Category: Daily News

The CDC reports that millions of workers drive or ride in a vehicle as part of their jobs, and motor vehicle crashes are the leading cause of work-related deaths in the United States. All workers are at risk of crashes, whether they drive light or heavy vehicles, or whether driving is a main or incidental job duty. And, the risk of industrial transportation related injury will likely increase according to a new UCLA study of an emerging urban transportation phenomena.

West Los Angeles is the epicenter of the electric scooter phenomenon — Santa Monica was one of the first U.S. cities in which the scooters were widely used — but the vehicles are now available in more than 60 cities nationwide and about a half dozen locations outside of the U.S.

UCLA researchers reporting in the JAMA Network, have found that people involved in electric scooter accidents are sometimes injured badly enough — from fractures, dislocated joints and head injuries — to require treatment in an emergency department.

The researchers examined data from 249 people who were treated at the emergency departments of UCLA Medical Center, Santa Monica, and Ronald Reagan UCLA Medical Center between Sept. 1, 2017, and Aug. 31, 2018. The study found that about one-third of them arrived by ambulance, an indication of the severity of their injuries.

“There are thousands of riders now using these scooters, so it’s more important than ever to understand their impact on public health,” said Dr. Tarak Trivedi, the study’s lead author, an emergency physician and scholar in the National Clinician Scholars Program at the David Geffen School of Medicine at UCLA.

The research, published Jan. 25 in JAMA Network Open, is the first published study on injuries caused by electric scooters. It reports that the most common mechanisms of injury among scooter riders were falls (80 percent), collisions with objects (11 percent), or being struck by a moving vehicle such as a car, bicycle or other scooter (9 percent).

E-scooters can reach speeds of about 15 miles per hour, and it has become common to see them zipping along streets and sidewalks — even though they are intended to be used on streets only — often dodging pedestrians and motorists. Unused scooters are frequently left at the edge of curbs, but they sometimes are abandoned in places where they obstruct sidewalks or block building entrances.

Cities have adopted a hodgepodge of responses to the safety issues posed by the new phenomenon. For example, in August 2018, Santa Monica began a public safety campaign with Bird and Lime, two of the leading e-scooter suppliers. A month later, the city launched a pilot program intended to develop administrative regulations on shared scooters and bikes. (Santa Monica already has a longstanding rule prohibiting bikes and electric devices from sidewalks.)

The authors wrote that the Segway, a two-wheeled personal transporter that was introduced in the early 2000s, and a precursor of the scooters, also carried a serious risk for orthopedic and neurologic injuries.

Last fall, Governor Edmund G. Brown Jr. signed SB 1300 (Jackson; D-Santa Barbara), a comprehensive bill that makes several changes in the law for making sexual harassment claims.

The bill also amends FEHA to specify that an employer may be responsible for the acts of nonemployees for all forms of harassment, rather than the responsibility being limited to sexual harassment, as it was before SB 1300 took effect.

Further, the bill prohibits a prevailing defendant from being awarded fees and costs unless specific conditions are met.

SB 1300 prohibits employers from requiring employees to sign a release of claims under the Fair Employment and Housing Act (FEHA) in exchange for a raise or as a condition of employment.

These provisions took effect on January 1, but employers and defense counsel need to be aware of the bill’s “intent language.”

The broad “intent” language is likely inconsistent with canons of statutory construction and prior court precedent. As such, SB 1300’s intent language will surely increase employer costs as lawyers attempt to erroneously utilize the “findings and declarations” in SB 1300 to expand FEHA litigation.

The general rule of statutory construction is to effectuate the intent of the Legislature, which basically requires the courts to give the statutory language its usual and ordinary meaning. A statute is changed by a material amendment to the statutory language itself, but not by “legislative intent” language.

One intent declaration concerns the Legislature’s view about whether a single harassment incident still could be considered a violation of FEHA. To quote SB 1300: “the Legislature hereby declares its rejection of the United States Court of Appeals for the 9th Circuit’s [decision] and states that the opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of [FEHA].”

Yet, the author removed from her bill the statutory provisions that would have lowered the severe or pervasive standard.

Another declaration concerns the Legislature’s view that “harassment cases are rarely appropriate for disposition on summary judgment.” However, SB 1300 does not amend Code of Civil Procedure Section 437(c), which sets forth the requirements regarding motions for summary judgment. However, SB 1300 does not amend Code of Civil Procedure Section 437(c), which sets forth the requirements regarding motions for summary judgment.

Additionally, the intent language of SB 1300 seeks to lower the legal standard for hostile work environment claims by referring to a single quote by a single justice’s concurring opinion in a U.S. Supreme Court 9-0 decision: :the Legislature affirms its approval of the standard set forth by Justice Ruth Bader Ginsburg in her concurrence that, in a workplace harassment suit, ‘the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment.’”

Given that SB 1300 did not change the statutory standards for summary judgment and hostile work environment, the superfluous intent language in SB 1300 does not serve to provide guidance regarding either of these standards. As the U.S. Supreme Court has stated, “We are governed by laws, not by the intentions of legislators.”

A California Court of Appeal just made a sweeping change in California’s reporting time pay rules which now limits a common “on-call” scheduling practice used by employers throughout the state.

In 2012, Skylar Ward worked as a sales clerk in a Tilly’s, Inc., store in Torrance, California.

Under Tilly’s scheduling policy, Ward was required to call in approximately two hours before the start of her shift to determine whether she needed to come to work. If Tilly’s told her to report to work, she was required to do so and would be paid for that shift as normal. However, if Tilly’s informed her that there was no need to come in, Ms. Ward would receive no compensation.

Ward filed a putative class action complaint in 2015. The trial court sustained a demurrer without leave to amend, finding that by merely calling in to learn whether an employee will work a call-in shift, Ward and other employees do not report to work as contemplated by Wage Order 7. The court of appeal reversed in the published case of Ward v. Tilly’s, Inc.

The court held that merely calling in for one of these mandatory on-call shifts constitutes “report[ing] to work,” which entitled Ms. Ward and her coworkers to a minimum of two hours of reporting time pay under the applicable wage order.

Prior to the case, various courts had disagreed about what it truly meant to “report to work” within the context of this provision, with many courts – not to mention employers – understandably believing that this required the employee to physically report to the workplace location in order to be eligible for reporting time pay.

In relevant part, the court examined the language from the reporting time rule contained within Wage Order No. 7-2001 codified at California Code of Regulations, title 8, section 11070.

The court ultimately reasoned that even having to place a telephone call as part of a mandatory on-call schedule fell within this “reporting” rule for two main reasons. First, requiring reporting time pay would “require employers to internalize some of the costs of overscheduling, thus encouraging employers to accurately project their labor needs and to schedule accordingly.”

Second, it would also “compensate employees for the inconvenience and expense associated with making themselves available to work on-call shifts, including forgoing other employment, hiring caregivers for children or elders, and traveling to a worksite. In relying on these public policy considerations, the court aligned itself with prior California cases that tended to tie the compensability of worktime to the degree of employer control over an employee’s activities.

The court left several key questions unanswered. Most notably, the court failed to address the issue of whether its holding would apply retroactively – potentially exposing countless employers across the state that utilize similar on-call scheduling policies to staggering class action liability.

The court also neglected to address the inherent line-drawing problem contained within its decision; that is, how long before a shift could an employee call in and still have it constitute compensable reporting? If not two hours, then how long?

A federal grand jury indicted Dr. George David, a Freemont Psychiatrist, and Linda Nguyen with conspiracy to commit mail fraud and substantive mail fraud.

According to the indictment filed January 29, 2019, and unsealed in February, David, 78, and Nguyen, 66, of Union City, engaged in a scheme to defraud California’s State Disability Insurance (SDI) program.

The SDI program is designed to provide partial wage replacement benefits to eligible California workers who are unable to work due to a non-work-related illness, injury, or pregnancy.

To receive SDI benefits, a claimant must file a claim for benefits supported by a Physician/Practitioner Certification attesting to the claimant’s disability.

According to the indictment, David provided fraudulent Physician/Practitioner Certifications to support fraudulent SDI applications for non-disabled claimants. In addition, the indictment alleges that Nguyen facilitated the fraud by assisting non-disabled persons with the execution and submission of fraudulent documents.

The indictment further alleges that Nguyen charged the non-disabled persons for processing their fraudulent applications. In sum, the defendants each were charged with one count of conspiracy to commit mail fraud, in violation of 18 U.S.C. § 1349, and one count of substantive mail fraud, in violation of 18 U.S.C. § 1341.

The defendants were arrested and made their initial appearances before U.S. Magistrate Judge Donna M. Ryu. Both defendants were released on bond. Magistrate Judge Ryu scheduled David’s and Nguyen’s next appearances for February 8 and February 15, 2019, respectively, for arraignment and identification of counsel.

If found guilty, the defendants face a maximum statutory sentence of 20 years in prison for each count in the indictment. However, any sentence following conviction would be imposed by the court after consideration of the U.S. Sentencing Guidelines and the federal statute governing the imposition of a sentence, 18 U.S.C. § 3553.

Special Assistant U.S. Attorney Christopher Vieira is prosecuting the case with the assistance of Kimberly Richardson. The prosecution is the result of an investigation by the FBI and Social Security Administration Office of the Inspector General.

As the first company to offer telehealth in the workers’ compensation space, there was no roadmap to follow. Since adding telehealth services in 2015, CorVel has now completed 10,000 virtual visits. With this significant milestone, David Lupinsky, CorVel’s Vice President of Medical Review Services reported on a few of the lessons the company learned:

In order to make telehealth equally efficacious to the brick and mortar visit, it needed to offer the same features patients have come to expect, value, and appreciate. Immediate access to medical services such as physical therapy, diagnostics imaging, pharmacotherapy, and durable medical equipment are essential to a successful telehealth offering.

Telehealth physicians have prescribed medications, ordered vaccines, requested durable medical equipment, and scheduled short term physical therapy and diagnostic imaging when clinically appropriate.

Brick and mortar evaluations take 4+ hours on average, factoring travel and wait times, while virtual visits last an average 30 minutes from start to finish. And though it is customary for injured employees to wait 1-2 days for the claim to be completely set up before receiving treatment, telehealth provides appropriate clinical care within minutes of the injury. Moreover, all claims data obtained through virtual visits is loaded into CareMC, its claims management technology, making the information immediately and easily accessible for all constituents.

Interdisciplinary care is defined by its multi-specialty shared relationships and common goals. While it’s appropriate to have multiple team members and providers working on a claim, CorVel has learned the importance of working towards a shared goal of providing timely, appropriate care for injured workers.

To ensure consistent protocols and concordance with each case, it has a dedicated medical director who oversees telehealth physicians and maintains communication with the nursing director. Communication between the claims intake department (FNOL), triage nurse, and treating telehealth physician significantly reduces duplication of services and thus patient wait times, patient frustration, and coding errors.

As a result of an integrated and shared database, all data captured by its 24/7 nurse triage and telehealth services can be accessed by both its FNOL intake team and our adjusters in real time. This is crucial to minimizing talk time, ensuring consistency, and maximizing the patient experience.

With telehealth becoming more popular in “mainstream healthcare”, it is now an expectation for injured employees. Since patients expect a telehealth platform to provide these services, it’s essential they be delivered in a coordinated fashion with updated clinical notes available to the providers on follow up visits to maintain an equal or superior standard of care to brick and mortar outcomes.

Healthcare is evolving and at the core of its change is data and artificial intelligence (AI). At CorVel, it has utilized AI with the Edge, its completely modernized claims management portal. The Edge takes claims data from a variety of sources, including bill review and pharmacy, to identify potential risk for certain claims and push out telehealth visits to mitigate the risk.

The real cost of a “minor” injury can significantly change when viewed in the context of medications, psychosocial factors, testing, and opioids. Automatic identification of these proprietary factors can elevate this case to higher acuity and a telehealth visit can be pushed out to the patient for a collaborative and holistic approach to care that can be implemented while working in tandem with other treating physician already involved in the patient’s care.

Being able to integrate this data into its claims management platform has allowed CorVel to prevent many minor injuries from becoming expensive claims. Read Corvel’s recent white paper, Breaking Down Barriers, to learn more about its approach to telehealth in performance-based networks.