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9the Circuit Revives Rest Break Class Action Against California Retailer

Ariana Miles worked for Kirkland’s, a chain of home décor stores, from about February 2011 to July 2018. She alleges that Kirkland’s unlawfully required employees to (1) remain in the stores during their rest breaks, and (2) work off-the-clock by getting their bags checked after they had clocked out. Based on these two claims, Miles sought class certification for various subclasses for the class period from May 2014 to the present.

The district court denied class certification because it found that common issues failed to predominate over individual ones under Rule 23(b)(3) of the Federal Rules of Civil Procedure for both the Rest Break and Bag Check Claims.

For the Rest Break Claim, the district court assumed in part that on-premises rest breaks do not automatically violate California law. It then held that in the “absence of evidence that Kirkland’s Stores’ rest period policy, as implemented class-wide, violates California law,” it “‘would have to conduct individualized inquiries’ into whether each Subclass member was denied a duty-free rest break while being required to stay on premises.”

And for the Bag Check Claim, the district court denied certification because “there is insufficient evidence to demonstrate a general practice across Kirkland’s Stores’ California facilities of unlawful bag checks that predominates over individualized inquiries.”

The 9th Circuit Court of Appeals reversed the district court’s denial of class certification for the Rest Break Claim, affirmed the denial of certification for the Bag Check Claim in the published case of Miles v Kirkland’s Stores Inc., 22-55522 (January, 2024).

With regard to the Rest Break Claim, under California law, employers may not require employees to work during rest periods. Cal. Lab. Code § 226.7(b). California’s Supreme Court has interpreted Section 226.7(b) to mean that employers must “relinquish any control over how employees spend their break time.” Augustus v. ABM Sec. Servs., Inc., 385 P.3d 823, 826 (Cal. 2016) (citing Brinker Rest. Corp. v. Superior Court, 273 P.3d 513, 535-36 (Cal. 2012)).

With regard to the Bag Check Claim, under California law, employers must pay employees for all hours worked. Cal. Lab. Code § 1194(a).

Rule 23 requires the district court to engage in a rigorous analysis before certifying a class. Rule 23 is designed to promote efficiency and economy of litigation. “A party cannot plead or speculate her way to class certification. She must marshal facts showing, by a preponderance of the evidence, that class issues predominate.” She must “show that the common question relates to a central issue in her claim.”

For a wage and hour claim, an employer’s official policies are relevant to the Rule 23(b)(3) analysis,” but a district court abuses its discretion by “rely[ing] on such policies to the near exclusion of other relevant factors touching on predominance.”

Kirkland’s admitted that it had a “uniform employee handbook policy requiring employees to remain on premises during their 10-minute paid rest breaks until sometime in 2018.” But a company’s policy by itself – even if it remains constant during the class period – “is not an elixir that turns canned allegations in a complaint into a pot of class action gold.” Courts still need to look at evidence of whether the company consistently implemented and enforced the policy across all employees during the class period.

The district court, after examining declarations of nine employees, determined that it “would have to conduct individualized inquiries into whether each Subclass member was denied a duty-free rest break while being required to stay on premises.”

“But the district court appears to have misinterpreted those declarations. The declarations cited by the district court only discuss store conditions in 2021, not the entire class period from 2014 to the present. These declarations do not establish that Kirkland’s employees could have left the store premises for their rest breaks from 2014 to 2018.” And “Kirkland’s consistently enforced that policy across its stores from at least May 2014 to sometime in 2018.”

The 9th Circuit concluded that the district court erred in denying class certification of the Rest Break Claim, but that it properly denied certification of the Bag Check Claim. It remanded the case back to the district court to reassess the evidence and apply the remaining Rule 23 requirements to the Rest Break Claim, consistent with this opinion.

NIH Partner to Open Neural Clinical Trials Ecosystem in Bakersfield

A high tech startup out of Cambridge, UK has chosen Bakersfield to locate a high-tech center for clinical trials aimed at developing neural digital therapies. BIOS Health, whose real-time, AI-assisted neural data monitoring platform has won a partnership with the National Institutes of Health and investors including Kern Venture Group, said in a news release that the new center will attract an ecosystem of pharmaceutical and medical device companies, clinicians and clinical trial partners. The plan also calls for hosting neurotech conferences in Bakersfield.

This news comes after BIOS Health announced earlier this year it had secured a growth round of funding from key partners, including KVG. BIOS also continues work as the data insights platform for the largest ever study of the human vagus nerve with the National Institutes of Health (NIH), and partners including the University of Minnesota, the Mayo Clinic, and Stanford University started in 2022.

The company is partnering with the City of Bakersfield, Kern County, and Kern Venture Group (KVG) to establish a state-of-the-art precision medicine center in Bakersfield, California. BIOS Health is pioneering the technology to read and interpret neural signals in real-time with AI, giving crucial insights previously inaccessible to clinicians, and pharmaceutical and medical device companies.

A major challenge in the healthcare industry today is a lack of any clear data and usable insights around the nervous system’s response to novel medicines and medical devices. This leads to high failure rates in clinical trials, costing the industry billions a year, and prevents potentially life-saving treatments from reaching patients – both of which the center aims to address.

BIOS has developed adaptive dosing technology, using neural biomarkers and AI, to observe and adjust in real-time, the effects of drugs and stimulations on patients’ nervous systems. For example, during implantation of neural stimulation devices, clinicians and their patients can now access real-time measurements of the effectiveness of their treatment, optimizing the dosing in under 10 minutes compared to what normally takes 12 months or more of trial and error.

BIOS’ neural insights platform could hold the key to a new generation of treatments for conditions including hypertension, diabetes, rheumatoid arthritis, and even diseases of the brain itself such as Parkinson’s or Alzheimer’s, and ultimately help millions of patients improve their quality of life.

The company will establish its West Coast hub to serve as the premier center for neural clinical trials and R&D, and to accelerate its broader commercialization in the US market. By setting up a center dedicated to real-time neural research for clinical trials, BIOS aims not only to scale up operations and reach more patients faster, but to also create an ecosystem of clinicians, pharmaceutical and medical device companies, and clinical trial partners around this new capability in accessing and understanding neural data. It will also enable BIOS to partner with leaders in clinics, more rapidly commercialize its technology in the clinical environment, and better serve pharmaceutical, biotechnology, and healthcare partners in the United States.

BIOS said in it’s press release that it chose Bakersfield for its proximity to large customers, access to talent, efficient operational costs, and its existing network of innovation and medical research. In particular, KVG, a partner and existing investor in BIOS, is attracting leading deep tech companies to the area to establish the industries of the future, and has extensive experience in accelerating their growth there. KVG, Kern County, and the City will also bring together their existing networks of local research organizations and large healthcare systems to facilitate the work of the center.

Jenni Byers, Interim Director, City of Bakersfield’s Economic & Community Development Department: “BIOS’s work is unique and has the potential to transform modern medicine as we know it today. Bakersfield is a prime West Coast location with an abundant labor force, robust job training programs, and has the resources to support BIOS’s growth. We are confident that our support of BIOS will be an important investment in Bakersfield’s and BIOS’s future.”

This will be BIOS’s second international hub after launching an AI and neuroscience research site in Montreal, Canada, in 2018, and will accelerate its broader commercialization in the US market.

BIOS Health is pioneering the technology to read neural data in real-time with AI to power a new generation of precision medicines. The human nervous system carries vast quantities of data, and BIOS’ ability to precisely link nerve activity to specific conditions through the discovery of their neural biomarkers is a game-changer for precision medicine, giving crucial insights previously inaccessible to clinicians and researchers. Similar to the DNA revolution in medicine,

California Workplace Indoor Heat Prevention Rules Expected in March

California is poised to protect people who work in poorly ventilated warehouses, steamy restaurant kitchens, and other indoor job sites where temperatures can soar to potentially dangerous levels. According to the report by KFF Health News, the state has had heat standards on the books for outdoor workers since 2005, and indoor workplaces are next.

If California adopts its proposal in the spring, businesses would be required to cool worksites below 87 degrees Fahrenheit when employees are present and below 82 degrees in places where workers wear protective clothing or are exposed to radiant heat, such as furnaces. If businesses are unable to lower the temperatures, they must provide workers with water, breaks, areas where they can cool down, cooling vests, or other means to keep employees from overheating.

Only two other states, Minnesota and Oregon, have adopted heat rules for indoor workers, according to the U.S. Occupational Safety and Health Administration. Nationally, legislation has stalled in Congress, and even though the Biden administration has initiated the long process of establishing national heat standards for outdoor and indoor work, the rules are likely to take years to finalize.

Neither workers nor businesses are satisfied with the plan. Some businesses fear they won’t be able to meet the requirements, even with the flexibility the regulation offers. Workers argue buildings should be kept even cooler.

Although most instances of heat-related illness are relatively minor, severe cases can result in serious injuries and even fatalities. In California, 20 workers died from heat between 2010 and 2017, seven of them because of indoor heat, according to a 2021 study by the Rand Corp., which analyzed the state’s proposed indoor heat rules.

After a record-breaking heat wave in the Pacific Northwest in 2021, Oregon in 2022 adopted protections for indoor workers that trigger when temperatures hit 80 degrees. Minnesota’s threshold temperatures range from 77 degrees to 86 degrees, depending on the type of work. The sheer size of California’s workforce, estimated at about 18 million, could usher in changes for the rest of country, said Juanita Constible, senior climate and health advocate at the Natural Resources Defense Council.

California regulators have crafted the indoor rules to complement the state’s protections for outdoor workers. Those say that when temperatures exceed 80 degrees, employers must provide shade and observe workers for signs of heat illness. At or above 95 degrees, they must come up with ways to prevent heat illness, such as reducing work hours or providing additional breaks.

The California Occupational Safety and Standards Board, which is charged with setting worker protections, is weighing the regulation that would require employers to cool their buildings with air conditioning, fans, misters, and other methods when the temperature or the heat index hits 82 or 87. Some employees would be exempt from the rule, including employees who work remotely and those involved in emergency operations.

On May 18, 2023, the Board held a Public Hearing to consider the addition of new section 3396 to the General Industry Safety Orders of title 8. The Board received oral and written comments on the proposed revisions. On August 4, 2023, another 15-Day Notice was issued. This second 15-Day Notice was a result of further comments from stakeholders and added Board staff consideration. The most recent comment period was closed on November 28, 2023.

The board is expected to vote on the rules in March, and they would take effect by this summer, board Chief Counsel Autumn Gonzalez said.

DWC Accepting Applications for Qualified Medical Evaluator

The Division of Workers’ Compensation (DWC) is now accepting applications for the Qualified Medical Evaluator (QME) examination for April 2024. The examination will be held between April 6 to April 12, 2024.

DWC will offer in-person computer-based testing (CBT) for the April 2024 QME examination using Pearson VUE. CPS HR consulting, the vendor managing the QME Exam, will notify interested candidates of the registration and scheduling process.

The test sites will be announced on the Registration Notices.

Notice regarding Public Access to Information about QME applicants

Please note that completed QME applications and registration forms submitted to DWC become records accessible to members of the public for inspection and copying under the California Public Records Act (PRA; Gov. Code, § 7920 et seq.). Under the PRA, the names and contact information such as address, phone number and email address of providers who register to take or pass a QME examination may be disclosed to members of the public; the division does not regulate the purposes for which such information might be used.

In addition, DWC makes the name, business address and area of specialty of approved QMEs available to the public through its online search portal. DWC recommends that providers use a business address, not a home (residential) address, on any correspondence with, or on any completed form submitted to the division.

The application and registration packet for the QME exam can be downloaded from the DWC website. Applicants may also contact the Medical Unit at 510-286-3700 to request an application via U.S. mail, email, or fax. The deadline for filing the exam applications is February 21, 2024. No applications will be accepted after this postmarked date. For more information, contact the Medical Unit at 510-286-3700 or by email at QMETest@dir.ca.gov.

UCLA Purchases 700,000 Sq. Ft. Space for Immunology Research Park

UCLA has acquired the former Westside Pavilion shopping mall, which the university will transform into the UCLA Research Park – bringing together scholars and industry experts from around the world to create a nexus for discovery and innovation that will benefit Southern California and beyond. The 700,000-square-foot property, located 2 miles south of the Westwood campus, will initially host two multidisciplinary research centers: the California Institute for Immunology and Immunotherapy at UCLA and the UCLA Center for Quantum Science and Engineering.

The vast new space, which straddles the southeast and southwest corners of Pico Boulevard and is connected by an enclosed pedestrian bridge over Westwood Boulevard, features a broad metal and glass facade and open areas with 17-foot ceilings, panoramic windows and expansive atriums inside and out. In addition to research labs and offices, the property has the potential for additional uses, including classrooms, lecture halls and event venues.

A fixture of West Los Angeles since its opening in 1985, the Westside Pavilion quickly became a much-visited retail location and gathering spot and continued to evolve over the following three decades. At one time, the site featured a three-level bookstore and multiple movie theaters and appeared as a backdrop to numerous movies and TV shows. Over the past decade, it suffered from a decline alongside other indoor malls across the country, leaving storefronts largely empty.

The new UCLA Research Park is made possible in part by an intended $500 million investment, with $200 million already allocated, from the state of California to establish and fund the immunology and immunotherapy institute at UCLA. The institute is also supported by a group of founding donors from the biotechnology, academic, entrepreneurship and philanthropic communities led by Meyer Luskin, Dr. Gary Michelson, Dr. Eric Esrailian, Dr. Arie Belldegrun, Sean Parker and Michael Milken.

In addition, Google – which previously leased part of the property – helped enable and support UCLA’s acquisition. Favorable real estate market conditions helped create the historic opportunity for the university as well.

The California Institute for Immunology and Immunotherapy has the potential to reshape the future of science and medicine,” said the institute’s founding donors. “We are proud to join UCLA, UC President Drake, Gov. Newsom and the state Legislature in helping make California a world leader in decoding the still-mysterious workings of the human immune system and translating breakthrough discoveries into lifesaving immunotherapies. Launching a research park that joins biosciences with quantum science and engineering – as well as other emerging technologies, like next-generation artificial intelligence – is a once-in-a-generation event, and we are honored to be a part of it all.”

The acquisition caps a multiyear effort by Dr. John Mazziotta, vice chancellor for health sciences and CEO of UCLA Health, to establish the institute at UCLA and provide it with leading-edge facilities.

UCLA’s goal is to build the immunology equivalent of Silicon Valley in Los Angeles,” said Mazziotta. “Given the university’s expertise and state-of-the-art facilities, we are expecting to attract the world’s best scientists in immunology and immunotherapy, as well as top students.”

The institute will draw on the expertise of UCLA faculty members, scholars from different higher education institutions, and other leading scientists and practitioners in clinical and biomedical scientific research, including human genetics, genomics, computer science, engineering and information science. Researchers will pursue new tools, treatments and vaccines for cancer, autoimmune and immune deficiency disorders, infectious diseases, allergies, heart conditions, solid organ transplantation and other major health-related issues.

The UCLA Research Park will also be home to the UCLA Center for Quantum Science and Engineering, which conducts research in the emerging field of quantum science and technology – including quantum computing, communication and sensing – with the aim of dramatically increasing information processing power by harnessing the unusual behavior of subatomic particles.

This latest major acquisition – UCLA’s third in the past 15 months – is part of a transformative expansion designed to broadly extend UCLA’s top-flight resources and institutional expertise, deepen the campus’ connections to Los Angeles’ diverse and dynamic communities, and meet the growing demand for top-tier higher education across the city and region. Each acquisition has been an adaptive and sustainable development, repurposing existing structures for new uses while avoiding the need for major construction.

In June of this year, UCLA bridged the gap between Westwood and downtown Los Angeles with its purchase of UCLA Downtown, a 334,000-square-foot building in downtown’s Historic Core.

And in September 2022, the university acquired its UCLA South Bay campus, including the 24.5 acres of the former Marymount California University campus in Rancho Palos Verdes and an 11-acre residential site in San Pedro — allowing UCLA to expand its offerings, serve more students and advance the University of California’s 2030 systemwide goals.

WCIRB Releases Third Quarter 2023 Experience Report

The Workers’ Compensation Insurance Rating Bureau of California (WCIRB) has released its Quarterly Experience Report. This report is an update on California statewide insurer experience valued as of September 30, 2023.
Highlights of the report include:

– – Written premium through the third quarter of 2023 of $12.1 billion is 2% higher than the same period in 2022.
– – The average charged rate for the first nine months of 2023 continues to decrease; it is 5% lower than 2022 and the lowest in decades.
– – After five consecutive increases, the projected loss ratio, including the cost of COVID-19 claims, dropped 2 points in accident year 2022.
– – After increasing over the prior five years, the projected combined ratio for accident year 2022, including COVID-19 claims, is 6 points lower than in 2021.
– – Average claim closing rates have steadily increased in 2022 and 2023 but remain below the pre-pandemic level.
– – Projected severity on indemnity claims for 2022 is 4% higher than 2021 and 16% above 2017.
– – The average severity in 2022 is the highest it has been in more than a decade, since before the SB 863 reforms.
– – Following several years of modest changes, indemnity severity has increased steadily since 2017. Accident year 2022 indemnity severity is 6% higher than 2021 and 23% higher than 2017. Recent growth in indemnity claim severities has been in part driven by above average wage inflation during the pandemic.
– – The projected medical severity for 2022 is 2% higher than 2021 and 14% higher than 2017. Some of the recent growth in medical severities may be attributable to claims staying open longer since the start of the pandemic and increasesto medical fee schedule reimbursements effective in early 2021.
– – The average paid medical service cost per claim in 2022 is higher than 2021, driven by higher payments per transaction. Some of the paidperclaim growth in 2021 and 2022 is attributable to higher fee schedule reimbursement levels for evaluation and management and medical-legal services effective in early 2021.

The full report is in the Research section of the WCIRB website

Ruling Allows Homeowners to Avoid Illegally Uninsured Comp Problems

The Labor Code provides in essence that persons employed by the owner or occupant of a residential dwelling are generally not considered employees for purposes of workers’ compensation and therefore not entitled to benefits if they work less than 52 hours, or who earned less than $100 in wages for an employer, during the period of 90-calendar days prior to the date of the alleged injury.

Those who exceed those limits are employees of the owner or occupant, and a number of cases in the worker’s compensation literature illustrate examples, such as in Fichera and Allstate Ins. Co. v. W.C.A.B. (May) (1981) 46 Cal.Comp.Cases 26 (Writ Denied), the Board held that an injured house and animal sitter was included within the definition of an employee even though she had only worked 38 hours before sustaining an injury where the Board found that the contract of employment provided for more than 52 hours of work per week.

To assist homeowners in securing coverage for workers’ compensation liability, the legislature passed Insurance Code section 11590 in 1977 which provided that no policy providing comprehensive personal liability insurance may be issued or renewed in this state on or after January 1, 1977, unless it contains a provision for coverage against liability for the payment of workers compensation, as defined in Section 3207 of the Labor Code, to any person defined as an employee by subdivision (d) of Section 3351 of the Labor Code.

Any such policy in effect on or after January 1, 1977, whether or not actually containing such provisions, shall be construed as if such provisions were embodied therein. However, such coverage shall not apply if any other existing, valid and collectible, workers’ compensation insurance for such liability is applicable to the injury or death of such employee.

Homeowners’ insurance policies in California are the method by which owners and occupants of residential properties secure coverage for industrial injuries. But not all homeowners are able to purchase homeowner policies if they live in areas where they are near the risk of forest fires or other catastrophes such as flooding. In response to insurers’ reluctance to write basic property insurance for homeowners who live in high risk or otherwise uninsurable areas, in 1968, the California Legislature enacted the “Basic Property Insurance Inspection and Placement Plan.”

The 1968 law provides for the ‘the equitable distribution among admitted insurers of the responsibility for insuring qualified property for which basic property insurance cannot be obtained through the normal insurance market by the establishment of a FAIR Plan, an industry placement facility and a joint reinsurance association.The FAIR plan provided for coverage of the property only, and did not provide for general liability or workers compensation coverage for the homeowner.

Since 1968 the difficulty for homeowners in California to obtain homeowner insurance has substantially increased. Allstate, Farmers, and USAA, have either completely stopped writing new policies or significantly limited their activity in California. Additionally, four smaller insurers: Merastar, Unitrin Auto and Home, and Unitrin Direct Property and Casualty, have announced they will not renew existing policies in California starting in 2024.

On November 14, 2019, the Insurance Commissioner issued Order No. 2019-2, which required the FAIR Plan to submit a new revised plan of operation to effectuate various business operational changes to the FAIR Plan, including requiring the FAIR Plan to sell HO-3 policies in California. An HO-3 policy is a homeowner’s insurance policy and refers to the name of the standardized insurance form issued by the Insurance Services Office, Inc.

On December 13, 2019, FAIR Plan filed a petition for writ of mandate in California Fair Plan Association v. Lara, case number 19STCP05434, challenging Order No. 2019-2. On December 19, 2019, the Commissioner issued Order No. 2019-3, in which the Commissioner promulgated his own revised plan of operation to be followed by FAIR Plan to effectuate the aforementioned business operational changes.On August 19, 2021, the Court entered its judgment granting in part and denying in part the writ petition, directing the Commissioner to set aside those parts of Order Nos. 2019-2 and 2019-3 that require the FAIR Plan to offer a comprehensive HO-3 Policy.

In response, on September 17, 2021, the Commissioner issued Order No. 2021-2, which requires FAIR Plan to offer a “Homeowners’ Policy” that “insures against, at a minimum, the following perils to the insured property not currently covered under the FAIR Plan’s dwelling fire policy: accidental discharge or overflow of water or steam; premises liability; incidental workers’ compensation; theft; falling objects; weight of ice, snow, or sleet; freezing; and loss of use, including coverage for additional living expenses and fair rental value.”

On October 14, 2021, the Fair Plan Association filed another petition seeking to nullify Order No. 2021-2. On November 27, 2023 the Superior Court of the County of Los Angeles denied the Petition for Writ of Mandate in case 21STCV38060. Thus, currently Order No. 2021-2 (as amended) remains in effect. Homeowners who are unable to obtain homeowners insurance will at least be offered a policy with workers compensation and general liability insurance under the FAIR plan, although the coverage is not the equivalent of an HO-3 policy.

Farmers Senior VP of Claims Awarded $24M for Employer Retaliation

Farmers hired Andrew Rudnicki in 1979. He worked his way up as a trial lawyer to supervising attorney, co-managing the Los Angeles office, and divisional supervisor. In 2013, he was promoted to senior vice president of claims litigation and led Farmers’s branch legal offices. The branch legal offices provide legal representation to Farmers’s insureds. In this role, Rudnicki was responsible for outside counsel that represented Farmers’s insureds, legal bill review, and legal vendors.

In 2013, Lisa Sepe-Wiesenfeld reported to Rudnicki, who tasked her with participating on a conference call with multiple attorneys to address some of their gender-based concerns regarding women in leadership/promotions. Participants included Catherine Meta Pugh, who worked in human resources, and attorneys Christine Campbell, Karen Wasson, and Bethany Soule. Rudnicki then had multiple phone conversations with these three attorneys regarding gender issues.

On April 29, 2015, Lynne Coates filed a class action lawsuit against Farmers, alleging that “Farmers systematically pays female attorneys less than similarly-situated male attorneys. Not only are male attorneys paid more, they are routinely given higher profile work assignments; are given raises and promotions more frequently; and are recognized for their accomplishments while female attorneys are not. In general, Farmers advances the careers of its male attorneys more quickly while treating its female attorneys more like support staff.” In October or November of that year, Wasson became the lead plaintiff in Coates. Farmers retained Paul Hastings, LLP to represent it in the Coates action.

In late 2015, Rudnicki went to Farmers chief claims officer, Keith Daly’s office to explain that he had been prepared by Paul Hastings and expected to give a deposition in Coates; he stated that he would be testifying about what he believed were some HR failures, specifically, the fact that the gender disparity issue had been raised and that HR denied his requests for gender demographics and pay disparity documents in 2013. Daly became red-faced and agitated. Daly unhappily said something like “I don’t see that you need to testify about that.” Rudnicki replied that he did not get to dictate which questions were asked of him.

Thereafter, Daly treated Rudnicki with an icy chill. For example, in February and March 2016, Daly did not ask Rudnicki to speak at Farmers’s big conference, even though he had spoken there every year for the preceding 10 years. At another event, when every other department head was asked to speak, Rudnicki was excluded.

The Coates litigation settled in principle on April 13, 2016, before Rudnicki was ever deposed. One month later, on May 13, 2016, Farmers terminated Rudnicki’s employment. When asked for a reason, Daly and Elliott told Rudnicki that there were “HR issues” and that he was responsible for the Coates settlement. Elliott told Rudnicki that his “behavior ha[d] become a risk to the organization.” But, Daly did not review Rudnicki’s personnel file before terminating his employment; he was only familiar with his own reviews of Rudnicki. Elliott also did not review Rudnicki’s personnel file before Rudnicki’s employment was terminated.

On August 10, 2016, Rudnicki filed a lawsuit, alleging nine causes of action against Farmers. Only five claims survived Farmers’s motion for summary judgment/adjudication: (1) age discrimination, (2) gender discrimination, (3) disability discrimination, (4) retaliatory termination, and (5) a derivative claim for wrongful termination.

Following a 24-day trial, the jury found in favor of Rudnicki on his claim for retaliation, awarding him $5.4 million in compensatory damages and $150 million in punitive damages. The trial court reduced the punitive damage award to $18.9 million, but left the rest of the verdict standing. The Court of Appeal affirmed in the unpublished case of Rudnicki v Farmers Insurance Exchange -B321691 (January 2024).

Farmers argued that the Court of Appeal should reverse the judgment on liability because (1) Rudnicki could not prevail on a claim for retaliation; and (2) the trial court issued certain erroneous evidentiary rulings. Alternatively, if it does not reverse on liability, Farmers asks it to eliminate or substantially reduce the damage award.

The Court of Appeal was not persuaded by these arguments. It found “Farmers engaged in misconduct that can be characterized as moderately reprehensible. It caused physical harm in a foreseeable manner.”

Understanding “Kinesiophobia” is Valuable Tool for Claims

In his latest newsletter, Bill Zachary reported on “Kinesiophobia” and how well it explained some of the barriers that injured workers face during their journey to recovery from work-related injuries. The path to recovery and return to work for injured workers is fraught with challenges, and one significant obstacle is kinesiophobia – the fear of movement and physical activity due to the anticipation of pain and, particularly, the fear of reinjury.

Kinesiophobia is not only a significant barrier to optimum recovery, but it’s also one of the major obstacles preventing injured workers from returning to their jobs. It is crucial to identify when Kinesiophobia is impacting recovery and return to work and to take the necessary steps to overcome these barriers. Here are some important facts about kinesiophobia:

Discomfort (also known as pain) plays a crucial role in learning and recovery. For instance, sticking one’s finger in a pot of scalding hot oil quickly teaches the importance of avoiding such actions. However, in the context of physical therapy and rehabilitation, a certain degree of discomfort may be necessary to stretch and strengthen tissue and regain an optimum range of motion. Acknowledging the distinction between harmful pain and therapeutic discomfort is vital in addressing kinesiophobia and achieving successful recovery and return to work.

Pain is a subjective experience. What one individual perceives as excruciating and unmanageable, another may consider uncomfortable but manageable. After an intense workout in the gym, some may find muscle discomfort to be a positive experience (proof of exercising) rather than a negative one. Personal perception of pain can significantly impact treatment and recovery. Recognizing that pain tolerance varies among individuals, it’s essential to tailor rehabilitation approaches to consider each worker’s pain threshold when developing treatment programs. Physicians and therapists who are not aware of these issues may find that surgery, other treatments, and physical therapy fail when not acknowledging and understanding issues like Kinesiophobia.

Sometimes, the anticipation of pain can be more daunting for injured workers than the actual pain they will experience. Each of us brings our unique life experiences and beliefs to the experience of pain.  Part of a Physical Therapist’s job is to manage the anticipatory fears of patients and have them perform required movements at a controlled intensity.  Once the patient experiences this minor pain, the fear diminishes.

Human memory has a fascinating way of moderating our perception of pain. I have little accurate memory of how severe the pain was after my shoulder surgery. I remember that I was “uncomfortable” but do not really remember the severity of the pain in the immediate days following the surgery. You may also reflect on not remembering the severity of the pain after a broken bone or even a stubbed toe. The phrase “Time heals all wounds” can be applied to most people who have had severe pain. Their perception of the pain severity fades over time.  Repeated instances of minor pain during home exercises will aid the change in perception from daunting pain to mere discomfort.  Digital health, such as Plethy’s Recupe app, are excellent at encouraging exercise adherence, thus creating these memories of minor discomfort.

Kinesiophobia is best treated by first recognizing its existence. One of the most common tools for diagnosing and evaluating the level of kinesiophobia is the Tampa Scale of Kinesiophobia (TSK), consisting of 17 self-reporting questions that assess levels of fear, pain catastrophizing, and disability.

It is important to note that despite the fear of physical activity, physical activity can also be a form of treatment (and often is the best treatment that will facilitate full recovery). There are specific strategies or techniques to help individuals manage the anticipation of pain effectively.

Kinesiophobia can be treated through a multidisciplinary approach, involving a rehabilitation physician, a psychologist, and a physical therapist.

The focus of most treatment includes counseling, reassurance, education, relaxation training, mirror therapy, and small incremental steps in treatment.  Proven treatment includes mindfulness exercises, cognitive-behavioral techniques, medication for anxiety and limited low-dose analgesics.  Active care activities, such as exercises in the home and clinic, are also key to reducing this fear through exposure.  Here, adherence is key, especially with home exercises as the patient will spend far more time at home than in the clinic.  Thus, Recupe and other digital health show great promise towards the treatment of kinesiophobia.

In concluding his article Mr. Zachary said “It is essential for claims professionals to engage in identifying potential cases and intervene to overcome the barriers.  If an injured worker refuses to return to light or modified duties, determining the underlying reasons, such as the fear of reinjury, is crucial. Providing this information to the doctor and supporting the appropriate clinic and home treatment can facilitate a more comprehensive approach to rehabilitation and recovery.”

Prices Set to Increase This Year on Over 500 Prescription Drugs

A storm is brewing in the world of medicine, with drugmakers poised to unleash a price hike on over 500 drugs this January. According to the report in Reuters, tt’s a decision that’s sending ripples through the entire system, leaving patients, governments, and even the drug companies themselves caught in the tide.

Pfizer, Sanofi, and Takeda plan to increase prices on over 500 unique drugs in early January. This includes more than 140 distinct brands of drugs across various doses and formulations. While overall price increases have slightly decreased compared to previous years, newly launched drugs continue to see significant price hikes, reaching record levels.

This decision comes despite the Biden administration’s efforts to control drug pricing through measures like the Inflation Reduction Act (IRA), which allows Medicare to negotiate prices for some drugs starting in 2026.

On the surface, it’s a classic case of supply and demand. Drugmakers point to rising costs, from inflation to research and development, as the reason for cranking up the price tags. They argue it’s the only way to keep the wheels of innovation turning and new life-saving drugs rolling out of their labs.

But not everyone is buying it. Critics see a system rigged against affordability, where transparency is as scarce as a magic cure. They worry about patients caught in the crossfire, forced to choose between their health and their wallets. The burden, they argue, falls heaviest on those already struggling to stay afloat, with potentially life-saving medications becoming another luxury they can’t afford.

This isn’t just a domestic squabble, it’s a global game of chess. Governments, tired of footing the ever-growing healthcare bill, are flexing their muscles. The US, for example, recently passed the Inflation Reduction Act, a game-changer that gives Medicare the power to negotiate prices for some drugs. It’s a tiny pebble in the pond for now, but its ripples could create waves across the industry.

For patients, the future is as murky as a medicine bottle label. Will they have to ration their pills, switch to cheaper (but potentially less effective) alternatives, or simply forgo treatment altogether? It’s a chilling proposition, leaving many scrambling for solutions – solutions that, like the perfect pill, remain elusive.

So, where does this story go? Will the drugmakers hold firm, clinging to their pricing power? Will governments find the right formula to tame the price monster? How much of this will be reflected in the cost of administrating workers’ compensation claims? Only time will tell, but one thing’s for sure – this is a story with no happy ending in sight, at least not yet.