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Category: Daily News

SEIU Offers Delay of 2030 Hospital Seismic Retrofit for Higher Pay

Following the California Northridge earthquake, California passed hospital seismic safety legislation.Senate Bill 1953. It was introduced on February 25, 1994 and signed into law on September 21, 1994. The law establishes a seismic safety building standards program for California hospitals built after March 7, 1973.

By January 1, 2030, owners of all acute care inpatient hospitals are required to demolish, replace, or change to nonhospital use, all hospital buildings that are not in substantial compliance, or seismically retrofit them so that they are in compliance with the standards. With roughly seven years left to comply, it is estimated that nearly two-thirds of California hospitals have yet to meet 2030 requirements, according to the Hospital Association.

According to a 2007 RAND study, the law was very controversial. Because of the age and engineering of the California hospital infrastructure, it is projected that the seismic safety goals will require reconstruction of about 50 percent of the current hospital floor space.The 2007 report said that the “pace of SB1953 compliance has been slow. Based on historical rates of construction and permit filings with the California Office of Statewide Health Planning and Development (OSHPD), about half of the SPC-1 hospital infrastructure will not comply with the 2008/2013 deadlines for SB1953, and many may not be able to comply with the final 2030 deadline.

This backstory leads to a story just published by the Los Angeles Times about a “Backroom deal broken to change earthquake standards in California hospitals collapses.”

According to the Times, a secretive deal between a group of hospitals seeking to weaken seismic upgrades at medical centers and an influential union looking to increase the pay of employees collapsed on Tuesday, just days after it was made public.

“The last-minute alliance between Service Employees International Union-United Healthcare Workers West and the California Hospital Assn. infuriated other unions, which accused the unlikely pair of making a backroom deal that skirted the legislative process and put patients, healthcare workers and communities at risk.”

In a hospital association memo obtained by The Times, the group said the deal with SEIU-UHW came together quickly and followed years of stymied attempts to delay a state law that requires hospital buildings to have earthquake upgrades by 2030. Hospitals estimate that those upgrades will cost $100 billion, a tab they say is likely to result in closures across the state.

Before the deal emerged, the hospital association and SEIU-UHW had been locked in a fierce battle over raising the minimum wage in Los Angeles County for hospital workers. The agreement between the two would have required lawmakers to sign off on the deal before the end of the legislative session Aug. 31.

The California Hospital Assn. sought a seven-year delay to the 2030 requirement and to limit the standards to hospital buildings that provide emergency services, according to a draft of the proposal obtained by The Times.

In exchange, unions would see the minimum wage for healthcare workers raised to between $19 and $24 an hour beginning Jan. 1, with the higher pay going to workers in counties designated as urban or semi-urban. Pay would have increased by $1 an hour in 2024, bringing the hourly minimum wage for some workers to $25.

SEIU-UHW on Tuesday accused the hospital association of walking away from “a conceptual agreement” over labor-related provisions. In response, the union announced that it would instead pursue the statewide minimum wage for healthcare workers that it sought in the deal through the state Legislature or a ballot measure.

Sedgwick Reports on Future Expectations for WC Claims Administration

In this commentary paper, Max Koonce, Sedgwick chief claims officer, details the aspects of workforce changes, healthcare and legislative/regulatory reform in his article “A view of workers’ compensation: past, present and future.”

The events and activities of the last few years have caused society to pause and consider many things from a cultural and political standpoint. Although workers’ compensation is generally not one of the headline considerations, the question remains as to what we can and should learn from past events and how it can influence the construct or functioning of workers’ compensation in the future.

The pandemic brought on heightened legislative and regulatory activity at the state and federal level. During 2020 and 2021, 18 states established COVID-19 presumptions for workers’ compensation via legislation, directives, emergency rules and/or executive orders. Two additional states -Tennessee and Washington – established a more general “infectious disease presumption.” At the time of this publication, only seven states have presumptions still in effect, although this was still a topic of conversation within many states through proposed legislation even in 2022.

It has been argued that “socialization of risk” occurred during the pandemic through the expansion of coverage under workers’ compensation for COVID-19 by presumption legislation/executive orders. Some contend that broadening workers’ compensation coverage beyond employment-related risks to those which employers have no ability to control or prevent seems not only counterproductive but also counterintuitive. Others contend that broadening such risks is supported, since society is a third interested party to the grand bargain of workers’ compensation, with the role of balancing protections for the employee with the critical role of business to a well-functioning economy.

Telehealth utilization increased dramatically during the pandemic, which brought to light its viability and function in supporting the continuity of medical treatment.. From a workers’ compensation perspective, Sedgwick saw an increase from less than 1% prior to the pandemic to a height of 17% for initial or subsequent physician visits. Although this has stabilized over the most recent 12 months, it maintains an average of roughly 10% of all initial visits.

Healthcare monitoring by mobile/ wearable devices continues to grow, with a greater percentage of consumers expecting these devices to be incorporated into their overall healthcare.

But the pandemic did not enthrall society with confidence and/or support for health-related institutions. The Robert Wood Johnson Foundation, in conjunction with the Harvard TH Chan School of Public Health, published a survey in May 2021 on the public’s perspective of the United States health system. Two points that were noted:

– – Positive ratings of the public health system declined, from 42% in 2009 to 34% in 2021.
– – The public currently trusts nurses, healthcare workers and doctors more than public health institutions and agencies.

With regard to claims administration, technology is driving the evolution of many long-established workers’ compensation claims handling models.

– – Auto-triage systems that evaluate early claim data elements and combine the data with historical patterns to accurately place a claim into a particular “bucket” for processing
– – Auto-adjudication systems that allow for “simple” claims to be processed without human intervention
– – Predictive modeling using historical data patterns to predict the future
– – Consumer self-service tools designed to eliminate the frustrations often associated with workers’ compensation claims due to lack of understanding and expectations of the process

Integrating workers’ compensation and disability/sick leave has been a topic of consideration for several years. Some employers have found ways to seamlessly integrate these benefits for their employees, yet this approach has not gained significant traction as a standard throughout the industry.

EDD Trust Fund $20B Deficit is More Than All Other States Combined

In 1935, Presient Franklin Delano Roosevelt created the first federal unemployment insurance program via the Social Security Act. The program created a national lending pool for states with insolvent unemployment relief accounts. It began by ‘incentivizing’ states to join the program and of course is now a required federal tax on all employers.

Called the FUTA tax, it’s levied on business owners directly for each employee they have. The IRS makes clear on its website, “Only the employer pays FUTA tax; it is not deducted from the employee’s wages.”

Recent news reports illustrated problems with the California Employment Development system such as phony pandemic jobless claims, and frantic callers jamming phone lines with questions that the state’s employment agency struggled to answer.

California’s unemployment system was on dicey footing even before the pandemic, rated as the least financially stable system of all 50 states in February of 2020 by the U.S. Department of Labor in its Unemployment Insurance 2020 Trust Fund Solvency Report.

But there’s yet another problem with the Golden State’s unemployment system that’s been brewing quietly during the pandemic: California now bears the unhappy distinction of having about as much unemployment debt as all other states combined.

The state’s unemployment insurance trust fund, a pool of cash funded by a tax on employers supposedly pays for the benefits claimed by workers. Employers put money into the trust fund on a regular basis via FUTA taxes. Workers receive money from it when they get unemployment benefits.

The federal government loaned money to many states early in the pandemic to shore up their unemployment funds. But two years later, several states have paid off their federal loans, while California’s debt balance remains the highest of any state. Millions have used unemployment benefits during the pandemic, draining existing reserves, and now the state is in debt to the tune of nearly $20 billion. Most states have no debt.

According to a report published by CalMatters, none of the few states with negative trust fund balances come close to California’s negative $19 billion balance. To put it into perspective, the second most indebted state is New York at negative $9 billion. And third is Illinois with nearly $4 billion in debt. And some states have surplus balances, such as Arizona at $1.2 billion and Iowa at $1.3 billion.  

Under the current system, it’s going to take years of higher taxes on employers, who fund the benefits, to pay it back. Gov. Gavin Newsom proposed using $3 billion of the state’s projected $21 billion surplus to take a bite out of that debt, in addition to hundreds of millions to cover the loan’s interest payment, when he unveiled his budget proposal in January.

While that proposal is intended primarily to help businesses, there’s no guarantee businesses will reap a benefit directly, especially in the short term. If these debts are not repaid “states may face interest charges and the states’ employers may face increased net FUTA rates until the loans are repaid.”

This isn’t the first time California’s unemployment trust fund has had to turn to the federal government for loans.

In the wake of the Great Recession, the fund went into about $10 billion of debt, and it took California employers roughly a decade to dig the fund out. Taxpayers wound up footing a roughly $1.4 billion dollar bill for interest payments on that loan. In fact, in 2016, when California employers were still paying down the Great Recession debt, analysts at the nonpartisan Legislative Analyst’s Office warned that the fund could go into debt again during the next recession.

Judge Approves $30M Apple Security Check Pay California Class Action

Lead plaintiff Amanda Frlekin sued Apple Inc., the Cupertino-based technology giant in 2013, claiming it illegally withheld pay from workers who had to spend five to 20 minutes on average waiting for managers and security officers to search their bags and verify their Apple devices before they could leave for lunch breaks or at the end of shifts.

In 2015, Senior U.S. District Judge William Alsup granted summary judgment in favor of Apple, finding that because store employees chose to bring bags and Apple devices to work, they could not prove the bag checks were mandatory. He found Apple could have imposed an even stricter policy by banning workers from bringing bags or personal Apple devices to stores. This ruling gave rise to the decision by the California Supreme Court, and subsequent reversal of the summary judgment by the 9th Circuit in September 2020.

In a unanimous February 13, 2020 decision, the California Supreme Court in the case of Frlekin v. Apple Inc., held that the time spent by employees waiting for and undergoing security checks of bags and other personal items is compensable time under California law, even when the policy only applies to employees who choose to bring personal items to work.

This month a California district court approved a $30.4 million settlement agreement between Apple and the class of workers who were required to undergo off-the-clock bag searches. The settlement, approved by U.S. District Judge William Alsup on August 13th, ends the California employment law legal battle that began nearly a decade ago.

From the gross settlement amount, the court approved Individual Class Payments in the aggregate amount of Twenty Million Five Hundred Two Thousand Five Hundred Ninety-Nine Dollars and three cents ($20,502,599.03) as fair, reasonable, and adequate.

This payment will be made to the 14,678 members of the class action, resulting in an approximate net payment per class member of $1,328, according to the Motion for Final Approval of Class Action Settlement. .

The remaining $10 million will be used to pay for attorneys’ fees, litigation costs and other payments.

Over the last several years, the question of whether the time employees spent having their bags checked at work is compensable has arisen in several different contexts, in California and across the country:

In late 2014, the U.S. Supreme Court in Integrity Staffing Solutions, Inc. v. Busk (135 S. Ct. 513, 574 US 27, 190 L. Ed. 2d 410) held that security checks are not compensable time under federal law because they are not part of the actual workday.

However in California, employees in most industries must be paid for the time they are subject to the control of their employer, not just the time spent doing work. This is so because, since 1947, California has specifically departed from federal law and has provided greater protection to working employees.

Court of Appeal Rejects Staffing Agency’s Comp Policy Dispute

The plaintiff in the case, Affiliated Temporary Help, is an employment agency, providing temporary staffing services and handling payroll, workers’ compensation and human resource services for the temporary employees it places.

The defendants include Infiniti HR, LLC a professional employer organization (PEO), a full-service human resources firm that assists businesses on an outsourced basis. CTK North American, LLC, doing business as CTK North American Insurance Services, a licensed insurance broker. HR Map LLC an administrator of PEO services and worked in that capacity for Affiliated.

In February 2015 Affiliated entered into a one-year contract with Infiniti HR to provide PEO services, including payroll, human resources, benefits administration and workers’ compensation services. Affiliated also elected to be covered under Infiniti HR’s workers’ compensation policy.

New management discovered that Infiniti HR had “deceptively” switched Affiliated from a no-deductible workers’ compensation policy to one with a $200,000 deductible, which, Affiliated alleged, effectively meant Affiliated was paying Infiniti HR to self-insure. Affiliated terminated the contract in writing in January 2020 after this discovery.

Affiliated sued CTK, and HR Map,, among other parties, for violation of California’s unfair competition law (UCL) (Bus. & Prof. Code, § 17200et seq.) and financial elder abuse in violation of the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act or Act) (Welf. & Inst. Code, § 15600 et seq.).

The trial court dismissed CTK and HR Map after sustaining their demurrers to the complaint without leave to amend. On appeal Affiliated contends it pleaded facts sufficient to constitute causes of action against CTK and HR Map and, at the very least, the court erred in denying leave to amend the complaint.

The Court of Appeal affirmed the trial court in the unpublished case of Affiliated Temporary Help v. CTK North American – B308558 (August 2022).

Under certain defined circumstances, the Elder Abuse Act covers the deprivation of property not held directly by an elder or dependent adult, the Act’s scope is not nearly as broad as Affiliated contends. It cannot be read to cover the facts of this case, and in any event Affiliated is not a protected party that can recover under the provisions of this Act.

Unfair Competition Law prohibits, and provides civil remedies for, unfair competition, which it defines as “any unlawful, unfair or fraudulent business act or practice.”

Affiliated contends that unlicensed insurance sales (Insurance Code section 1631) can serve as the basis for a UCL claim.

Section 1633 makes unlicensed insurance sales a misdemeanor. Although Affiliated’s UCL cause of action alleged CTK violated those provisions, it failed to plead sufficient facts to support that conclusory claim.

“As Affiliated acknowledged in its complaint, CTK is a licensed insurance broker. Even accepting as true the allegation that CTK somehow induced Affiliated to hire Infiniti HR without disclosing that Infiniti HR was not licensed, if that was transacting insurance business, CTK was licensed to do so.

Moreover, Affiliated failed to allege any factual basis for its assertion that CTK had a duty to disclose the license status of Infiniti HR.

Petitions Place So/Cal Healthcare Workers’ Minimum Wage Hike On Hold

The Los Angeles City Council approved a new healthcare worker minimum wage ordinance, increasing the minimum wage for healthcare workers at private healthcare facilities in Los Angeles to $25.00 per hour. Similarly, the Downey City Council approved its own citywide healthcare worker minimum wage ordinance.  The Los Angeles ordinance would have gone into effect on August 13, 2022, and the Downey ordinance would have become effective on August 11, 2022.

Since passage, coalitions sponsored by the California Association of Hospitals and Health Systems have sought to repeal the ordinances.

According to a report in the National Law Review, on August 10, 2022, two separate referendum petitions were filed with the City of Los Angeles and the City of Downey, respectively. Supported by the “No on the Unequal Pay Measures” group, the petitions seek to stay the ordinances and have the issue decided by voters in their respective cities. The proponents of the petitions stated that they gathered twice as many signatures required to suspend the minimum wage ordinances to hold a public vote on the new minimum wage hikes.

Thus, the minimum wage increases are frozen while the respective city clerk offices verify that the petitions contain the required number of valid signatures, which is 40,717 in Los Angeles. Assuming the requisite number of signatures are verified, the issue would be put to a public vote. In Los Angeles, however, if it is determined that there are not enough signatures as required, the ordinance will go into effect upon the city clerk issuing a certificate of insufficiency. In Downey, the ordinance has been automatically stayed pending review of the petition, and the Downey City Council will issue a decision once this process is done.

Should an election be authorized, it would probably not take place until 2024. While it is too late to include the referendums in this year’s fall elections, the “No on the Unequal Pay Measures” campaign stated that pushing for a special election in 2023 would be too costly.

Two other California cities, Monterey Park and Long Beach, approved a $25.00 per hour minimum wage for private-sector healthcare workers in early August. In Monterey Park, the ordinance will become effective 30 days after the city attorney processes the ordinance. In Long Beach, the Long Beach City Council voted unanimously in favor of an ordinance increasing the minimum wage for healthcare workers on August 2, 2022. The first reading of the ordinance by the City Council was on August 9, 2022, and the second reading took place on August 16, 2022. The Long Beach City Council approved the ordinance on August 16, 2022, and, absent a similar citizen referendum petition being filed, the ordinance will become effective on September 16, 2022.

These ordinances are part of a concerted effort of the Service Employees International Union (SEIU). SEIU is currently pushing to pass or put similar ordinances on the ballot throughout California, including in Anaheim, Baldwin Park, Culver City, Duarte, Inglewood, and Lynwood.

Gavin Newsom Appoints Applicant Attorney Joe Capurro to WCAB

68 year old Joe Capurro, who lives in San Jose, has been appointed to the Workers’ Compensation Appeals Board.

He graduated from California State University, Hayward, in 1977 with a BA in Political Science. He earned a Juris Doctor degree from the Santa Clara University School of Law and has been a certified specialist in the field of Workers Compensation for over 20 years.

He has practiced in the field of Workers Compensation Law since he was admitted to the California Bar in 1980. He is a sole practitioner at The Law Office of Joseph V. Capurro in San Jose, CA, and has represented injured workers before the Workers Compensation Appeals Board, various California Courts of Appeal, and the California Supreme Court.

He was an Attorney and Managing Partner at Capurro, Rocha & Schmidt from 1980 to 2012.

He is an active member of the California Applicants Attorneys Association and has served as a member of the Board of Directors. He currently serves on several committees of the organization and is Co-Chair of the Amicus Curiae Committee.

He is a frequent lecturer on matters involving Workers Compensation, particularly on the topic of recent case law developments.

Additional memberships include the Santa Clara County Bar Association, the Bar Association of San Francisco, the Workers Injury Law & Advocacy Group, and the American Association for Justice.

In a notable published court of appeal decision, he appeared for California Applicants’ Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent. in the case of Joe Notrica v SCIF, 83 Cal.Rptr.2d 89 (1999) 70 Cal.App.4th 911 (March 1999).

Joe Notrica, doing business as Notrica’s 32nd Street Market, sued his workers’ compensation insurer, State Compensation Insurance Fund to recover in tort and for unfair business practices, based on allegations relating to SCIF’s case reserve and claims handling policies and practices.

In a bifurcated proceeding, the jury awarded Notrica $478,606 in compensatory damages and $20 million in punitive damages; the trial court enjoined SCIF from various business practices and awarded $333,319.65 in attorneys’ fees.

SCIF appealed, and the court of appeal concluded that the punitive damages award must be reduced to $5 million and otherwise affirmed the trial court.

And the Internet Movie Database credits Joe Capurro for appearing in the 2017 documentary “Workers Con” which was written and directed by Julia Davis.  The documentary claimed that “Workers Compensation, is the Worker’s Con, a process flawed, buried in bureaucracy, adding insult to injury.”

This position requires Senate confirmation and the compensation is $170,463.

Ventura County Providers Pay $70.7M to Resolve FCA Allegations

Ventura County’s organized health system and three medical care providers have agreed to pay a total of $70.7 million to settle allegations that they broke federal and state laws by submitting or causing the submission of false claims to Medi-Cal related to Medicaid Adult Expansion under the Patient Protection and Affordable Care Act (ACA), the Justice Department announced today.

The parties that entered into the three separate settlement agreements are:

– – Ventura County Medi-Cal Managed Care Commission which does business as Gold Coast Health Plan, a county-organized health system (COHS) that contracts to arrange for the provision of health care services under California’s Medicaid program (Medi-Cal) in Ventura County;
– – Ventura County, which owns and operates Ventura County Medical Center, an integrated health care system that provides hospital, clinic, and specialty services;
– – Dignity Health, a San Francisco-based not-for-profit hospital system that operates two acute care hospitals in Ventura County; and
– – Clinicas del Camino Real, Inc. (Clinicas), a non-profit healthcare organization headquartered in Camarillo.

Pursuant to the ACA, beginning in January 2014, Medi-Cal was expanded to cover the previously uninsured “Adult Expansion” population – adults between the ages of 19 and 64 without dependent children with annual incomes up to 133 percent of the federal poverty level. The federal government fully funded the expansion coverage for the first three years of the program.

Pursuant to contracts with California’s Department of Health Care Services (DHCS), if a California COHS did not spend at least 85 percent of the funds it received for the Adult Expansion population on “allowed medical expenses,” the COHS was required to pay back to the state the difference between 85 percent and what it actually spent. California, in turn, was required to return that amount to the federal government.

The three settlements resolve allegations that Gold Coast, Ventura County, Dignity, and Clinicas knowingly submitted or caused the submission of false claims to Medi-Cal for “Additional Services” provided to Adult Expansion Medi-Cal members between January 1, 2014, and May 31, 2015. The United States and California alleged that the payments were not “allowed medical expenses” under Gold Coast’s contract with DHCS, were pre-determined amounts that did not reflect the fair market value of any Additional Services provided, and/or the Additional Services were duplicative of services already required to be rendered. The United States and California further alleged that the payments were unlawful gifts of public funds in violation of Article IV, Section 17 of the Constitution of California.

As a result of the settlements, Gold Coast will pay $17.2 million to the United States; Ventura County will pay $29 million to the United States; Dignity will pay $10.8 million to the United States and $1.2 million to the State of California; and Clinicas will pay $11.25 million to the United States and $1.25 million to the State of California.

Contemporaneous with the False Claims Act settlement, the U.S. Department of Health and Human Services agreed to release its right to exclude Gold Coast and Ventura County in exchange for their agreements to enter into 5-year Corporate Integrity Agreements (CIAs). The CIAs require, among other things, that Gold Coast and Ventura County each implement centralized risk assessment programs as part of their compliance programs and each hire an Independent Review Organization to complete annual reviews. Gold Coast’s annual reviews will focus on its calculation and reporting of Medical Loss Ratio (MLR) data under Medi-Cal, while Ventura County’s annual reviews will target hospital claims submitted to Medicare and Medicaid, including claims submitted to Medicaid managed care organizations.

The civil settlements include the resolution of claims brought under the qui tam or whistleblower provisions of the False Claims Act by Atul Maithel, Gold Coast’s former controller, and Andre Galvan, Gold Coast’s former director of member services. Under those provisions, a private party can file an action on behalf of the United States and receive a portion of any recovery. The whistleblowers also alleged claims under the California False Claims Act. The qui tam case is captioned United States of America, et al. ex rel. Maithel, et al. v. Ventura Co. Medi-Cal Managed Care Commission d/b/a Gold Coast Health Plan, et al., No. 15-7760AB TJH (JEMx) (C.D. Cal.).

Belligerent Truck Driver’s Misdemeanor Conviction Ends Comp Award

Christopher Johnson a truck driver for Lexmar Distribution dba LDI Trucking Inc. is a driver for the defendant making runs from California to Arizona. On one of his trips he was stopped for an illegal U-turn by the Arizona State Police.

Video footage taken from inside the cab of the truck. showed Johnson arguing with the officers, refusing to identify himself, provide his driver’s license, registration or insurance cards. He was argumentative with the officers and refused to comply with any of their instructions or orders. He was forcibly removed from the cab of the semi-truck and pulled to the ground which caused him injury for which he filed this claim.

He was arrested and taken to jail on 1/3/21 for 5 misdemeanor infractions. He pled out on two of the five charges pending against him, Count 1 Ariz. Statute 28-622A a misdemeanor 2nd degree and Count 2, 281595B, Failure to Show Driver License or Identification Misdemeanor 2nd degree.

Following a trial and submission, the WCJ found that Johnson did in fact sustain an injury during this physical altercation with the Arizona Police. The WCJ then considered two affirmative defenses raised by the employer.

The WCJ did not find the initial aggressor defense under §3600(a)(7) as the applicant never made any overt moves or threatening gestures to the officers to warrant this finding.

However, the WCJ found and granted a Labor Code §3600(a)(8)1 defense based upon on the altercation that occurred and Johnson’s pleading guilty to two misdemeanor charges. Johnson’s Petition for Reconsideration of this finding was denied in the panel decision of Johnson v Lexmar Distribution dba LDI Trucking Inc .- ADJ14203968 (July, 2022).

On reconsideration, Johnson argues that Labor Code §3600(a)(8) requires that he be convicted of a felony, and that since he was convicted of misdemeanors, the defense does not bar his benefits.

This provision of the Labor Code provides that benefits are to be paid “(8) Where the injury is not caused by the commission of a felony, or a crime which is punishable as specified in subdivision (b) of Section 17 of the Penal Code , by the injured employee, for which he or she has been convicted.”

Penal Code, section 17(b), provides: “(b) When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances . .”

The injury occurred during the commission of these crimes. Had Johnson cooperated with the officers he might have received a ticket or a warning, but do to his resistance and refusal to cooperate and exit his vehicle he was forcefully removed and taken to jail and charges with five misdemeanors.

The applicant pled guilty to two misdemeanors in Arizona, both of which were classified as misdemeanors carrying the potential of jail time and fines.

“Applicant fails to consider that he pled guilty to a crime that was punishable by a “fine or imprisonment in the county jail” as specified in Penal Code, section 17(b). Accordingly, section 3600(a)(8) applies and applicant’s rights to workers’ compensation is barred.”

CPWR Investigates Underlying Causes of Falls From Heights

Construction is one of the most dangerous industries in the United States, due in part to the presence of major work-related hazards such as falls – the leading cause of death among construction workers.

Despite ongoing efforts to improve awareness and use of fall protection and fall prevention solutions, 353 workers died from falls to a lower level in 2020 alone, and fall protection in construction remained the most frequently cited OSHA standard for violations across all industries for the ninth consecutive fiscal year.

To better understand why serious falls from heights continue to occur with such frequency despite being preventable, CPWR – The Center for Construction Research and Training – conducted a survey of persons who experienced, witnessed, or investigated a workplace fall incident.

The survey was developed and fielded with support from the American National Standards Institute (ANSI)/American Society of Safety Professionals (ASSP) Z359 National Work at Heights Task Force, the National Occupational Research Agenda (NORA) Construction Sector Council Falls Workgroup, and other organizers of the National Campaign to Prevent Falls in Construction and the National Safety Stand-Down.

A new preliminary report of this survey provides key findings from the survey as follows:

– – Respondents believe that lack of adequate planning is a key underlying cause of falls. Insufficient or ineffective planning was the most selected primary cause for falls (27.4%).
– – Lack of planning is associated with a lower likelihood of using fall protection. The odds of using fall protection were 71% lower for individuals whose employer or competent person did not do any planning compared to those whose employer or competent person did do planning or they were not sure.
– – Nearly half (48.8%) of respondents said that no fall protection was being used at the time of the fall.
– – Employee beliefs about their company’s fall protection policy are strongly associated with the use of fall protection. Respondents who believed fall protection was required by their employer were 8 times more likely to use fall protection compared to those who did not believe fall protection was required.
– – Rescue training may help reduce fall-related deaths. The odds of a fall being fatal were 76% lower for those who had self-rescue training compared to those who did not have this training.
– – Workers employed by subcontractors face an elevated risk of dying from falls. Individuals who worked for a subcontractor at the time of the fall incident were 2.7 times more likely to die from the fall compared to those who worked for a general contractor.

In terms of the severity of the fall incident, respondents indicated that 26.9% of fall incidents they had been involved in, witnessed, or investigated were fatal Most (63.9%) said 911/ emergency services were required at the time of the fall incident, and 34.9% said they were not required. In addition, medical care was required in 79.1% of fall incidents.

Several factors were found to be significantly associated with whether a fall was fatal.The higher the height of the fall, the greater the likelihood the fall would be fatal. Individuals who fell from a height of 21-30 feet were 8 times more likely to die from the fall compared to those who fell from a height of less than 6 feet.

Almost half (48.8%) of respondents said that no fall protection was being used at the time of the fall. When fall protection was being used, 31.3% used a personal fall arrest system (PFAS) and 16.1% used guardrails.

The most common consequences an employer experienced because of the fall incident were no consequences (31.7%), an OSHA citation/penalty (25.5%), and higher insurance premiums (19.5%).