Please join Bernadette M. O’Brien, Esq., SPHR, of Floyd Skeren Manukian Langevin, along with Senior Partner Amanda A. Manukian, Esq., for the latest on important topics for employers, human resources administrators, risk managers, and claims adjusters on COVID-19 including:

-- Week of May 4, 2020-New COVID-19 developments in workers’ compensation and employment law impacting the workplace;
-- A closer look at:
--- DOL’s enforcement of paid sick leave laws
--- Sample FFCRA letter to eligible employee
--- Sample letter to workforce re employee with COVID
--- Update: temperature screening of employees
--- Update: Are essential employees who are home due to a “fear of COVID-19” entitled to leave protections?
-- A review of new workers’ compensation claim scenarios including a focus on a post-termination COVID-19 claim and defense strategies;
-- Updated common questions.

Friday, May 8, 2020 from 10:00 am until noon. Webinar is free. Please register online

Contact: Rebecca.zandovskis@floydskerenlaw.com for assistance.

Bernadette M. O’Brien is a Partner at Floyd Skeren Manukian Langevin, LLP, and an SPHR/SHRM-SCP certified Human Resources Consultant.

Ms. O’Brien is author of the LexisNexis publication Labor and Employment in California: A Guide to Employment Laws, Regulations and Practices, co-author of California Leave Law: A Practical Guide for Employers, and co-author of California Unemployment Insurance and Disability Compensation Programs ...

Amid social distancing, authorities nationwide are reporting a surge in fatal opioid overdoses. Addiction and recovery advocates say the U.S. is now battling two epidemics at once. From 1999 to 2018, opioid overdoses involving prescription and illicit drugs have killed nearly 450,000 Americans. (One recent study found an additional 99,160 opioid deaths, previously unreported because of incomplete medical records.)

Montgomery County, Ohio, was considered the country’s overdose capital in 2017 - is reporting a 50 percent jump in overdoses over last year. Coroner Kent Harshbarger suggested to one local news outlet this increase could be closer to 100 percent: "March had around 42 which, our normal baseline is somewhere in the 20s usually. So 42 is a significant increase."

Indeed, authorities in counties across Florida, Texas, Pennsylvania and New York are also reporting rises in overdoses during the COVID-19 crisis.

Helen Jones-Kelley, the executive director of Montgomery County Alcohol, Drug Addiction and Mental Health Services, said her agency is redoubling efforts to get in front of the spate of overdoses. That includes delivering naloxone kits to households with a history of drug abuse and reviewing ledgers to see whose kits are expired. She said her task force is penning personal notes for those who might be struggling, and informing people about telehealth treatment options for addiction.

While some Americans struggle to find toilet paper and cleaning supplies during the pandemic, the country’s drug users are also facing a dwindling supply.

COVID-19 has interrupted the global supply chain of illicit drugs, including the synthetic opioid fentanyl. One key supplier in Wuhan, China—the world’s first coronavirus epicenter, and a hub for precursor chemicals used to create synthetic opioids - closed shop earlier this year.

Last week, the Los Angeles Times reported that one of Wuhan’s biggest customers, Mexican drug cartels, are being stymied by a reduction in exports and new travel restrictions to the United States, leading to a hike in illicit drug prices.

The increased cost for drug users is a key concern, according to Glenn Sterner, an assistant professor of criminal justice at Penn State Abington.

"Just like we’re having trouble finding paper products and stuff in grocery stores, traffickers are having issues trying to find the chemicals to make our drugs," said Sterner, a member of the Opioid Overdose Task Force for the State of Pennsylvania.

"In some ways this is a good thing," Sterner added. "We’re actually seeing less of these substances in our communities in some areas. If we can’t get on planes, neither can the drugs."

But Sterner says in places with a shortage of heroin, prices will go up and put a bigger strain on drug users experiencing poverty. That in turn could lead to an increase in criminal activity, as people seek money to buy drugs, and to a spike in the use of other drugs like methamphetamine, which is becoming more widely available. He said addiction treatment for meth, however, isn’t as robust as that for opioids.

Meanwhile, people might unknowingly be consuming less potent versions of drugs like heroin, which could be diluted in face of shortages. Sterner said that once the supply chain reemerges, it could open the floodgates to more overdoses, as drugs will be more potent and come at a cheaper post-coronavirus price ...

U.S. Attorney McGregor W. Scott and Rod Ammari, Special Agent in Charge of the Treasury Inspector General for Tax Administration (TIGTA), Office of Investigations, Western Field Division, warned the public to be aware of scammers attempting to intercept Economic Impact Payments being delivered by the Internal Revenue Service.

U.S. Attorney Scott and SAC Ammari announced an effort to provide taxpayers with the necessary information to avoid falling victim to criminals using this pandemic as an opportunity to commit fraud. TIGTA has established a website for citizens to report IRS-related Coronavirus scams at tips.TIGTA.gov. You may also contact TIGTA’s investigative offices in Fresno at 559-458-7377 or in Sacramento at 916-974-5774.

Most eligible taxpayers will receive their payment through direct deposit into their bank account. Taxpayers that traditionally receive tax refunds via paper check, including many elderly citizens and those who do not use banking services, will receive their payments via U.S. Treasury check delivered by mail by the U.S. Postal Service.

"During this national emergency, all Californians must remain vigilant against those who are plotting ways to scam them out of their COVID-19 economic impact payments," said U.S. Attorney Scott. "It is critical that suspicious calls and efforts are immediately reported to law enforcement."

"TIGTA is the agency responsible for protecting the integrity of Federal tax administration, including attempts to impersonate the IRS to defraud taxpayers," said Special Agent in Charge Ammari. "We are committed to working with our law enforcement partners to investigate and bring to justice any individual or organization that engages in criminal activity and exploits this national crisis as a means to commit fraud."

U.S. Attorney Scott and SAC Ammari offered the following tips on how to identify and report attempted scams involving the Economic Impact Payments:

-- The IRS will not call you, text you, or email you to prompt you for more information as a prerequisite to getting an Economic Impact Payment.
-- To check on the status of your Economic Impact Payment, please visit www.IRS.gov and click on "Get My Payment." Only use the website www.IRS.gov. Do not use any other websites or services that claim to be able to process your Economic Impact Payment or act as an intermediary between you and the IRS. Similarly, do not click on any links in e-mails that purport to take you to the IRS website. The best practice is to manually type “www.IRS.gov” into your web browser.
-- Anyone who calls you claiming to be from the IRS and offering to process your Economic Impact Payment is impersonating the IRS. Do not share any personal or financial information with these scammers.
-- Do not share your personal information with anyone, whether claiming to be from the IRS or some other business or government agency, offering to assist you with your Economic Impact Payment. Payments will be delivered by the IRS through direct deposit or via U.S. Treasury check delivered by mail by the U.S. Postal Service.
-- Do not share your online banking username or password with anyone. The IRS does not need your online banking username and password in order to send your Economic Impact Payment.

After your Economic Impact Payment has been sent, the IRS will send you a letter confirming your payment. If you receive this letter, but you have not received your Economic Impact Payment, please report the missing payment to TIGTA through our website at tips.TIGTA.gov. You will also need to report the missing payment separately to the IRS ...

Hundreds of COVID-19-related scams, many of which operated from websites that advertised fake vaccines and cures, operated fraudulent charity drives, delivered malware, or hosted various other types of scams, have been disrupted by US law enforcement, according to an announcement by the Department of Justice.

As of April 21, 2020, the FBI's Internet Crime Complaint Center has received and reviewed more than 3,600 complaints related to COVID-19 scams, said the DOJ statement.

Federal agencies then worked to analyze the complaints and investigate the scams, ultimately shuttering hundreds of malicious domains.

Among the scams closed were a fraudulent site claiming to be soliciting donations for the American Red Cross. Several other sites were impersonating government programs to trick people into entering sensitive personal information such as banking details and others which distributed malicious software.

"The department will continue to collaborate with our law enforcement and private sector partners to combat online COVID-19 related crime," said Assistant Attorney General Brian A. Benczkowski of the Justice Department’s Criminal Division.

To combat the scams, the DOJ worked with agents and investigators from the FBI, the Secret Service, as well as others in both the public and private sector.

"Keeping pace with the growing threat of cyber-enabled COVID-19 scams requires an alliance between the private sector and our law enforcement partners to safeguard our nation from this sort of nefarious conduct," said Director James M. Murray of the U.S. Secret Service.

According to the statement, The DOJ is also working with international partners to support similar initiatives in other countries.

"In one Justice Department-supported action, a state prosecutor in Brazil took down a fake site purporting to belong to a leading Brazilian brewery," said the statement. "The website publicized the distribution of free sanitizer, but in fact was infecting the computer systems of numerous Brazilian consumers with malware."

Across the Atlantic, the UK’s National Cyber Security Center (NCSC) has also taken on COVID-19 related scams. Within a day of establishing a reporting service for suspicious emails, the NCSC took down 80 malicious web based campaigns, according to a statement released Wednesday.

"While we have not seen a rise in email scams in the last month, coronavirus is the top lure currently used to conduct cyber crime, exploiting public unease and fear of the pandemic," said NCSC Chief Executive Officer Ciaran.

"We hope the success of the Suspicious Email Reporting Service deters criminals from such scams, but if you do receive something that doesn’t look right forward the message to us - you will be helping to protect the UK from email scams and cyber crime," he added ...

Hundreds of lawsuits stemming from the coronavirus pandemic are rapidly amassing in state and federal courts, the first wave of litigation challenging decisions made early during the crisis by corporations, insurance companies and governments.

According to the report published by SFGATE, claims have been filed against hospitals and senior-living facilities, airlines and cruise lines, fitness chains and the entertainment industry - 771 as of Friday, according to a database compiled by Hunton Andrews Kurth, an international law firm tracking cases that emerge from the pandemic.

Complaints reach across industries and state lines. Some seek significant monetary damages. Others ask for a judge to correct actions alleged to be harmful or in violation of contractual agreements.

In New York more than 250 lawsuits have been filed - the most of anywhere in the nation by far. Among them, is a set of lawsuits brought by a nurse's union against the state and two hospitals. They say officials failed to appropriately protect hospital workers with sufficient personal protective equipment (PPE) and ensure a safe workspace for those at higher risk of contracting the illness.

A similar suit was brought by a union representing state employees in Alaska.

Families who've lost loved ones at a senior-living residence in Atlanta have accused the facility of failing to protect its residents, alleging it allowed events and group meals to continue even as family visits were curtailed.

Jodi Gill, a criminal justice professor at Penn State University, is the named plaintiff in a class-action suit brought against Pennsylvania's health department for what she says is its failure to properly monitor the state's nursing homes, including the facility - Brighton Rehabilitation and Wellness Center in Beaver, Pennsylvania - where her 81-year-old father lives. Nursing homes there have recorded 60 deaths due to the virus, according to state data.

A devout man in Washington state, home to the country's first confirmed case of the novel coronavirus, sued its governor for setting policies that prohibit the small weekly Bible study he hosts at his home.

Other claims focus on voting rights and the potential expansion of absentee balloting. As it gets closer to the November general election, there are likely to be new petitions seeking judicial intervention, citing quandaries and concerns over access to the polls.

In California, customers have gone after a yoga studio and a massage parlor. A ski resort chain based in Denver also has been sued in the Golden State.

A number of class actions have been filed, including against Ticketmaster for its handling of canceled live events. One suit alleges the box office behemoth, and its parent company Live Nation, "sought to force their customers to bear the brunt of their own shortsightedness," according to the complaint filed in U.S. District Court for the Northern District of Illinois.

Disrupted travel accounts for several claims. The nation's major airlines - now on life support, dependent on billions in government relief funds - have been sued over policies preventing customers from obtaining cash refunds for travel that never transpired because of the pandemic.

Senate Majority Leader Mitch McConnell, R-Ky., has indicated he intends to address protections for businesses when the Senate reconvenes next week. "Our response," McConnell said, "must not be slowed, weakened, or exploited to set up the biggest trial lawyer bonanza in history." ...

Legislators return to the state Capitol on May 5 for the first time in nearly two months, confronting an urgent need to deal with coronavirus legislation including workers' compensation, and a formidable budget deficit.

The coronavirus pandemic has blown a multibillion-dollar hole in California’s budget, one that is likely to force Gov. Gavin Newsom and lawmakers to make difficult decisions in the years to come.

The story published in the San Francisco Chronicle claims that the shortfall is likely to total roughly $35 billion in 2020-21 alone, the nonpartisan state legislative analyst told senators who convened a special budget hearing on the coronavirus Thursday in Sacramento. The shortfall could snowball by an additional $85 billion in the years that follow, Legislative Analyst Gabriel Petek said.

"If budget problems of this magnitude were to emerge, they would exceed the state’s reserves," Petek said, in something of an understatement.

The surplus that the Legislature, Newsom and former Gov. Jerry Brown accumulated over the past decade totals about $21 billion, about $4 billion of which will probably be needed this year to meet the constitutional requirement of a balanced state budget.

And they don’t have much time to get it all done. They must pass a balanced budget by June 15 or go without pay, and will have only a couple of months after that to consider other bills before the legislative session is scheduled to end.

California still faces problems that existed before the pandemic, Rendon said, including the lack of affordable housing, widespread homelessness, climate change and lack of access to clean water in some parts of the state.

Assembly Bill 664, would amend LC 4663 and add LC 3212.8 to re-define "injury," for certain state and local firefighting personnel, peace officers, certain hospital employees, and certain fire and rescue services coordinators who work for the Office of Emergency Services. The bill would create a conclusive presumption, that a communicative disease injury arose out of and in the course of the employment.

Senate Bill 1159, would make changes to LC 3202.86 to make disputable (rather than conclusive) presumptions pertaining to injury caused by COVID-19. The bill would apply to anyone deemed to be a "critical worker."

Since most first responders such as firefighters and peace officers are employed by governmental entities, the costs of these two measures for the most part will be paid by taxpayers, and will be a burden on existing overburdened governmental budgets.

They must also handle bills ranging from compensation for sick essential workers to planning for a November election that’s likely to be done mostly by mail ...

Michael Murdoch was employed as a millwright for Siemens Industry on a construction project at SFO. He was working on a baggage conveyor belt cutting a metal side guard. The conveyor began moving unexpectedly, pulling Murdoch into an opening, where he remained stuck until he was able to pull himself out.

In May 2012, Plaintiffs filed a lawsuit against respondent Brock Solutions for negligence and loss of consortium. The complaint alleged that Brock was the subcontractor responsible for "the design, installation, and programming of the computerized system" that controlled the baggage conveyor system Murdoch was working on when he was injured.

The case was tried in 2014. The jury determined Brock and Siemens were negligent, and their negligence was a substantial factor in plaintiffs’ injuries. The jury awarded plaintiffs $3,895,220, comprised of $2,395,220 in economic damages and $1,500,000 in non-economic damages. The jury allocated 80 percent of the fault to Murdoch, 10 percent to Brock, and 10 percent to Siemens. The court reduced the economic damages by Murdoch’s percentage of fault, and offset settlement payments and workers’ comtpensation benefits Murdoch received before trial.

Plaintiffs moved for a new trial, arguing the jury’s apportionment of fault was against the weight of the evidence. The trial court agreed and granted the motion, concluding Brock’s liability "was significant and in excess of the 10% that the jury apportioned." Brock appealed and plaintiffs filed a cross-appeal. In Murdoch I, this court affirmed, holding that the trial court did not abuse its discretion in granting the motion for a new trial.

Following a second trial, the jury found that Brock was negligent, but that the negligence was not a substantial factor in causing Murdoch’s injury. In July 2018, the trial court entered judgment in favor of Brock. Murdoch appealed, but the judgment was affirmed in the unpublished case of Murdoch v Brock Solutions.

During the second trial, Murdoch testified that he agreed "the most important rule for anybody working on top of energized equipment is lockout, tagout." He admitted he had failed to lockout the conveyor belt on the day of the accident at SFO because he thought a Bass Electric employee had done so.

The trial court did not err in permitting a retrial on damages. In their motion for a new trial following the 2014 verdict, plaintiffs requested a new trial rather than a trial only on liability. The August 2014 court order granting the motion did not limit the new trial to the liability issue. Neither did the March 2017 decision of this court affirming the trial court limit the issues on retrial. On April 4, 2018, the eve of the April 9 scheduled trial, plaintiffs unsuccessfully moved in limine to limit the retrial to liability only.

Plaintiffs argue the trial court abused its discretion in allowing evidence regarding Murdoch’s workers compensation benefits, which, they argue, "was offered to argue that Mr. Murdoch’s injuries were not serious based upon his failure to obtain medical care from collateral sources."

However, plaintiffs cite to no portion of the hearing on the motions in limine where they argued that, if the trial court allowed retrial on damages, the court should exclude evidence regarding Murdoch’s workers compensation benefits due to the collateral source rule.
...

San Diego area psychiatrist Prakash Bhatia, M.D., has paid $145,000 to resolve allegations that he overprescribed opioids. Dr. Bhatia previously owned and operated Progressive Health and Wellness in El Cajon, California, practicing pain medicine.

The settlement stems from an investigation that the Drug Enforcement Administration initiated into whether Dr. Bhatia improperly prescribed opioids to his patients at Progressive Health and Wellness (PHW) in violation of the civil provisions of the Controlled Substances Act.

Pursuant to the Controlled Substances Act, health care providers may write prescriptions for opioids only for a legitimate medical purpose while acting in the usual course of their professional practice.

Based on its investigation, the United States alleged that from March 2013 to December 2017, Dr. Bhatia wrote opioid prescriptions at PHW, including for hydromorphone, morphine, methadone, oxycodone, fentanyl and oxymorphone without a legitimate medical purpose and/or outside the usual course of his professional practice, in violation of the Controlled Substances Act.

The United States alleged that Dr. Bhatia also prescribed these medications in combination with depressant medications (including benzodiazepines and muscle relaxants), which are known to increase the risk of abuse, addiction and overdose.

This matter was handled by Assistant U.S. Attorneys Dylan M. Aste and George V. Manahan of the U.S. Attorney’s Office for the Southern District of California, with the assistance of agents and investigators from the DEA.

The claims resolved by this settlement are allegations only and there has been no determination of liability ...

Upon a unanimous vote of its members, the Appeals Board issues this decision as a whole as an en banc decision. The new decision is named "IN RE: COVID-19 STATE OF EMERGENCY EN BANC - NO. 3" and is therefore its 3rd en banc decision suspending or modifying the rules of practice and procedure to adapt to the COVID-19 pandemic.

WCAB Rule 10620 (entitled "Filing Proposed Exhibits") states in full: "Any document that a party proposes to offer into evidence at a trial shall be filed with the Workers' Compensation Appeals Board at least 20 days prior to the trial unless otherwise ordered by the Workers' Compensation Appeals Board." (Cal. Code Regs., tit. 8, former § 10393(h), now § 10620 (eff. Jan. 1, 2020), emphasis added.)

We will order suspension of the 20 day requirement pursuant to the authority to do so provided by the Rule. WCAB Rule 10670(b) provides in relevant part:

(b) The Workers’ Compensation Appeals Board may decline to receive in evidence:

... (3) Any document not filed 20 days prior to trial, unless otherwise ordered by a workers’ compensation judge or good cause is shown.

(Cal. Code Regs., tit. 8, former § 10622, now § 10670(b)(3) (eff. Jan. 1, 2020).)

In light of the state of emergency, there is good cause to permit receipt into evidence of documents not filed 20 days prior to trial.

Therefore, we will also order suspension of the 20 day requirement in WCAB Rule 10670(b)(3). A workers’ compensation administrative law judge retains the authority to decline to receive documents in evidence as otherwise permitted by WCAB Rule 10670(b) and the law.

This order will remain in effect until further notice ...

The Trump administration has tightened restrictions on the use of ethanol in hand sanitizer, citing safety concerns and forcing some suppliers to halt sales at a time of soaring demand, according to sources and documents seen by Reuters.

The crackdown is meant to protect consumers from potentially dangerous impurities in hand sanitizer, but could worsen shortages at a time when households, hospitals and nursing homes need sanitizer to fight the coronavirus pandemic.

The restrictions have dealt a blow to ethanol producers. The industry has invested millions of dollars since last month to ramp up the output of corn-based alcohol sanitizer to offset slumping fuel demand.

Ethanol production has fallen to a record low of 537,000 barrels per day and halved from month-ago levels as gasoline demand has slumped. Fuel demand has dropped by roughly 30% worldwide due to stay-at-home orders.

The U.S. Food and Drug Administration (FDA) on April 15 issued limits on certain chemicals permitted in alcohol-based hand sanitizer, updating temporary guidance it adopted last month as the health crisis deepened and more manufacturers registered to produce hand sanitizer.

Since then, the FDA has notified several ethanol companies that their product does not meet safety standards, forcing them to halt production and cancel supply agreements, according to a source familiar with the matter. The source requested anonymity to speak candidly about the situation.

In one case, the FDA said it had found significant levels of the carcinogen acetaldehyde in ethanol supplied by a company for use in hand sanitizer, according to a recent email exchange seen by Reuters.

"FDA has reviewed your ethanol data and determined that it is not acceptable as an ingredient under the Agency’s temporary hand sanitizer policies," it wrote.

The FDA told Reuters it decided to update the guidance after reviewing ingredient data supplied by ethanol companies and fielding multiple questions from companies seeking clarification about its temporary production policies.

The agency said in a statement it was committed to "working with manufacturers, compounders, state boards of pharmacy and the public to increase the supply of alcohol-based hand sanitizer available to Americans."

The FDA did not immediately respond to a request for details on the number of ethanol companies it had notified for failing to meet its April 15 guidance. Its move has drawn criticism from suppliers who say it should further ease its safety standards to ensure hand sanitizer is widely available during the coronavirus outbreak ...

The United States Attorney’s Office for the Northern District of California unsealed charges in a criminal complaint charging Rodney L. Stevenson II with wire fraud for his operation of an e-commerce website that allegedly scammed customers into paying for N95 masks that they never received.

Stevenson, 24, of Muskegon, Michigan, controlled EM General, a Michigan limited liability company created in September 2019. EM General operated a website that purported to sell an available inventory of "Anti-Viral N95" respirator masks. An N95 respirator mask is a particulate-filtering facepiece respirator that meets the U.S. National Institute for Occupational Safety and Health N95 standard of air filtration. N95 masks, which cover the user’s nose and mouth, are required to filter at least 95% of airborne particles.

The complaint alleges that EM General, through its website, falsely claimed to have N95 respirator masks "in stock" and available for sale and shipment during the shortage caused by the COVID-19 pandemic. Based on these and other representations, customers bought masks from the website, sometimes paying EM General more than $40 or more per mask.

Stevenson is alleged to have taken several steps to fraudulently make EM General appear to be a legitimate company. For example, Stevenson invented a fictional Chief Executive Officer, "Mike Thomas," from whom fraudulent emails were sent, as well as several other fake officers or employees of the company.

Stevenson also used stock photographs from the internet to create a page depicting this team of fake professional management staff. After customers made their first purchase, the defendant offered additional masks to those customers at discounted prices.

The complaint describes how four victims paid for, but did not receive, N95-compliant masks. Three of the four victims reside in the San Francisco Bay Area, including one hospital employee.

Also described in the complaint are follow-up emails from EM General to customers in which false excuses about supply and shipping issues were made. Three of the four customers in the complaint never received the promised products at all despite multiple representations that the masks had been shipped.

The fourth customer paid over $400 on March 2, 2020, for N95 masks represented to be "in stock," and, after raising several complaints, on March 27, 2020, received cheaply made fabric masks. The masks, delivered in a white envelope with no return address, did not comply with the N95 standard that EM General purportedly sold.

Stevenson is charged with wire fraud, in violation of 18 U.S.C. § 1343. A complaint merely alleges that crimes have been committed, and the defendant is presumed innocent until proven guilty beyond a reasonable doubt ...

Mitchell International Inc., headquartered in San Diego, California, published the results of a survey of about 100 workers’ compensation professionals in the U.S.

It wanted to know what the industry thinks is next in workers’ compensation and how will technology affect our industry in 2020 and beyond? And how does the outlook for technology in our industry compare to the industry’s perspective in 2017, when Mitchell conducted a similar survey?

To find out, it surveyed nearly 100 workers’ compensation professionals at a range of companies, including insurance carriers, third-party administrators, public entities, brokers, and managed care and risk management companies.

The results of the 2020 survey demonstrated that the adoption of technology is now, more than ever, at the forefront of the evolution of workers’ compensation claims management, and is a trend expected to continue and grow into the foreseeable future.

Half of the responding workers’ compensation professionals believe that cost containment is the driving factor for adopting advanced technologies such as artificial intelligence (AI), predictive analytics, telemedicine, wearables, mobile technology and chatbots.

Many respondents believe that telemedicine will have the biggest impact on the industry within the next five years (32%), followed closely by artificial intelligence (30%) and predictive analytics (20%).

Almost all of the 2020 respondents said they have either already adopted (20%) or are at least somewhat likely to adopt (74%) these new advanced technologies within their organization within the next five years. Of the 20% of respondents currently using these technologies, the majority are using predictive analytics, followed by telemedicine and mobile.

Additionally, 33% of respondents said they are currently using claims analytics to make business improvements, and 36% said they are either currently implementing or planning to implement claims analytics in the next five years. Participants also reported that, out of a list of common challenges, the most pressing issues their organizations face today are workflow efficiency (28%), followed by cost containment (19%) and the changing workforce/employee turnover (15%).

It is noted that this survey was undertaken before the COVID-19 pandemic; however, it is anticipated that the trends will continue as reported with an additional emphasis on telemedicine which has proven to be so important for treating injured workers during this time ...

James P. Martinez suffered an admitted cumulative trauma injury to his neck, low back, knees, shoulders and hypertension, while he was employed as a correctional officer for the State of California, Department of Corrections.

The workers' compensation administrative law judge found he sustained 79% permanent disability. This was based upon adding the disability from applicant's hypertension to the combined rating of applicant's orthopedic disabilities.

Defendant contests the WCJ's rating of applicant's permanent disability. Defendant contends that substantial medical evidence does not support adding applicant's permanent disability, and that applicant has not rebutted the presumption favoring the use of the combined values chart (CVC) of the permanent disability rating schedule to rate multiple impairments.

The WCAB agreed, and reversed in the panel decision of Martinez v State of California Department of Corrections.

The DEU rating was a combined 66% orthopedic permanent disability and a 13% hypertension permanent disability, which added together equaled the 79% permanent disability awarded by the WCJ.

Defendant argues that the WCJ erred by instructing the DEU to use the addition method to combine applicant's WPI ratings, rather than use the CVC, because just as the rating under the AMA Guides is presumed correct, the use of the CVC is presumed to provide the correct permanent disability rating where there are multiple disabilities.

The only reference in the record discussing the basis for the use of the additive method for rating applicant's hypertension is in Dr. Hyman's deposition testimony. In his testimony, Dr. Hyman stated that the reason the disability from applicant's hypertension should be added to his orthopedic disability is due to the absence of overlap between the disabilities.

He explained that applicant's hypertension does not impair his activities of daily living, and there is no overlap between his orthopedic and internal medicine impairments.

"Without more, this does not constitute substantial medical evidence to establish the primacy of the additive method over the use of the CVC, otherwise, the CVC would become irrelevant in any case involving injury to multiple body parts." ...

A federal court entered a permanent injunction halting a purported "ozone therapy" center in Dallas, Texas, from offering unproven treatments for coronavirus disease (COVID-19), the Department of Justice announced today.

In a civil complaint and accompanying court papers filed in U.S. District Court for the Northern District of Texas, the Department of Justice alleged that the defendants, Purity Health and Wellness Centers and one of the firm’s principals, Jean Juanita Allen, fraudulently promoted so-called ozone therapy as a treatment for COVID-19. The defendants agreed to be bound by a permanent injunction barring them from representing that ozone could be used to treat or cure COVID-19. The order was entered by U.S. District Judge Sam A. Lindsay in Dallas.

"The Department of Justice will not stand by and permit the fraudulent promotion of supposed COVID-19 treatments that do no good and that could be harmful," said Assistant Attorney General Jody Hunt of the Justice Department’s Civil Division. "We are working with law enforcement and agency partners to stop those who attempt to profit by selling useless products during this pandemic."

"This defendant preyed on public fear, peddling bogus treatments that had absolutely no effect against COVID-19," said U.S. Attorney Erin Nealy Cox for the Northern District of Texas. "As we’ve said in past COVID-19 civil cases: the Department of Justice will not permit anyone to exploit a pandemic for personal gain."

According to court filings, Allen told a caller posing as a potential customer that although ozone could be dangerous, Purity’s treatment was safe even for children, would sanitize anything, and would eradicate viral or bacterial infections.

The court filings alleged that Allen claimed Purity’s ozone treatments - which she asserted would increase oxygen in the blood, making it impossible for viruses to manifest - were 95 percent effective even for someone who had tested positive for COVID-19. She claimed a team of "doctors" had recommended an "ozone steam sauna" for someone with COVID-19.

On Instagram, Purity Health & Wellness claimed ozone was the "only prevention" for COVID-19 and insisted the treatment could "eradicate" the virus. The center also claimed ozone could combat other deadly diseases, including cancer, SARS, and Ebola.

"We will not allow anyone to illegally profit by exploiting the fear and anxiety related to the COVID-19 pandemic," said FBI Dallas Special Agent in Charge Matthew J. DeSarno. "The FBI and our partners are working together every day to prevent, detect, and dismantle COVID-19 fraud."

"The FDA will continue to help ensure those who place profits above the public health during the COVID-19 pandemic are stopped," said Stacy Amin, Food and Drug Administration Chief Counsel. "We are fully committed to working with the Department of Justice to take appropriate action against those jeopardizing the health of Americans with unproven treatments." ...

As Americans delay elective surgeries and avoid doctors and hospitals during the coronavirus pandemic, a report in Reuters Health says that healthcare spending declines have more than offset the added costs of COVID-19 care, insurance executives and experts say, boosting U.S. health insurer profits.

Those gains, however, could be short term, depending on how quickly the coronavirus outbreak subsides and healthcare business begins to return to something close to normal.

UnitedHealth Group Inc, the largest U.S. health insurer, last week posted first-quarter earnings above Wall Street expectations and kept its profit forecast in place for 2020, despite an economy battered by massive layoffs and business shutdowns to slow the spread of the virus.

When Anthem Inc, Humana Inc and Cigna Corp report their first-quarter results this week, Wall Street analysts expect a similar trend. CVS Health, a pharmacy company that owns health insurer Aetna, reports in May.

"The costs from COVID-19 are going to be actually very small and more than outweighed by the deferral of elective procedures. The net impact is going to be positive for them," said Jeff Jonas, portfolio manager with Gabelli Funds.

While extended hospital stays, particularly in intensive care units, can rack up massive bills for individuals, that pales compared to the savings from millions of Americans delaying care. Those savings also outpace the costs to insurers of waiving COVID-19 related co-pays, deductibles, tests and other care, which most insurers have agreed to waive.

Most of the country has been under stay-at-home orders, and many non-emergency care visits and elective procedures have been canceled to help hospitals manage the surge of coronavirus patients.

The largest U.S. for-profit hospital operator, HCA Healthcare Inc, said it has seen a 70% drop in outpatient surgeries so far in April compared with a year ago, while inpatient admissions declined 30%.

Federal authorities have said hospitals could resume more routine care as appropriate, as states begin to ease some social-distancing measures.

It is unclear how quickly that will happen. Much depends on how well contained the coronavirus outbreak is in a specific city or state. Hospitals will also need increased access to coronavirus testing and take additional precautions to help prevent transmission between staff and patients.

Health plans and employers who provide insurance have seen an overall decline in healthcare use of about 30% to 40% excluding COVID-19 patients, according to Tim Nimmer, the global chief actuary at Aon, a benefits company that advises large corporations and health plans.

"For each month that this goes on, we are expecting about 1.5% to 2% in annual costs to be reduced," Nimmer said. "The number one issue is how long will this go on."

Right now, that drop is outweighing the costs of patients with COVID-19, Nimmer said. Companies with younger, healthy employees are experiencing even less spending.

Based on claims information it has reviewed, Aon said the cost of a hospitalized patient runs from $30,000 to $80,000 while a patient who goes to the hospital and is sent home runs up claims of around $1,500 to $2,500.

Health insurers could largely benefit this year from a more gradual resumption of discretionary and elective care, analysts agreed ...

The Division of Workers’ Compensation (DWC) issued its Notice of Emergency Regulatory Action to address the ongoing need for medical-legal evaluations and to prevent a backlog of medical-legal evaluations resulting from stay-at-home orders throughout the state.

These emergency regulations will help injured workers and employers continue to move their workers’ compensation claims towards a resolution and avoid additional and undue delay.

The regulations concern how medical-legal evaluations and payment for those evaluations can occur during this emergency period. Also provided in the regulations are alternative forms of service for required forms related to medical-legal evaluations and reports.

Proposed QME Regulation 36.7 specifies how and under what circumstances the parties may serve documents electronically.

Proposed QME Regulation 78 specifies how and under what circumstances QME, AME and other evaluations may be conducted by telehealth.

The emergency regulations will be filed with the state’s Office of Administrative Law (OAL) on May 4, 2020 and can be found on the DWC website.

OAL has up to 10 days to consider and approve emergency rules. Upon OAL approval and filing with the Secretary of State, such regulations are effective for 180 days.

If during this 180-day period the Division determines the need to readopt the emergency regulations, it may do so for an additional 90 days. For information on the OAL emergency regulatory procedures and to learn how you may comment on these emergency regulations, please visit OAL’s website.

A notice will be posted on the DWC website when these emergency regulations become effective ...

The COVID-19 pandemic and resultant stay-at-home orders are significantly impacting California’s economic, health care and workers’ compensation systems.

Some COVID-19 workers’ compensation claims have already been filed. However, at this time, it is unclear what proportion of the illnesses and deaths directly resulting from the virus will ultimately be determined to be work-related.

Some states have enacted presumptions of COVID-19 claims being work-related for certain front line workers and similar proposals are under discussion in California.

On April 8, 2020, Assemblyman Tom Daly, Chair of the Assembly Insurance Committee, requested the WCIRB to provide an estimate of the potential cost impact of presumptions provided to front line workers in California. Specifically, the WCIRB was requested to provide the cost impact of a conclusive presumption for health care workers, firefighters, EMS and rescue employees, front line law enforcement officers and other essential critical infrastructure (ECI) employees.

In response and to provide insight on the potential cost impact of COVID-19 claims on the California workers’ compensation system, the WCIRB has completed an initial analysis of these costs.

The cost estimates in this report are based on WCIRB data including unit statistical reports, aggregate financial data calls and medical transaction data. We also relied upon external data from the American Community Survey1 (ACS), the Division of Workers’ Compensation (DWC) Official Medical Fee Schedule, and a number of published studies on COVID-19 incidence rates and medical treatment patterns and costs.

At times, it relied upon judgmental assumptions based on published research or feedback from workers’ compensation experts that may or may not materialize.

In general, the cost impact of COVID-19 claims will vary significantly based on the number of workers covered by a presumption, the proportion of these workers that have COVID-19 and the number of workers’ compensation claims that are filed as a result.

Given the current level of uncertainty surrounding these factors, the cost estimates in this Research Brief are presented as a range of potential impacts based on varying assumptions of the number of COVID-19 claims filed.

On this basis, the WCIRB estimates that the annual cost of COVID-19 claims on ECI workers under a conclusive presumption ranges from $2.2 billion to $33.6 billion with an approximate mid-range estimate of $11.2 billion, or 61% of the annual estimated cost of the total workers’ compensation system prior to the impact of the pandemic.

The complete analysis is available from the WCIRB ...

On April 6, 2020 the Workers’ Compensation Appeals Board issued an en banc Order allowing limited filing of specified documents via email directly to the Appeals Board and to the Division of Workers’ Compensation’s district offices. To assist the workers’ compensation community the Appeals Board and the Division offer the following guidance on emailing documents to the appeals board and the district offices.

Emailing documents directly to the Appeals Board

-- Documents relating to any matter currently pending before the Appeals Board, including but not limited to cases in which a petition for reconsideration has been granted for further study may be filed by emailing to WCABEmergencyBox@dir.ca.gov. Documents sent by email should include the information required for pleadings by WCAB Rule 10520 and an email address for the sending party. (Cal. Code Regs., title 8, former § 10498, now § 10520 (eff. Jan. 1, 2020).) Documents sent by email should otherwise comply with the WCAB’s Rules.

-- Do not email petitions for reconsideration, removal, or disqualification and answers to the Appeals Board’s emergency email box. Those documents should still be filed electronically in EAMS or JET File or by email with the DWC district office having venue pursuant to WCAB Rule 10940(a). (See Cal. Code Regs., title 8, former § 10840(a), now § 10940(a) (eff. Jan. 1, 2020).)

Emailing documents to the DWC district offices where the filing party cannot e-file, JET file or file by U.S. mail

-- Documents that must be filed with DWC and which are subject to statutory time limits, such as petitions for reconsideration, removal, disqualification, applications for adjudication of claim, and petitions to reopen, may be filed via email directly to the district office having venue. Documents that are not subject to statutory time limits may not be filed via email. If such documents cannot be e-filed or JET filed, they must be filed via U.S. mail. The division will reject documents that are improperly filed via email. DWC reminds parties to only use this alternative filing option for these limited documents.

-- Email addresses for the 24 district offices may be found at the office locations page on the DWC website ...

Labor and business leaders in California are furiously lobbying the governor's office over a sweeping change the administration is said to be considering to the state workers' compensation system for health care workers and others on the front lines of the Covid-19 pandemic.

According to Politico's report, Gov. Gavin Newsom's office did not provide a response Monday nor confirm that a proposal is in the works. But those familiar with the discussions, as well as letters sent to the governor in recent weeks by high-profile groups, suggest the change would create a presumption that certain "essential workers" who contract the disease were exposed on the job — and, therefore, entitled to workers' compensation benefits.

Such a shift could cost employers between $2.2 billion and $33.6 billion per year, the Workers’ Compensation Insurance Rating Bureau of California estimated on Monday. The bureau's mid-range estimate of $11.2 billion amounted to 61 percent of the system's typical costs per year.

A bill amended in the state Senate last week would have a similar effect, though possibly with fewer types of workers. CA AB664 (19R) would extend to "certain state and local firefighting personnel, peace officers, certain hospital employees, and certain fire and rescue services coordinators." Assemblymembers Jim Cooper (D-Elk Grove), a former Sacramento County Sheriff's Department captain, and labor champion Lorena Gonzalez (D-San Diego) are its main authors.

Business leaders argue that shift could strain the system and cost employers billions of dollars in increased premiums at a time when many are laying off workers and trying to stay afloat.

"Many businesses and their owners are casualties of the necessary economic shutdown," wrote California Chamber of Commerce President Allan Zaremberg to Newsom and his staff in a letter dated April 7. "They cannot be expected to shoulder a new employer-financed social safety net, with expensive new mandates, at precisely the moment when small businesses are shuttering, employee hours are cut, and uncertainty about the future is the new normal."

In a statement Monday, CalChamber pointed to the new cost estimate and noted that the association had expressed concern to Newsom about "an overly broad executive order because it would create an enormous and unnecessary burden on the worker’s compensation system."

But a prominent labor leader has argued that it is the right thing for the state to do.

"Workers on the frontlines of the COVID-19 pandemic put their lives at risk just doing their jobs," wrote Art Pulaski, head of the California Labor Federation, in a late March letter to Newsom. "If they are infected with COVID-19, the workers’ compensation system must quickly provide medical and indemnity benefits — such workers should not have to fight denials and delays while fighting for their lives."

Sean Walsh, who runs a consulting firm with former Gov. Pete Wilson and was a senior policy adviser to former Gov. Arnold Schwarzenegger, said he had briefings from four business groups on Monday about an executive order Newsom is contemplating that would alter the workers’ compensation system for those affected by the pandemic.

The California Farm Bureau Federation is a nonprofit organization of farmers and ranchers consisting of county Farm Bureaus from nearly every county in California, established in 1919 to work for the betterment of family farmers and ranchers in California.

"The problem is that it puts in the pockets of employers the responsibility for the costs of COVID-19 illnesses where the exposure and infection could have just as easily happened off the job as on the job," said Bryan Little, Director of Employment Policy for California Farm Bureau Federation (CFBF) ...

Yang Li was "the sole owner" of Imperial Foot Spa, which was identified on her City of San Jose business license as "a massage parlor."

Deputy Labor Commissioner Margaret Flanders and her partner conducted an inspection of Imperial Foot Spa on August 20, 2015. They were directed to see Li, the owner.

Flanders asked Li for her workers’ compensation insurance information. Since Li could not show that she had a valid workers’ compensation insurance policy, Flanders issued a "Stop Order, Penalty Assessment . . . in the amount of $9,000 for having six employees working without a valid workers’ compensation insurance policy." Flanders also gave Li a "Notice to Discontinue Labor Law Violations."

Li appealed the order and assessment the following day.

On August 23, 2015, Flanders paid a follow-up visit to Imperial Foot Spa, and observed the business was open at 9:23 a.m. and a woman was working folding towels in a massage room.

The hearing on Li’s appeal was held on August 26, 2015. The only witnesses who testified at the hearing were Li and Flanders. Li testified that the workers at her business were not her "employees" but her "co-collaborators." She explained that she had "written collaboration agreement[s] with those people who work there where collaborators were not employer-employee kind of relationship."

Li submitted into evidence contracts between her and Helen, Judy, Jenny, and James. Each of these contracts provided that Li and the worker "belong to collaborative, not employment relationship."

The hearing officer found that Li had six employees working for her. The written findings expressly applied the multi-factor test set forth in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello).

Li filed a petition for mandate with the Court of Appeal. The hearing officer was affirmed in the unpublished case of Li v. Cal. Dept. of Industrial Relations.

Generally, . . . the individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations. (Borello, supra, 48 Cal.3d at p. 351.) ...