision, the federal implementing regulations include a twenty-first category: “Other goods and services determined necessary for the individual with a disability to achieve an employment outcome.” (34 C.F.R. § 361.48(b)(21) (2022).)

As a participating state, California requires that its vocational rehabilitation program “be consistent with the national policy toward people with disabilities articulated in . . . [the Act].” (Welf. & Inst. Code, § 19000, subd. (c).). California’s statute largely tracks the language of the Act and similarly provides for “[m]aintenance, not exceeding the additional costs incurred while participating in rehabilitation.” (Welf. & Inst. Code, § 19150, subd. (a)(8).)

A participating state need not accept all eligible individuals into its vocational rehabilitation program. (29 U.S.C. § 721(a)(5) [order of selection of eligible individuals for services].) But once an individual is accepted as a client, “the scope of [the state agency’s] discretion narrows considerably. The agency is required to provide the client at least with those services enumerated in the Act which are necessary to assist the [eligible] person to achieve his or her vocational goal.” (Schornstein v. New Jersey Division of Vocational Rehabilitation Services (D.N.J. 1981) 519 F. Supp. 773, 779; 29 U.S.C. § 723(a).)

The Court of Appeal concluded that to “determine if a cost can be covered as “maintenance,” the question is whether the cost is in excess of normal expenses and tied to receiving other vocational rehabilitation services – not whether the cost is short- or long-term.”

Accordingly, the matter was remanded so the Department can reconsider Doe’s request under the proper definition of “maintenance.”

Tina Turrieta, Brandon Olson, and Million Seifu each worked as a driver for Lyft, Inc. (Lyft) and each filed a separate action seeking civil penalties under PAGA for Lyft’s alleged failure to pay minimum wages, overtime premiums, and business expense reimbursements.

In September 2019, Turrieta and Lyft attended a mediation. When they failed to reach agreement, the mediator made a settlement proposal based on his valuation of the case, and the parties accepted the proposal.In early December 2019, Turrieta and Lyft signed an agreement settling Turrieta’s action and scheduled a settlement approval hearing for January 2, 2020.

Before that hearing, Olson and Seifu filed separate motions to intervene in Turrieta’s action and submitted objections to the settlement. The trial court denied the motions, approved the settlement, and later denied the motions of Olson and Seifu to vacate the judgment.

Olson and Seifu appealed, challenging both the settlement and the denials of their various motions. The Court of Appeal affirmed, finding that the trial court had properly denied the intervention motions and that Olson and Seifu lacked standing to move in the trial court to vacate the judgment or to challenge the judgment on appeal. Olson petitioned for our review of the appellate court’s decision, asserting that as a deputized agent of the state under PAGA, he has the right, on behalf of the state, to intervene in Turrieta’s action, to move to vacate the judgment in that action, and to have the court consider his objections to the proposed settlement of that action.

The Supreme Court of California affirmed in the case of Turrieta v Lyft Inc., – S271721 (August 2024)

“This case involves what has become a common scenario in PAGA litigation: multiple persons claiming to be an ‘aggrieved employee’ within the meaning of PAGA file separate and independent lawsuits seeking recovery of civil penalties from the same employer for the same alleged Labor Code violations.”

The Labor Code Private Attorneys General Act of 2004 (PAGA) provides that an aggrieved employee, after complying with specified procedural prerequisites, may “commence a civil action” to recover civil penalties that the the California Labor and Workforce Development Agency (LWDA) has statutory authority to collect civil penalties from employers that violate certain provisions of the Labor Code.LWDA may assess and collect. (§ 2699.3, subd. (a)(2)(A).)

The Court of Appeal ruled that Olson and Seifu could not “meet the threshold” requirement under Code of Civil Procedure section 387 for either mandatory or permissive intervention: “[A] direct and immediate interest in the settlement.” (Turrieta v. Lyft, Inc. (2021) 69 Cal.App.5th 955, at pp. 971-972.) For reasons similar to those related to their lack of standing, the court explained, their “position as PAGA plaintiffs in different PAGA actions does not create a direct interest in [Turrieta’s action], in which they are not real parties in interest. [Their] interest in pursuing enforcement of PAGA claims on behalf of the state cannot supersede the same interest held by Turrieta in her own PAGA case. . . . [They] have no personal interest in the PAGA claims and any individual rights they have would not be precluded under the PAGA settlement.” (Id. at p. 977.)

On appeal, the Supreme Court commenced its review of the Court of Appeal decision by saying “In recent years, we have addressed several issues related to PAGA litigation. We begin with a review of the basic principles set forth in our prior PAGA decisions because they provide context for deciding the issues now before us.” Thus this 96 page Opinion is a must read by practitioners in this area of law.

“Although a PAGA plaintiff may use the ordinary tools of civil litigation that are consistent with the statutory authorization to commence an action, such as taking discovery, filing motions, and attending trial, the Supreme Court concluded – for reasons explained in the opinion – that the authority Olson seeks in this case – to intervene in the ongoing PAGA action of another plaintiff asserting overlapping claims, to require a court to consider objections to a proposed settlement in that overlapping action, and to move to vacate the judgment in that action – would be inconsistent with the scheme the Legislature enacted.”

This conclusion best comports with the relevant provisions of PAGA as read in their statutory context, in light of PAGA’s legislative history, and in consideration of the consequences that would follow from adopting Olson’s contrary interpretation.

The Infectious Diseases Society of America (IDSA) is a community of over 13,000 physicians, scientists and public health experts who specialize in infectious diseases. Its purpose is to improve the health of individuals, communities and society by promoting excellence in patient care, education, research, public health and prevention relating to infectious diseases.

The Society just announced the recipients of its Antimicrobial Stewardship Centers of Excellence designation. The eight awarded institutions have created stewardship programs led by infectious diseases-trained physicians and pharmacists that advance science in antimicrobial resistance.

The institutions recently awarded the CoE designation (two of them in California) are:

– – University of Southern California (USC) Norris Cancer Hospital, Los Angeles, CA
– – Keck Hospital of USC (University of Southern California), Los Angeles, CA
– – Baptist Health, Jacksonville, FL
– – Children’s Hospital New Orleans, New Orleans, LA
– – John D. VA Medical Center, Detroit, MI
– – Lake Cumberland Regional Hospital, Somerset, KY
– – Ocean University Medical Center, Brick Township, NJ 08724
– – University of Toledo Medical Center Toledo, OH 43614

The institutions also have achieved standards aligned with evidence-based national guidelines, such as the IDSA-Society for Healthcare Epidemiology of America guidelines and the Centers for Disease Control and Prevention’s Core Elements. A total of 187 programs nationwide have received the designation since the program’s launch in 2017.

“Solving the next public health emergency starts with addressing the threat of antimicrobial resistance at every level,” said Steven K. Schmitt, MD, FIDSA, president of IDSA. “These eight institutions are working to counter the growing problem of resistance, one of the greatest threats facing our future. By honoring them, we are building a community fighting antimicrobial resistance.”

A recently published CDC fact sheet analyzes the threat of Antimicrobial Resistance (AMR) in the U.S. and the impact COVID-19 had on health care facilities. CDC says the number of reported clinical cases of C. auris increased nearly five-fold from 2019 to 2022. Additionally, CDC shows that six bacterial antimicrobial-resistant hospital-onset infections increased by a combined 20% during the COVID-19 pandemic compared to the pre-pandemic period, peaking in 2021 and remaining above pre-pandemic levels in 2022.

“Fighting antimicrobial resistance remains a priority for IDSA as we continue to support legislative efforts to strengthen the U.S. response to antimicrobial resistance by advocating for passage of the Pioneering Antimicrobial Subscriptions to End Upsurging Resistance (PASTEUR) Act,” Dr. Schmitt said.

The core criteria for the CoE program place emphasis on an institution’s ability to implement stewardship protocols by integrating best practices to slow the emergence of resistance, optimize the treatment of infections, reduce adverse events associated with antibiotic use and to address other challenging areas related to antimicrobial stewardship. A panel of IDSA member experts in antimicrobial stewardship, including ID-trained physicians and ID-trained pharmacists, evaluate CoE applications against high-level criteria established by IDSA leadership for determining merit.

Sheila Murphy was employed by the County of Sonoma on January 20, 2019. On that day she was hiking through tall grass while checking trail cameras. That evening she found a tick embedded on her right hip. She later developed a rash and became concerned that she might have contracted Lyme Disease, and so presented at Kaiser in Santa Rosa where her primary care physician prescribed antibiotics.

On March 19, 2019 she visited Kaiser Occupational Medicine department. At that time, it was the opinion of the Dr. Yee that it was unlikely that she had Lyme Disease. Nevertheless, it appears that an antibody test, referred to as the “ELISA” test by Dr. Leonard, was performed. The result of that test was negative.

There was a difference in opinion between the applicant’s initial treating doctors, affiliated with Kaiser, and the applicant’s subsequent treating doctor, Dr. Gitlin. The Kaiser doctors felt that applicant did not contract Lyme disease and Dr. Gitlin believed that she did, and diagnosed the disease by symptomology alone.

Applicant’s Kaiser physicians performed the ELISA test and applicant tested negative for Lyme disease. Notwithstanding these findings, the Western Blot test was requested by Dr. Gitlin and performed. The result of that testing, however, “also support[ed] the conclusion that applicant did not contract Lyme disease.” Applicant therefore tested negative on both counts.

Given this divide, the parties retained Dr. Leonard as the panel QME. Dr. Leonard reviewed literature concerning diagnosis of Lyme disease and found that there was a two-step process which consisted of an ELISA test, which, if positive for findings of Lyme disease, required completion of a second test, called the Western Blot test. “[W]ith a negative ELISA” it was understood that “further testing is not necessary.”

Based upon the above referenced test results, an evaluation of the applicant, and a review of the complete medical record, the QME found no injury AOE/COE. Within his reports and during his deposition, the QME explained the basis for his opinions and explained his reasoning for the findings. The QME ultimately issued a total of three reports.

August 9, 2022 Findings and Order by the WCJ found that applicant, while working as a park aide for defendant, “did not contract Lyme disease as a result of a tick bite on January 20, 2019.” The WCJ’s decision was based upon the findings of the panel Qualified Medical Evaluator (QME), Dr. Thomas Leonard.

Reconsideration was denied in the panel decision of Murphy v County of Sonoma/Regional Parks Division – ADJ13607768-1 (July 2024).

Applicant makes several arguments. First, applicant argues that Dr. Leonard does not have the requisite experience to be considered an expert on the diagnosis of Lyme Disease.

In response the WCJ in his Report said the “court disagrees. Although the doctor states that he has seen only 10 cases in his career, the undersigned has never seen a Lyme Disease case in 22 years of workers comp practice and on the bench.” “Ten cases seems like a significant number, enough to establish sufficient expertise for a Qualified Medical Evaluator.”

Finally, the applicant noted that “Dr. Leonard and the trial judge placed considerable weight on the two tests applicant took for Lyme disease, the ELISA and the Western Blot, both of which were negative for Lyme disease.”

To this the WCJ responded that the “reason for this considerable weight is that Lyme Disease is caused by bacteria, which, if it is present in the body, elicits an immune response. The presence of the bacteria causes human body to manufacture antibodies which are detectable in the blood. If the bacteria are present, antibodies will appear. If the antibodies do not appear, the bacteria is not present, and the individual does not have Lyme Disease.”

And he went on to say “the workers’ compensation system is ill equipped to address unusual, even ground breaking, medical situations. The workers’ compensation system deals with “reasonable medical probability” and evidence based peer reviewed medical consensus. In the present case, this means looking at the generally accepted methods of diagnosing Lyme Disease. In this case that compels a finding that the applicant does not have Lyme Disease.”

In denying the Petition for Reconsideration the WCAB panel said “Having reviewed the trial record we see no evidence which is inconsistent with the QME’s opinions, and we see no support for applicant’s argument that the QME reports are not substantial evidence. We also see no evidence of bias, speculation, or inexperience on the part of the QME, as asserted by applicant. We therefore agree with the WCJ that the reports from QME are substantial medical evidence.”

Twanda Bailey began working at the District Attorney’s Office in 2001 as a clerk in the records department. The office promoted her in 2011 to an investigative assistant position. Bailey worked alongside Saras Larkin, another investigative assistant. The two sat next to each other in the records room. Bailey is African-American. Larkin is Fijian/East Indian.

On January 22, 2015, while in the records room, Larkin told Bailey that she saw a mouse run under Bailey’s desk. Bailey was startled and jumped out of her chair. Larkin walked up to Bailey and quietly said, “You [N-words] is so scary.” Immediately following this incident, Bailey left her office and told three coworkers what Larkin had said. Bailey was crying and upset. Although Bailey was offended by Larkin’s use of the racial slur, she did not immediately complain to human resources because she feared harassment and retaliation.

This fear was based on Bailey’s understanding that other employees had been harassed and discriminated against following incidents with Larkin. Specifically, Bailey understood that Larkin was best friends with the office’s department personnel officer, Evette Taylor-Monachino, and that Larkin’s actions against other African-American women, Davonne Mark and Sydney Fisher, caused them to be reassigned or to separate from the District Attorney’s Office. In a declaration, Mark attested to the close friendship between Taylor-Monachino and Larkin. Mark had worked in the records room with Bailey and Larkin but stated that she was reassigned after Larkin made false accusations against her.

Nontheless, information about the event was relayed to Sheila Arcelona, the assistant chief of finance and administration. Arcelona and Taylor-Monachino met with Bailey on January 29. Bailey reiterated that Larkin had used an offensive racial slur and confirmed that this was the only time she had heard Larkin use such language. Arcelona informed Bailey that “management would address the issue” and that Bailey should report any inappropriate behavior directly to management.

Arcelona and Taylor-Monachino then met with Larkin, who “did not admit to making the alleged remark.” Arcelona counseled Larkin on the city’s “Harassment-Free Workplace Policy” and informed her that use of the alleged language was “unacceptable.”

Although Taylor-Monachino was the HR representative charged with reporting incidents of workplace harassment to the city’s Department of Human Resources (DHR), she did not file a formal complaint as city policy required. Bailey claimed that that Taylor-Monachino’s conduct towards her had changed after March 23. As a result, Bailey felt she needed to avoid walking past Taylor-Monachino’s office, which was next to the records room where Bailey worked.

On December 30, Bailey filed suit against the City for racial discrimination, racial harassment, retaliation, and failure to prevent discrimination in violation of FEHA. The City moved for summary judgment and the trial court granted that motion and concluded that no trier of fact could find severe or pervasive racial harassment based on being “called a ‘[N-word]’ by a co-worker on one occasion.” In an unpublished opinion, the Court of Appeal affirmed the trial court’s grant of summary judgment. (Bailey v. San Francisco District Attorney’s Office (Sept. 16, 2020, A153520) [nonpub. opn.], as mod. on denial of rehg. Oct. 6, 2020) The California Supreme Court granted review.

The California Supreme Court reversed the judgment of the Court of Appeal in the case of Bailey v. S.F. Dist. Attorney’s Office -S265223 (July 2024)

To prevail on a claim that a workplace is racially hostile under FEHA, an employee must show she was subjected to harassing conduct that was (1) unwelcome; (2) because of race; and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.. The parties did not dispute that Larkin’s conduct was unwelcome and because of race. The case therefore considered its severity and the City’s liability.

The standard for workplace harassment claims strikes a “middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury.” (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21 (Harris).) The United States Supreme Court has held: “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment – an environment that a reasonable person would find hostile or abusive – is beyond Title VII’s purview.”

The Court also noted that the “same standard applies to FEHA. (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130 (plur. opn. of George, C. J.)  ; Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.)” Whether a work environment is reasonably perceived as hostile or abusive “is not, and by its nature cannot be, a mathematically precise test.” (Harris, supra, 510 U.S. at p. 22.) “The working environment must be evaluated in light of the totality of the circumstances.”

The City argued that “[a] single race-based comment by a coworker – even when involving a categorically offensive and impermissible term – over a fourteen year period” can be considered neither “pervasive” nor “severe.” Bailey responded that, under prevailing FEHA principles and standards, the Court of Appeal’s holding “that a co-worker’s, as opposed to a supervisor’s, one-time infliction of [a] slur is categorically non-actionable under FEHA . . . is neither compelled nor warranted.” The California Supreme Court agreed with Bailey that “that the Court of Appeal placed undue emphasis on the speaker’s status as a coworker.” Instead it said the “objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position.”

“This standard allows that ‘an isolated incident of harassment, if extremely serious, can create a hostile work environment.‘ (Boyer-Liberto v. Fontainebleau Corp. (4th Cir. 2015) 786 F.3d 264, at p. 268, citing Faragher v. Boca Raton (1998) 524 U.S. 775 at p. 788; see U.S. Equal Employment Opportunity Commission, Section 15: Race & Color Discrimination (Apr. 19, 2006) 15-VII Equal Opportunity for Job Success, p. 15-37 (EEOC Compliance Manual) [‘a single, extremely serious incident of harassment may be sufficient to constitute a Title VII violation’]; ibid. [‘The more severe the harassment, the less pervasive it needs to be, and vice versa’].).”

The California Supreme Court when on to say in this Opinion “We join the chorus of other courts in acknowledging the odious and injurious nature of the N-word in particular, as well as other unambiguous racial epithets.” “Far from ‘a mere offensive utterance” (Harris, supra, 510 U.S. at p. 23), this slur may be intrinsically ‘humiliating’ depending on the totality of the circumstances (ibid.).”

“We therefore reverse the judgment of the Court of Appeal and remand the cause to that court for further proceedings consistent with this opinion.”