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Category: Daily News

California COVID Prevalence Rate Now Lowest in Nation

The delta variant of the coronavirus roared into California midsummer, striking hard even in places where many people were vaccinated. Cases spiked. Hospitals again began to swell with patients. The daily death toll climbed into the triple digits for the first time in months.

But after a season in which the highly transmissible variant wreaked havoc on the nation, the Washington Post reports that California is reporting sustained progress against delta. And this is also good news for workers’ compensation claims in the state.

Earlier this week, California dropped from “high” to “substantial” virus spread, according to the Centers for Disease Control and Prevention. It later bounced back up, but total new cases per 100,000 residents are still lower than any other state. The change in CDC designation – a barometer of how well states are doing in combating the virus – was celebrated by public health officials, who suggested it was a signal that California could be close to a turning point.

An aggressive push for vaccines, coupled with masks mandates at the local level and a public largely willing to go along with them, appear to have helped flatten the state’s curve, experts said.

“California, as compared to many other states in the nation, took rapid steps to recognize the extent of the problem and to apply more covid control measures,” said Robert Kim-Farley, a infectious-disease expert at UCLA Fielding School of Public Health. “I think if California had not taken these steps to curb transmission, we could have ended up with much higher levels.”

The fight against delta is far from over in the Golden State, which still faces a host of challenges in containing cases. Though infections have dropped in California’s population hubs in recent weeks, they remain high in parts of the Central Valley and rural north. An influx of patients has overwhelmed some intensive care units in those regions.

Compounding the problem, California hospitals are facing staffing shortages. Medical workers have struggled with burnout, and surges in other states have created intense competition for nurses, said Bryan Bucklew, president and chief executive of Hospital Council of Northern & Central California, a nonprofit trade association.

“The numbers may be flattening, but the impact to the health-care system is extremely challenging,” he said. “We have a good handle on how to treat covid, with monoclonal antibodies, vaccines. We just have a lot less staff. It’s more of a workforce issue for us than a covid issue.”

Statewide, infections are still far higher than they were early in the summer, averaging about 9,300 new cases per day compared with 758 on July according to tracking by The Washington Post.

But they’re down from a summer peak of about 14,400 per day on average, the data shows. Hospitalizations have fallen statewide by about 10 percent over the past week. Positivity rates have also dropped recently, at a time when the state is administering more tests than at almost any point in the pandemic – another indicator that the spread is slowing.

At its worst point over the summer, cases per 100,000 people in California rose to about 35 per day on average, according to The Post’s analysis of state data. In Florida, where the governor has sought to ban public health mandates, per capita cases topped 100 during the peak of infections, and in Texas they’ve hovered around 60 for weeks, the data shows.

As of Thursday, California had 24 cases per 100,000 residents, less than half as many as Florida, with 55 per capita, and Texas with 59, according to The Post’s data.

John Swartzberg, an infectious-disease expert at the University of California at Berkeley, said California has benefited from a population that’s generally receptive to public health directives. He said the attitude was rooted in the public health response to the AIDS crisis in the early 1980s.

Visalia Employer Arraigned on $2.5M Insurance Fraud

Zachary Navo, 38, of Visalia, was arraigned on five felony counts of insurance fraud after a Department of Insurance investigation revealed he allegedly underreported wages by over $2.5 million in an attempt to fraudulently reduce workers’ compensation premium payments, resulting in a loss of over $135,000 to his insurance companies.

In December 2017, State Compensation Insurance Fund (SCIF) issued Navo a workers’ compensation insurance policy for his private security business, Element Security Solutions, Inc.

In June 2018, Navo completed a payroll report indicating he had $80,500 in payroll for the first six months of the policy period. Navo failed to submit subsequent payroll information and failed to comply with an end of policy audit.

During the investigation, a review of Employment Development Department (EDD) records for the twelve-month policy period revealed $2,098,394 in payroll was reported to EDD for Element Security Solutions, Inc., which revealed an underreporting of approximately $2 million in payroll to SCIF.

The underreporting resulted in a $134,761 loss in premium owed to SCIF.

Investigators also discovered that Navo is a licensed insurance agent and owns a secondary entity, Navo Financial, Inc., an insurance and financial solutions business, in which Navo reported $504,302 in payroll from 2016 to 2019. However, EDD records for the period of 2016 to 2019, found Navo reported $1,047,482 in payroll to EDD for Navo Financial, Inc., demonstrating an underreporting of $543,180 in payroll and resulting in a $1,164 loss to a different insurance company.

This case is being prosecuted by the Tulare County District Attorney’s Office.

9th Circuit Reverses Injunction on Employer Arbitration Ban Law

Back in 2019, Governor Gavin Newsom signed Assembly Bill 51 (Cal. Lab. Code §§ 432.6(a)–(c), 433; Cal. Gov’t Code § 12953), which effectively outlawed mandatory arbitration agreements with employees – a new version of a bill that prior Governor Jerry Brown had vetoed repeatedly while he was in office.

The law allows workers to pursue damages and attorneys’ fees and open criminal cases against employers who discriminate and retaliate against them for declining arbitration contracts.

The contentious bill bars employers from requiring applicants to waive their right to sue under state labor laws as a condition of employment. Going a step further, the bill sponsored by the California Labor Federation and Consumer Attorneys of California opened employers up to civil and criminal penalties for extreme violations.

A federal judge enjoined the state from enforcing Assembly Bill 51 last year, agreeing with the Chamber of Commerce and other employers that it was pre-empted by the Federal Arbitration Act. The decision was hailed by the coalition of business groups who accused California lawmakers of trying to weaken the common tool used to keep employment disputes out of the courts.

In the case of Chamber of Commerce v Rob Bonta, the Attorney General of the State of California, the Ninth Circuit panel ruled in a 2-1 decision, that the state can require all employment arbitration agreements be consensual and reversed the preliminary injunction. It found AB 51 doesn’t discriminate against arbitration agreements or nix their enforcement.

“In light of Congress’ clear purpose to ensure the validity and enforcement of consensual arbitration agreements according to their terms, it is difficult to see how [AB 51], which in no way affects the validity and enforceability of such agreements, could stand as an obstacle to the FAA,” U.S. Circuit Judge Carlos Lucero, a Bill Clinton appointee sitting by designation from the 10th Circuit, wrote for the majority.

U.S. Circuit Judge Sandra Segal Ikuta, a George W. Bush appointee, wrote a dissenting opinion. She commenced her dissent by claiming “Like a classic clown bop bag, no matter how many times California is smacked down for violating the Federal Arbitration Act (FAA), the state bounces back with even more creative methods to sidestep the FAA”.

“And today the majority abets California’s attempt to evade the FAA and the Supreme Court’s caselaw by upholding this anti-arbitration law on the pretext that it bars only nonconsensual agreements. The majority’s ruling conflicts with the Supreme Court’s clear guidance in Kindred Nursing Centers Ltd. Partnership v. Clark, 137 S. Ct. 1421, 1428–29 (2017), and creates a circuit split with the First and Fourth Circuits. Because AB 51 is a blatant attack on arbitration agreements, contrary to both the FAA and longstanding Supreme Court precedent, I dissent. “

According to a report in Courthouse News, the Chamber of Commerce signaled it could appeal.

“The majority decision is clearly wrong, violates U.S. Supreme Court precedent and runs contrary to decisions of many other courts,” said Daryl Joseffer, chief counsel for the chamber, in an email. “The U.S. Chamber will pursue further review of this flawed decision.”

TD and PD Rates Remain Unchanged for 2022

The Division of Workers’ Compensation announced that the 2022 minimum and maximum temporary total disability (TTD) rates will not change.

The minimum TTD will remain $203.44 and the maximum TTD rate will remain $1,356.31 per week.

Labor Code Section 4453(a) (10) requires the maximum and minimum weekly earnings upon which TTD is based be increased by an amount equal to percentage increase in the State Average Weekly Wage (SAWW) as compared to the prior year.

The SAWW is defined as the average weekly wage paid to employees covered by unemployment insurance as reported by the U.S. Department of Labor for California for the 12 months ending March 31 in the year preceding the injury.

In the 12 months ending March 31, 2021, the SAWW declined from $1,383 to $1,164. Therefore, the maximum average weekly wage considered for temporary disability rate will remain $2,034.47 (2/3 to produce a $1,356.31 weekly rate) and the minimum average weekly wage considered for temporary disability rate will remain $305.16 (2/3 to produce $203.44 weekly rate). The TTD minimum and maximum rates for 2022 are unchanged.

It is interesting that the Labor Code provides for an increase in rates if the SAWW increases, but no provision in the event of a decrease.

Under Labor Code Section 4659(c), workers with a date of injury on or after January 1, 2003 who are receiving life pension (LP) or permanent total disability (PTD) benefits are also entitled to have their weekly LP or PTD rate adjusted based on the SAWW. The decline in the SAWW dictates these rates also remain unchanged.

SAWW figures may be verified using the U.S. Department of Labor’s unemployment insurance database.

California Supreme Court Affirms Privette Rule – Again!

Earlier this summer, the California Supreme Court declined to add a third exception to the Privette rule, and thus reversed the Court of Appeal n the case of Gonzalez v Mathis. A month later, it reviewed the rule once again, and reversed a multi-million dollar jury verdict against Qualcomm.

In this new case, Qualcomm planned to upgrade its onsite turbine generators at its San Diego campus in 2013. In order to accommodate this upgrade, Qualcomm hired TransPower Testing, Inc., an electrical engineering service company, to inspect and verify the amperage capacity of Qualcomm’s existing switchgear equipment.

Frank Sharghi, TransPower’s president, is a licensed electrical engineer and had worked on that switchgear at least monthly for nearly 20 years, since before Qualcomm acquired the campus.

After Sharghi was unable to locate some of the busbars in the “main cogen: circuit during one inspection, Sharghi hired Jose M Sandoval – an electrical parts supply and repair specialist with ROS Electrical Supply & Equipment – to accompany him at a second inspection.

For this second inspection, Qualcomm approved a scope of work authorizing TransPower to inspect the main cogen circuit from the front and back.On the morning of the second inspection, the team attended a safety briefing led by Qualcomm plant operator, and the team was reminded that some circuits in the switchgear would remain live.

At some point during this inspection, Sandoval walked away from the rest of the TransPower team. Sandoval would later recall that he was having trouble judging the size of some of the main cogen busbars from the front side of the cabinet, and he thought he might be able to get a better view from the back.

Sandoval asked a fellow worker to hold a flashlight as they both approached the back side of the cabinets. Sandoval was holding a metal tape measure which triggered an arc flash from the live, exposed circuit. The 4,160-volt arc flash – thousands of degrees in temperature – had set him aflame, and he suffered serious injury.

Sandoval filed suit against Qualcomm, TransPower, and ROS Electrical Supply, asserting claims for negligence and premises liability. Qualcomm moved for summary judgment on the basis that the presumption of delegation should shield it from liability here. Denying the motion, the trial court proceeded to trial, and a jury awarded Sandoval over $1 million in past and future medical expenses and $6 million in noneconomic damages. It apportioned the fault 46 percent to Qualcomm, 45 percent to TransPower, and 9 percent to Sandoval.

The Court of Appeal affirmed. However the California Supreme Court reversed in the case of Sandoval v Qualcomm.

Strong public policy considerations readily acknowledged in our past decisions generally support a straightforward presumption about the responsibilities of hirers and contractors for worker injuries in situations like this: A person or entity hiring an independent contractor (a “hirer”) ordinarily delegates to that independent contractor all responsibility for the safety of the contractor’s workers.”

“This presumption is rooted in hirers’ reasons for employing contractors in the first place, and society’s need for clear rules about who’s responsible for avoiding harms to workers when contractors are hired.”

Thus the Supreme Court concluded “that defendant Qualcomm Incorporated, the hirer in this case, owed no tort duty to plaintiff Martin Sandoval, the parts specialist working for Qualcomm’s contractor, at the time of Sandoval’s injuries.”

Darden Restaurants Defeats Minimum Wage Challenge

An advocacy group lacks standing to sue one of the largest restaurant chain companies in the United States for paying tipped workers less than minimum wage, a federal judge ruled Tuesday.

Courthouse News reports that One Fair Wage, a nonprofit focused on eliminating sub-minimum wages, sued Darden Restaurants, which operates national chains like the Olive Garden and Longhorn Steakhouse, this past April in the US. District Court for the Northern District of California. The group claims the company’s pay policies force workers to rely on tips for the bulk of their wages. This puts servers at the mercy of potentially biased, racist or sexist customers, according to the complaint.

It sought an injunction to stop Darden from paying sub-minimum wages to tipped workers in 43 states that allow the practice. According to the lawsuit, Darden pays waiters the lowest possible wage in the 43 states that allow tipped workers to make less than minimum wage. About 20% of Darden’s tipped workers make $2.13 an hour, and a majority of its tipped staff make less than the federal minimum wage of $7.25 an hour, according to the complaint. The federal minimum wage was last raised in 2009 from the prior rate of $6.55.

Seven states – including California, Oregon, Washington state, Nevada, Minnesota, Montana and Alaska – require tipped workers be paid full minimum wage. In California, employers with 26 or more employees must pay workers at least $14 an hour. That rate will increase on Jan. 1, 2022, to $15 per hour.

But U.S. District Judge Edward Chen found One Fair Wage is not entitled to sue someone else’s employer for workplace discrimination under Title VII of the Civil Rights Act of 1964.

Simply put, OFW cites no case law establishing that a non-employee – here, an advocacy organization – has standing to challenge an employment practice, particularly where the alleged injury it contends renders it ‘aggrieved’ is either purely ideological or entirely derivative of the injury directly suffered by actual employees – Chen wrote in a 29-page ruling.

Chen wrote that prior rulings, including a 2020 decision in a District of Maryland case, Know Your IX v. DeVos, challenging U.S. Department of Education sexual harassment and assault policies, suggest “there has not been a sufficient showing of direct impairment of OFW’s ability to operate and function to confer standing.”

But the judge did not dismiss the case on that basis. Rather, he found One Fair Wage’s lack of standing to sue under Title VII of the Civil Rights Act means the court didn’t need to address the group’s other theory of liability.

Chen wrote that One Fair Wage’s position on standing would mean any outside group affected by an employer’s labor practices could file suit and seek relief that would affect the rights and compensation of a class of potentially thousands of employees.  

“OFW’s broad standing approach would ignore the protection afforded to the class via Rule 23’s requirements of notice, objection rights, and judicial scrutiny of any class settlement,” Chen wrote. “This is particularly pertinent here, as there may well be employees who object to the changes sought by OFW to eliminate unmediated tipping.”

Chen dismissed the case with prejudice, finding any attempt to amend the lawsuit would be futile.

The “Approved” COVID Vaccine is Not Yet Available in U.S.

The U.S. Food and Drug Administration’s announced that it had granted “full approval” to the Covid shots being offered by Pfizer.  But to be clear, what was actually given full approval was a separate Pfizer-BioNtech vaccine product which goes by the name Comirnaty. But Comirnaty is not currently available in the U.S.

The 13-page “approval letter” is addressed to BioNTech Manufacturing GmbH and Pfizer Inc. in New York City, and approves a biologics license application (BLA) for BioNTech Manufacturing GmbH in Mainz, Germany, for COMIRNATY.

Then a letter to Pfizer Inc. on the same date states: “FDA is reissuing the August 12, 2021 letter of authorization in its entirety with revisions incorporated to clarify that the EUA will remain in place for the Pfizer-BioNTech COVID-19 vaccine for the previously-authorized indication and uses, and to authorize use of COMIRNATY (COVID-19 Vaccine, mRNA) under this EUA for certain uses that are not included in the approved BLA.”

Footnote 8 reads: “The licensed vaccine has the same formulation as the EUA-authorized vaccine and the products can be used interchangeably to provide the vaccination series without presenting any safety or effectiveness concerns. The products are legally distinct with certain differences that do not impact safety or effectiveness.”

The “certain differences”are not specified, but it is perfectly clear that the two products are legally distinct.  An analysis by the Association of American Physicians and Surgeons notes these differences and concludes that “It appears that there are two legally distinct if otherwise mostly identical products. The remaining doses of the ‘Pfizer-BioNTech COVID-19 vaccine’ are still under an EUA and are not fully licensed.

As of this date, the FDA has not approved the non Cominaty branded vaccine such as the Pfizer BioNTech vaccines, nor any COVID vaccines for the 12- to 15-year age group, nor any booster doses for anyone.

The FDA acknowledges that while Pfizer has insufficient supplies of the newly licensed Comirnaty vaccine actually available, there is “a significant amount” of the Pfizer-BioNTech COVID vaccine – which has been produced under Emergency Use Authorization (EUA) and will continue to be offered under the same EUA status.

EUA-licensed vaccines have an extraordinary liability shield under the 2005 Public Readiness and Preparedness Act. Vaccine manufacturers, distributors, providers and government planners are immune from liability. The only way an injured party can sue is if he or she can prove willful misconduct, and if the U.S. government has also brought an enforcement action against the party for willful misconduct. No such lawsuit has ever succeeded.

Phizer’s Cominaty vaccine likely does not have that liability protection for Pfizer. The abundant U.S. supply of EUA authorized Pfizer-BioNtech vaccine product does protect Pfizer. Instead, the government has created a comparatively stingy compensation program, the Countermeasures Injury Compensation Program, – compared to tort law – to redress injuries from all EUA products.

For purposes of an informed consent, those choosing to take either vaccine should be advised that an unprecedented number of lethal or serious adverse effects have been reported to the Vaccine Adverse Events Reporting System (VAERS).

The FDA-approved package insert for Comirnaty reads: “13.1 Carcinogenesis, Mutagenesis, Impairment of Fertility. COMIRNATY has not been evaluated for the potential to cause carcinogenicity, genotoxicity, or impairment of male fertility.” It mentions one study in female rats. The package inserts warns of myocarditis, but omits mention of Guillain-Barré syndrome, thrombotic complications, and other serious events.

Now the thorny issues. Can an employer mandate that employee’s take a vaccine that is “legally distinct” from the approved Cominaty product made by Pfizer? And if they do, does that bring any potential side-effect related problem within the workers’ compensation system?

Federal Regulations provide that no one can force a human being to take an EUA drug. Under 21 U.S. Code Sec.360bbb-3(e)(1)(A)(ii)(III), “authorization for medical products for use in emergencies,” parties need to be informed of their “option to accept or refuse administration of the product.”  What is also not clear is if the employer’s vaccine mandate under threat of termination interferes with this right.

DWC Seeks Extension of Emergency QME Regs for 90 More Days

The Division of Workers’ Compensation (DWC) issued its Notice of Emergency Regulation Re-Adoption of regulations sections 46.2 and 36.7 for medical-legal evaluations and reporting.

The emergency regulations are set to expire on October 12, 2021, and re-adoption would extend the emergency regulations for an additional 90 days.

This is DWC’s second and final re-adoption in accordance with Government Code section 11346.1(h).

The re-adoption of the emergency regulations will continue to help injured workers and employers move their workers’ compensation claims toward a resolution and avoid undue delay. These regulations address how a medical-legal evaluation may proceed and provide alternatives for service of required forms for a medical-legal evaluation and report.

The re-adoption of the emergency regulations will be filed with the state’s Office of Administrative Law (OAL) on September 20, 2021. The regulations to be filed with OAL can be found on the DWC website.

Upon OAL approval and filing with the Secretary of State, the regulations are effective for an additional 90 days. For information on the OAL procedure, and to learn how you may comment on the emergency regulations, go to OAL’s website. A notice will be posted at the DWC website when the re-adoption is approved.

6 LAPD Officers File Lawsuit Over COVID Mandate

The share of Americans who are required by their employer to get vaccinated against COVID-19 took a jump up in August to 19 percent, according to a Gallup poll reported on September 8. The percentage doubled in the last month. But not all employees are happy with this development.

A lawsuit, that was filed by LAPD Officers Saturday in U.S. District Court in Los Angeles, claims the mandate violates the employees’ constitutional rights to privacy and due process, and asks the court to provide immediate and permanent relief from the requirement.

The six LAPD employees suing include individuals “who could not assert a medical or religious exemption” to the vaccine requirement, as well as individuals who have “experienced and recovered from COVID-19” and have natural antibodies to fight the virus, the complaint states.

The lawsuit alleges the city’s mandate ignores the natural protections provided by such antibodies and claims the suing employees “can safely perform their job duties protecting themselves, fellow employees and the community they serve through non-pharmaceutical interventions such as daily health screenings, wearing masks, and quarantine.”

The suit also claims the employees have been subjected to harassment and undue pressure to get vaccinated by LAPD leaders, including a captain who said during a roll call meeting that the city was willing to fire thousands of officers if they don’t get vaccinated.

It alleges that commanders have called unvaccinated officers “unfit for duty” and told them that they would be denied promotions and special assignments based on their unvaccinated status.

First responders nationwide have been among the more vociferous opponents of mandatory vaccination, though they are often exposed to more risks of infection. Los Angeles firefighter John Knox, who leads a group called Firefighters for Freedom, claims that the vaccine mandate violated members’ constitutional rights.

A coalition of Oregon police officers and firefighters have sued Gov. Kate Brown over a COVID-19 vaccine mandate for state employees.

The plaintiffs – including the Oregon Fraternal Order of Police and the Kingsley Firefighters Association – argued in a lawsuit filed this September in a Jefferson County court that Brown’s executive order violates a number of laws and want it blocked.

COVID Doubled WC Death Claims Last Year

Compared to other types of workers’ compensation claims (i.e., medical-only, temporary disability, permanent disability), job-related deaths are relative rare in California. DWC reports that in AY 2019, there were 748 work- related death claims out of 687,912 work injury claims recorded by the WCIS, so death claims comprised 0.109% of all California claims (one out of every 917 claims) in the year prior to the pandemic.

However, the number of California workers’ compensation death claims more than doubled last year as the pandemic resulted in 866 COVID death claims, bringing the total number of job-related death claims for the year to 1,563, up from 748 in 2019 according to a new California Workers’ Compensation Institute (CWCI) analysis. The analysis also found that despite a sharp drop in work-related COVID cases from January through June of this year, an additional 166 COVID death claims were reported for the first half of 2021, for a total of 1,032 COVID death claims in the first 18 months of the pandemic.

CWCI’s review of California workers’ compensation COVID-19 death claim trends and characteristics uses data on COVID-19 and non-COVID-19 claims with January 1, 2020 through June 30, 2021 dates of injury that were reported to the state Division of Workers’ Compensation (DWC) as of July 26. The study encompassed all 148,222 COVID-19 claims for the 18-month study period (including the 1,032 COVID death claims) and 899 non-COVID death claims reported for the same period. Among the findings:

– – COVID surpassed transportation incidents as the leading cause of job-related deaths claimed in California, as the 1,032 COVID death claims reported for the first 18 months of the pandemic represented 53% of all death claims reported in the state for that period.
– – Since the pandemic began, death claims have been more than 6 times as prevalent among COVID claims than non-COVID claims. For the 18-month period ending in June there were 6.96 death claims per 1,000 COVID claims compared to 1.12 death claims per 1,000 non-COVID claims.
– – A quarter of all COVID claims have involved workers over age 50, but this age group accounted for 72% of the COVID death claims. In contrast, workers between the ages of 30 and 49 accounted for 48% of all COVID claims, but only 20% of the COVID death claims.
– – Females accounted for 26% of the COVID death claims, which is well below their 46% share of the state’s work force and their 48% share of all COVID claims, but well above their 15% share of non-COVID death claims, likely due to the high concentration of females in the health care sector, especially in jobs requiring direct patient contact, which were especially hard hit by the coronavirus last year.
– – The health care sector has suffered the heaviest toll during the pandemic, accounting for 30% of all COVID claims and 21% of COVID death claims over the 18-month study period. A closer look, however, reveals that after vaccines became widely available, the health care sector’s share fell from one out of three COVID claims last year to one out of five COVID claims from February through June of this year.
– – Public safety/government workers share of the COVID claims increased from 17% last year to 22% for the 5-month period that began in February, the same month that this sector overtook health care in terms of monthly COVID claim volume. Since February, retail and transportation workers’ share of the COVID claims are each up by 3 percentage points while manufacturing workers’ share is up by 2 percentage points.
– – Regional data show Los Angeles County accounted for 26% of the state’s jobs, 28% of all COVID claims, and 25% of non-COVID death claims during the study period, but 38% of the COVID death claims.

CWCI’s review of California workers’ compensation death claims has been released as a Spotlight Report.