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Study Claims Majority of Workers Favor Remote Work

American employees say that the number one workplace feature they’ll be searching for post-COVID is the ability to continue working remotely when they please.

That’s according to a new study reported by StudyFinds.org of 2,000 Americans who are still working from home during the pandemic. More than two in five (48%) say a company’s policy on remote work is now their number one desired workplace perk. It’s so important that nearly three in four (72%) claim they wouldn’t even consider working for a company that didn’t offer flexible work-from-home policies.

Although 36 percent think their job is more difficult when working remotely, 71 percent say they have a better work-life balance when working from home. Employees are happiest with the new flexibility in their schedules (45%) and the ability to take breaks anytime (44%), with the average person taking a break around every two and a half hours.

Over half the poll (51%) feel like their workplace contributions have been acknowledged more since they started working from home.

“People are embracing remote work more than ever before. Workplace norms have shifted and employees are expecting to have a more robust work-life balance,” says Dave Landa, CEO of Kintone, in a statement.

Unfortunately, working from home hasn’t been all rainbows and butterflies for employees. From not having the right office equipment (35%), to having difficulty communicating with coworkers (36%), or having too many distractions (34%), working from home isn’t a flawless system for many.

Employees also say they would like to purchase an internet upgrade (48%), a new computer (40%), or a new desk or workstation (38%) to improve their remote work experience. One in five (22%) expressed dissatisfaction with their company meeting employee needs while working from home.

Americans weren’t shy about suggesting ways their company could help improve their work from home experience. Almost half think adjusted company policies, including working hours and expectations (46%) would make a difference in their performance. Other ways that companies can make working from home better is by reimbursing their employees for internet service or other utility bills (43%) or providing a new computer or laptop (41%).

Communication is key for half of respondents (52%) who feel like their company can benefit from communicating more directly with employees. Almost six in 10 (57%) feel work-related communication was more productive in the office and 36 percent feel it has been a strain to effectively communicate with their leadership about career matters.

Every major transformation like this comes with hurdles and uncertainties. In the end, the benefits of happier, more satisfied employees will justify the efforts to address these challenges head on. Employers should create policies and find solutions to meet these concerns and strengthen communications so that remote and hybrid work experiences will only improve in the post-pandemic era,’ Landa adds.

SuperCare Health Resolves Fraud Claim for $3.31M

The California Attorney General announced a $3.31 million settlement against home respiratory services company, SuperCare Health Inc. for defrauding the state and federal government by knowingly billing Medicare and Medi-Cal for servicing ventilators that were no longer medically necessary.

The proposed settlement resolves allegations that the Downey-based company submitted fraudulent claims to Medi-Cal in violation of the state and federal False Claims Acts.

Under the proposed settlement, SuperCare will pay a total of $3.31 million to multiple government plaintiffs, with California receiving approximately $327,000.

SuperCare sells and rents equipment used in the treatment of breathing-related disorders, such as sleep apnea and chronic obstructive pulmonary disease. One of the machines used to assist patients with breathing is the non-invasive ventilator. The ventilators, either with or without oxygen, deliver pressurized air to patients to assist in the breathing process, particularly during sleep.

A whistleblower alleged that SuperCare, which services patients in Southern California and Nevada, continued to service non-invasive ventilators that were no longer being used by patients, and were not medically necessary, and therefore no longer eligible for Medi-Cal reimbursement. Despite this knowledge, the company billed Medicare and Medi-Cal for servicing the ventilators. The whistleblower filed his case in the United States District Court for the Central District of California.

A subsequent three-year investigation by the California Department of Justice’s Division of Medi-Cal Fraud and Elder Abuse (DMFEA), working with the United States Attorney’s Office for the Central District of California and the Nevada Medicaid Fraud Control Unit, found that claims submitted by SuperCare from May 2013 through October 2019 validated the whistleblower’s claims.

Through the DMFEA, the California Department of Justice works to protect Californians by investigating and prosecuting those who perpetrate fraud on the Medi-Cal program. DMFEA also investigates and prosecutes those responsible for abuse, neglect, and fraud committed against elderly and dependent adults in the state. The Division regularly works with whistleblowers and law enforcement agencies to investigate and prosecute crimes.

The DMFEA receives 75% of its funding from the U.S. Department of Health and Human Services under a grant award totaling $41,264,032 for federal fiscal year 2020-2021. The remaining 25%, totaling $13,754,675 for fiscal year 2020-2021, is funded by the State of California. The federal fiscal year is defined as October 1, 2020, through September 30, 2021.

When is a Roommate a Partial “Dependent” for Death Benefits?

Decedent Tara O’Sullivan, worked as a police officer for the City of Sacramento when she died from a gunshot wound on June 19, 2019.

Krista Horvath and Ms. O’Sullivan were sisters. Just prior to her death, decedent and Ms. Horvath agreed to move in together with Ms. Horvath’s fiancé. This would allow Ms. Horvath to save money for her planned wedding. They had signed a lease before the death, and intended to split the utility bills in half.

The Death Without Dependents Unit primarily argued at trial that Ms. Horvath would merely have been a roommate of decedent and that sharing the bills as part of a family pot is insufficient to establish dependency.

A Findings and Order issued which found that competing applicant, Krista Horvath was a partial dependent of deceased employee Tara O’Sullivan, and dismissed the claim of the Death Without Dependents Unit.

The WCAB panel denied the Death Without Dependents Unit Petition for Reconsideration in the panel decision of Krista Horvath for Tara O’Sullivan (Deceased), Death Without Dependents v. City OF Sacramento, (ADJ12601349)

Dependency is determined as of the time of injury, and may be found to be total or partial, depending on the facts established. Dependency may be defined as reliance upon another person for support. Partial dependents are those who at the time of injury have means of support other than the deceased’s contributions.

To prove partial dependency, it is sufficient to show that the claimants looked to the deceased’s contributions to maintain his or her accustomed mode of living and that the same living standard can no longer be maintained. (Atlantic Ricl1field Co. v. WCAB (Arvisu) (1982) (42 Cal.Comp.Cases 369) The contribution must be made in goods or money, and the value of services is not considered. (Great W. Power Co. v. IAC (Savercool) (1923) 192 Cal. 724.)

Death Without Dependents primarily argued at trial that applicant would merely have been a roommate of decedent and that sharing the bills as part of a family pot is insufficient to establish dependency.

While this is true, the facts establish that decedent intended to take on a greater share of the family pot so that applicant could save for her wedding.

If only applicant and decedent lived together, the splitting of rent and utilities would likely be insufficient to establish dependency as it is a true family pot with equal expenses split.

However, here, three people were to occupy the apartment, not two. Decedent agreed, in effect, to subsidize applicant’s rent and utilities. That agreement is sufficient to establish a partial dependency where the applicant is decedent’s sister.

The petition for reconsideration focuses on the undisputed facts that this was a promise for support prior to decedent s passing and that no actual support occurred prior to death. On this point, the argument proffered by DWD was too narrow.

A mere promise of future support is not, as a rule, a basis for a dependency finding, except where circumstances indicate a bona fide assumption of responsibility for support without opportunity to make contributions prior to the injury.” (Wings West Airlines v. Workers’ Comp. Appeals Bd. (1986) 187 Cal. App. 3d 1047, 1052.)

The significant fact here is that they signed a lease together prior to Ms. O’Sullivan’s death. By signing a lease contract, there was a bona fide assumption of responsibility for support, which occurred prior to death. The only reason that Ms. O’Sullivan did not make payments prior to her death was lack of opportunity.

WCAB Panel Rejects VR Total Disability Citing Hegglin Rule

Brenda Lee sustained an industrial injury on July 21, 2014 to her back, hips and left leg while employed by the Employment Development Department. Her case was resolved on May 14, 2018 by stipulation for 20% permanent disability based upon the rating of 50% (15.03.01.00 – 28 – 39 – 112D – 33 – 40) 20%.

Less than two months later, (July 6 2018), Lee filed a Petition to Reopen and subsequently obtained a vocational evaluation with Frank Diaz who opined that Lee was unable to return to work in the open labor market.

Dr. McGahan served as the panel qualified medical examiner. In his April 19, 2019 report Dr. McGahan found applicant to be TTD as she had recently has a spinal fusion. He re-evaluated applicant on October 30, 2019 and found applicant to be permanent and stationary at the time of evaluation. He opined that applicant continued to have 28% WPI and also found that applicant had a 3% impairment for her right and left hip due to her industrially related bursitis. He specifically mentioned that applicant’s osteoarthritis of the hips was not due to the industrial injury.

The WCJ found that Lee sustained 26% permanent disability based upon the PQME reporting of Dr. McGahan and that the reporting of the vocational evaluator was not substantial evidence to be relied upon.

The WCAB denied her Petition for Reconsideration in the panel decision of Lee v California Employment Development Department.

The issue in this case is whether applicant’s vocational evidence constitutes substantial evidence to support the conclusion that applicant was permanently totally disabled due to her inability to benefit from vocational rehabilitation.

Throughout Dr. McGahan’s reporting, applicant’s work restrictions remained essentially the same. Lee was required to alternate sitting and standing every 10 minutes, no lifting, pushing, or pulling greater than 20 pounds, and a 10-minute break every hour. Dr. McGahan later added a restriction of no repetitive bending and squatting.

Mr. Diaz interpreted this restriction as follows: “Ms. Lee’s need to take ten (10) minute breaks every hour is significantly labor disabling as she would require breaks totaling eighty (80) minutes per day. Ms. Lee’s need to take a ten (10) minute break every hour and potentially leave her work station during these breaks could not be readily accommodated in the open labor market.

However, in his May 24, 2017 report Dr. McGahan explained the restriction as needing to “alternate tasks as well as stretching. I do not believe that Ms. Lee has to clock out and take an off the clock break. It is my professional opinion that through an alternate task with an allowance for stretching, she would be able to accomplish this break while on the clock.”

Mr. Diaz did not review the May 24, 2017 report by Dr. McGahan and was therefore unaware of this important distinction in the restriction.

In Hegglin v. Workmen’s Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93, 97 the panel noted that “reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Appeals Board’s findings if it is based on surmise, speculation, conjecture or guess.”

Mr. Diaz’s vocational evaluation was not substantial evidence on the issue of permanent disability in part because Mr. Diaz’s reporting was based upon a misinterpretation of applicant’s work restrictions.

WCAB Considers New Rules of Practice and Procedure

The Workers’ Compensation Appeals Board has issued a notice of public hearing regarding proposed additions and amendments to its Rules of Practice and Procedure.

The online public hearing is scheduled to begin at 9 a.m. on Friday, September 24 via the Zoom meeting platform.

Members of the public may also submit written comments until 4 p.m. that day using this submission form. If written comments are timely submitted, it is not necessary to present oral comments at the public hearing.

The primary purpose of this rulemaking is to formalize the processes for the remote hearings, electronic filing, and electronic service that developed during the novel coronavirus pandemic.

The WCAB’s notice of the proposed rulemaking, the text of the proposed regulations, and the initial statement of reasons can be found on its rulemaking page.

Equal weight will be accorded to oral and written comments. However, the WCAB prefers written comments submitted electronically, which must be submitted using the comment submission form. Electronic comments submitted in any other format will not be accepted or considered.

Written comments may also be submitted by mail to the address below. Hard copy comments should consist only of text-based narratives, should not contain any other formatting such as letterheads or graphics, and should not rely on the use of color or images to convey information not conveyed in the text-based narrative. Improperly formatted hard-copy documents will be subject to rejection and may not be accepted or considered.

Workers’ Compensation Appeals Board
Attention: Julie Podbereski, Regulations Coordinator
455 Golden Gate Avenue
Ninth Floor
San Francisco, CA 94102

The WCAB will consider all properly submitted comments and encourages all interested members of the workers’ compensation community to participate in this important process.

To attend the online public hearing or present statements or arguments orally, please use the following link:

https://dir-ca-gov.zoom.us/j/85768405804?pwd=ckZwdkRrZk82eHk4M2tpTVlvaldwUT09
Password: 211916

Stakeholders Continue to See Benefits in Telemedicine

According to a recent study by McKinsey, consumer interest in telemedicine rose from 11% to 76% during the pandemic, 57% of healthcare providers said they viewed telemedicine more favorably, and 64% of providers are comfortable using telemedicine. In the course of just a few months, telemedicine physician visits rose 50 – 175x, depending on geography and type of practice.

Telehealth has helped expand access to care at a time when the pandemic has severely restricted patients’ ability to see their doctors. Actions taken by health-care leaders today will determine if the full potential of telehealth is realized after the crisis has passed.

The types of changes made by the states (and CMS, which guides rules for some states) vary and include: allowing additional services to be delivered via tele technologies; relaxing provider licensing requirements; amending reimbursement rules (often reimbursing at the higher office visit rates to encourage telemedicine use); and allowing different modes of technology, such as audio-only calls.

Exactly which medical services can be effectively delivered through telemedicine is also yet to be determined. Currently, fewer than 100 medical services are approved for telemedicine by CMS, which is a small fraction of the 8,000+ services covered by Medicare and Medicaid.

For workers’s compensation claims, the lest of benefits for use of telemedicine include:

– – Reduce care delays and improve access to timely care
– – Increase provider options, especially in rural areas
– – Compensate for physician shortages, especially in rural areas
– – Reduce time away from work for employee healthcare visits
– – Mitigate transportation issues
– – Quick and convenient access to physical therapy
– – Expand availability of mental and behavioral health therapy
– – Lower costs for payers and employers
– – Increased patient satisfaction

In workers’ comp, telemedicine also gained wider acceptance during the pandemic as many states relaxed restrictions regarding its use for injured worker patients.

Many of the legal and regulatory changes regarding telemedicine are temporary, and it remains to be seen which will become permanent and where.

Judge Declares Gig Employer Prop 22 Law Unconstitutional

Proposition 22, California’s gig workers law, which allows companies like Uber and Lyft to treat workers as independent contractors – not employees – has been ruled unconstitutional and unenforceable by a Superior Court judge.

Voters approved the law as ballot initiative Proposition 22 in November, with companies like Uber, Lyft and DoorDash spending more than $200 million to campaign for the measure. Labor organizations, including the Service Employees International Union, opposed it.

Proposition 22 passed with 59% of the vote and was backed by a 4-1 margin by rideshare drivers who favored the flexibility given to them by the law.

In January, a group of Uber and Lyft drivers, along with the SEIU, filed a lawsuit seeking to have the measure overturned. The law exempts gig employers from providing benefits and protections to workers, but requires that they offer healthcare subsidies and minimum hourly earnings.

California Superior Court Judge Frank Roesch issued a ruling late Friday, that the law illegally “limits the power of a future legislature to define app-based drivers as workers subject to workers’ compensation law,” adding that “The entirety of Proposition 22 is unenforceable.” He also ruled that it was unconstitutional to that the law required any future amendments to have a seven-eighths vote of approval to pass the legislature.

Judge Roesch took issue with the part of the law that requires any future California state law concerning collective bargaining for gig workers to comply with the Prop 22 law. “It appears only to protect the economic interest of the network companies in having a divided, ununionized workforce, which is not a stated goal of the legislation,” he wrote.

However all of the provisions of Prop 22 will remain in effect until the appeal process is complete.

Geoff Vetter, a spokesperson for the Protect App-Based Drivers and Services Coalition (PADS), which includes Uber, Lyft, DoorDash, and Instacart, said in a statement emailed to The Verge that they plan to appeal. The judge “made a serious error by ignoring a century’s worth of case law requiring the courts to guard the voters’ right of initiative,” Vetter wrote, noting that a majority of California voters had approved the measure.

Bob Schoonover, president of SEIU California State Council praised the judge’s ruling in a statement emailed to The Verge.

The ruling caused investors to dump shares of both companies, with Lyft declining as much as 4% and Uber falling up to 2.77% by Monday.

Both companies are supporting a similar measure in Massachusetts that is expected to be on the ballot next year. New York is also looking into the matter.

Supreme Court Clarifies and Limits Privette Doctrine

The 1993 case which created the “Privette” doctrine, set forth a strong presumption under California law that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety. This means that a hirer is typically not liable for injuries sustained by an independent contractor or its workers while on the job.

One of the three rationales for this doctrine is that contractors are able to obtain workers’ compensation to cover any on-the-job injuries.

Courts have nevertheless identified two limited circumstances in which the presumption is overcome.

First, in Hooker v. Department of Transportation (2002) 27 Cal.4th 198 (Hooker), it was held that a hirer may be liable when it retains control over any part of the independent contractor’s work and negligently exercises that retained control in a manner that affirmatively contributes to the worker’s injury.

Second, in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 (Kinsman), it was held that a landowner who hires an independent contractor may be liable if the landowner knew, or should have known, of a concealed hazard on the property that the contractor did not know of and could not have reasonably discovered, and the landowner failed to warn the contractor of the hazard.

In the present case before the Supreme Court, defendant John Mathis lives in a one-story house with a flat, sand-and-gravel roof. The roof contains a large skylight covering an indoor pool. Plaintiff Luis Gonzalez is a professional window washer who first started cleaning Mathis’s skylight in the 1990s as an employee of Beverly Hills Window Cleaning. In the mid-2000s, Gonzalez started his own professional window washing company. He was injured in a slip and fall accident while walking on Mathis’s roof.

Gonzalez filed suit against Mathis claiming the roof was slippery, with no tie-off points to attach safety harnesses, and no safety walls. Gonzalez testified that he knew of these conditions that deteriorated over time. The trial court granted Mathis’s motion for summary judgment, finding that Mathis owed no duty to Gonzalez pursuant to the Privette doctrine.

The Court of Appeal reversed and in effect added a third exception to the Privette Doctrine.

The California Supreme Court declined to add a third exception and thus reversed the Court of Appeal n the case of Gonzalez v Mathis.

This case compelled the Supreme Court to answer a simple but important question: If there is a known hazard on a property that the independent contractor cannot remedy or protect against through the adoption of reasonable safety precautions, and the contractor or one of its workers is injured after proceeding to do the work anyway, is the landowner liable to the contractor in tort?

The Court concluded that, pursuant to Privette’s strong presumption that a hirer delegates to an independent contractor all responsibility for workplace safety, a landowner owes no duty to the contractor or its workers to remedy a known hazard on the premises or take other measures that might provide protection against the hazard.

State Audit Shows $72B Covid Funding Mismanagement

State law authorizes the California State Auditor to develop a state high-risk government agency audit program.  The office implemented this program to improve the operation of state government by identifying, auditing, and recommending improvements to state agencies and statewide issues at high risk for waste, fraud, abuse, or mismanagement or for having major challenges associated with their economy, efficiency, or effectiveness.

It first designated the State’s management of federal funds related to COVID-19 as a high-risk statewide issue in August 2020 based on the significant amount of funding granted to the State, the urgent need for the funding, and the rapid nature of the allocation of this funding to state departments, among other factors

In the new August 19 report, the State Auditor Elaine Howle voiced concern regarding the state’s mismanagement of $71 billion in federal COVID-19 funding.

An audit report released on Thursday indicated that the state’s Finance, Employment Development and Public Health departments should remain at the top of the list of issues which pose a risk to the state’s financial health as a result of mismanagement.

It reported in January 2021 (2020-628.2) that significant weaknesses in EDD’s approach to fraud prevention had led to billions of dollars in improper unemployment benefit payments. EDD did not take substantive action to bolster its fraud detection efforts for its unemployment insurance program until months into the pandemic, resulting in payments of about $10.4 billion for claims that it has since determined may be fraudulent. Specifically, EDD waited about four months to automate a key antifraud measure, took incomplete action against claims filed from suspicious addresses, and removed a key safeguard against improper payments without fully understanding the significance of the safeguard.

In September 2020, because of fraud concerns, EDD directed Bank of America to freeze 344,000 debit cards (accounts) that it used to provide benefit payments to claimants. However, EDD did not have a plan in place to ensure that it could unfreeze those accounts found to belong to legitimate claimants, and it has been slow to acknowledge its role in freezing these accounts.

In January 2021, it reported (2020-610) that Finance’s allocation of funds from the federal Coronavirus Relief Fund (CRF) had resulted in smaller counties receiving significantly less funding per person than larger counties. Finance’s inequitable allocation of CRF funds increased the risk that smaller counties’ COVID-19 related funding needs were unmet.

Its April 2021 audit (2020-612) of Public Health’s oversight of approximately $467 million in federal COVID-19 funding found that, although the State met or exceeded targets for testing individuals for COVID-19, contact tracing throughout the State lagged behind case surges that far exceeded the department’s initial planning. Fewer-than-expected tracing staff and an influx of new cases resulted in only a small fraction of COVID-19 cases undergoing the full contact-tracing process. Because of the mismanagement of federal COVID-19 funds by several state agencies, it remains a high-risk statewide issue.

The updated August 2021report indicted that these three departments were to be “retained on the high risk list.”

Musk Announced “Teslabot” Humanoid Worker by Next Year

In an online event, Tesla’s CEO announced some projects for the future, including a prototype of a humanoid robot that should arrive (in prototype) by next year.

Noting that Tesla is “much more than an electric car company,” this Teslabot prototype will be the beginning of the creation of a machine that will replace workers in many tasks that are repetitive, dangerous or boring.

While Musk only presented an image of the robot during the event, the company already has a solid vision of what the machine will look like.

He underscored that the robot will be “friendly” and at a mechanical and physical level “you can run away from it,” and “most likely overpower it.”

It will stand at 5’8″ tall and weigh 125 pounds, thanks to the use of lightweight materials for its body, with a screen for a face that it can use to display useful information. The machine will be able to move with a top speed of 5mph, which is just a bit faster than the average human walking speed, and will have the capacity to carry loads of up to 45 pounds.

It will be designed to do various dangerous and repetitive tasks for humans and navigate our world without having to be fed step-by-step instructions.

Musk said it should be able to follow simple commands, like “Please pick up that bolt and attach it to the car with that wrench.” It should also be able to get groceries for owners and perform other menial tasks.

Arguing that the foundation of economy is labor, Musk mused about a universal basic income and a world in which “physical work will be a choice, if you want to you can do it but you won’t need to.” Ideally, it would do boring, repetitive and dangerous jobs.

The Tesla AI team developed an AI chip with the lowest latency possible and extremely high bandwidth deployed in a supercomputer called the Exapod.

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