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The COVID-19 pandemic and resultant shelter-in-place orders disrupted nearly all business activity, especially access to medical care. While the specific timing of disruptions varied by state, April 2020 saw many healthcare facilities suspend all nonurgent medical procedures.

In a newly published study, the National Council on Compensation Insurance associated costs with the time to treatment for WC claims based on historical information to provide some insight into the impact of postponed medical care for specific WC injuries.

The pandemic’s impact on medical services includes:

- - A decline in active claim volume
- - An increased use of telemedicine
- - Minimal change in both the share and seriousness of injuries treated in an emergency room (ER)
- - An increase (after April 2020) in the use of ambulatory surgical centers (ASCs) above pre-pandemic levels

With respect to time to treatment, the pandemic:

- - Did not adversely impact access to care, as measured by the time from injury to initial treatment
- - Produced a backlog of surgeries in April and May 2020 that diminished throughout the summer
- - May have resulted in greater use of noninvasive treatments that, with comparable outcomes, are often preferred over invasive procedures

For four common WC injuries (one back, one shoulder, and two knee injuries), we studied historical experience of how the total incurred cost per case is associated with the time from injury to surgery and found:

- - Post-pandemic delays are typically too short to impact the average incurred cost per case
- - The largest cost increases occur for back and shoulder injuries - and only after exceptionally long delays to surgery
- - For these four WC injuries, the cost impact due to pandemic - based suspensions is minimal

While NCCI found clear evidence of small delays in access to care associated with the pandemic, it found no convincing evidence that either access to care or the quality of care was adversely impacted. The overall impact on claim costs directly associated with postponed medical care is uncertain. While still preliminary, it found no convincing evidence that access to quality care was adversely impacted ...
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/ 2021 News, Daily News
The Division of Workers’ Compensation announced that as of October 1, 2021, in-person hearings will resume at all DWC district offices except Eureka, which is now a completely virtual office, and satellite locations Bishop, Marysville, Chico and Ukiah, which will also remain virtual. In-person hearings will consist of trials, lien trials, expedited hearings and special adjudication unit (SAU) trials only.

Until further notice, DWC will continue to telephonically hear all mandatory settlement conferences, priority conferences, status conferences, SAU conferences, and lien conferences via the individually assigned judges’ conference lines as announced in Newslines issued on April 3, April 28, May 28, August 12 and September 9, 2020.

DWC’s hearing notices will be updated as of September 17, 2021. Thus, there may be a period of time after that date during which notices will state that trials, lien trials, expedited hearings and SAU trials are being heard on the conference lines when they are actually being held in-person.

Parties should be aware that although a notice might state that the case is being heard telephonically, if it is one of the types of cases listed above and not at a satellite office, it will be held in the assigned district office.

DWC appreciates the community’s patience during this transition. If a party to a DWC hearing has a question on a specific case, they may contact the DWC call center at (909) 383-4522.

DWC requires all visitors to DWC offices to wear face coverings regardless of vaccination status or county mandates, following recommendation from the California Department of Public Health (CDPH) ...
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/ 2021 News, Daily News
A lawsuit filed against See’s Candies, a century-old California institution, could make a fundamental change in the workers’ compensation system and its "exclusive remedy" provision.

Matilde Ek, a worker at a See’s distribution center in Southern California, contracted COVID-19 and apparently infected her 72-year-old husband, Arturo, who died. Ek said she worked on the See’s packing line without proper social distancing or other protections even though some workers were coughing, sneezing and showing other signs of COVID-19 infections.

She and her daughters sued See’s, alleging that since her workplace lacked sufficient safeguards against infection, the company is liable for his death.

See’s acknowledged that Ek’s illness was job-related but argued that since it was, the company was protected from liability for her husband’s death under the "exclusive remedy" doctrine.

Los Angeles Superior Court Judge Daniel M. Crowley refused, however, to throw out Ek’s lawsuit, agreeing with Ek’s attorney that her husband’s death was a separate event from her workplace infection.

Crowley’s ruling sent the issue into the appellate courts and it’s drawing attention from major California and national business groups, which see it as potentially undermining a bedrock principle of the workers’ compensation system.

The California Chamber of Commerce, California Workers' Compensation Institute, Restaurant Law Center, California Restaurant Association, National Association of Manufacturers, and National Retail Federation have filed documents in the case as amicus.

They argue that the "issue presented in the petition is extremely important to employers and their employees in California. As explained in the petition, the Superior Court’s overruling of petitioners’ demurrer was contrary to the longstanding "derivative injury rule" that establishes workers’ compensation as the exclusive remedy for all claims that are derivative of an employee’s covered workplace injury - including claims for injuries sustained by members of the employee’s household. The Superior Court created a new exception to that bright-line rule for injuries from COVID-19 that allegedly derive from employees who contract the virus in the employer’s workplace and then infect their family members."

"The potential impact of this decision on the balance between the workers’ compensation system and the civil court system can hardly be overstated."

The Court of Appeal docket reflects that an Order was issued to the Superior Court on July 21, 2021, directing that it show cause why a peremptory writ should not issue, ordering it to vacate its April 13, 2021 order overruling petitioners' demurrer to the complaint. The written return in opposition to the writ shall be served and filed on or before August 18, 2021. Any reply to the opposition shall be served and filed on or before September 16, 2021 ...
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/ 2021 News, Daily News
International Overdose Awareness Day is a global event held on 31 August each year. Its purpose is to raise awareness of overdoses, reduce the stigma of drug-related deaths and acknowledge the grief felt by families and friends.

On this day, acting U.S. Attorney Randy Grossman again warned the San Diego community about the serious fentanyl crisis and advocated an "all of society" approach to countering overdoses.

Grossman emphasized that federal prosecutors are leaving no stone unturned to hold peddlers of fentanyl accountable. "These overdose prosecutions seek to accomplish three goals: Deter the distribution of illegal drugs, send a clear message that traffickers of deadly poison will face serious repercussions, and provide a measure of closure and justice to those faced with devastating personal loss," Grossman said.

"Experts report that fentanyl is 50-100 times more powerful than morphine and so dangerous that in its purest form, even a very small amount can be deadly." San Diego County officials report that fentanyl overdose deaths surged during the pandemic and are expected to reach as high as 700 this year, a staggering increase over 2019, when 152 individuals died from fentanyl overdoses; in 2020, the 2019 number more than tripled to 461.

Grossman emphasized that, in the face of this crisis, "law enforcement is just one part of the solution. We need an all of society approach. As a community, we must consider ways that we can all play a role in furthering the public understanding that substance abuse disorder is a disease that warrants treatment, resources, and positive collective action."

In addition to prosecuting opioid dealers and smugglers, the U.S. Attorney's Office raises awareness of harm reduction, prevention and education efforts, through Opioid Coordinators Larry Casper and Dylan Aste, and Outreach Director Cindy Cipriani, who Co-Chairs the San Diego Prescription Drug Abuse Task Force. The U.S. Attorney’s Office also coordinates a quarterly Fentanyl Working Group, which brings together more than 100 law enforcement officers to share trends and best practices to combat the fentanyl scourge in this district.

Finally, the U.S. Attorney’s Office co-sponsors a biannual summit that convenes hundreds of leaders to focus on sharing information, reducing stigma, facilitating treatment, and implementing innovative evidence-based harm reduction prevention strategies. This year’s virtual Western States Opioid/Stimulant Summit, scheduled for November 4-5, 2021, will bring multiple disciplines together to address every aspect of the opioid crisis. National Institute of Drug Abuse Executive Director Nora Vokow, M.D., and Acting ONDCP Director Regina LaBelle will be featured speakers, along with dozens of leaders from the prevention, public health, treatment and law enforcement communities.

Grossman urged those struggling with a substance use disorder and their family members to talk to a doctor or pharmacist about Naloxone, which can reverse an opioid overdose.

To learn how to assist a person who is overdosing, including how to administer Naloxone, please see: https://www.sandiegorxabusetaskforce.org/naloxone.

To obtain information about treatment, see the resources at the PDATF Treatment website: https://www.sandiegorxabusetaskforce.org/treatment ...
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/ 2021 News, Daily News
The Controlled Substances Act of 1970 places federally regulated substances into one of five schedules depending on the substance’s "potential for abuse, "medical use," "safety," and likelihood of physical or psychological "dependence." See 21 U.S.C. § 812(b). Schedule I is the most restrictive schedule. Marijuana is currently a Schedule I substance. To merit scheduling in Schedule I, a substance must have "a high potential for abuse," "no currently accepted medical use in treatment in the United States," and "a lack of accepted safety for use . . . under medical supervision."

Stephen Zyszkiewicz, joined by Jeramy Bowers, filed a one-page, handwritten petition to the United States Drug Enforcement Administration ("DEA") seeking the rescheduling of marijuana in all of its forms under the Controlled Substances Act ("CSA"), 21 U.S.C. § 801 et seq. Zyszkiewicz stated in his petition that he was in prison after a conviction for selling cannabis. In his petition he claimed the current situation of cannabis in Schedule I completely untenable since half the states allow for medical use.

The DEA wrote a letter in response, stating that Zyszkiewicz’s letter was not in the proper format for a petition but that it welcomed the opportunity to respond to his concerns. The DEA’s letter gave reasons for having denied an earlier rescheduling petition filed by Governors Lincoln Chafee of Rhode Island and Christine Gregoire of Washington State. Zyszkiewicz treated the DEA’s answer as a denial of his petition and unsuccessfully sought judicial review.

Zyszkiewicz petitioned for mandamus in the District Court for the District of Columbia. The district court denied mandamus, and the D.C. Circuit affirmed.

Subsequently in May 2020, Dr. Suzanne Sisley an Arizona-based medical marijuana researcher, Scottsdale Research Institute, LLC ("SRI"), Battlefield Foundation (the non-profit research arm of SRI), and three veterans who claim to suffer ongoing harm from cannabis’ status as a Schedule I drug(collectively, "Petitioners") asked for judicial review of the DEA’s response to Zyszkiewicz’s petition in the 9th Circuit which has jurisdiction over Arizona (and California). These new petitioners did not seek to intervene in Zyszkiewicz’s petition before the DEA, nor have they filed a petition of their own before the DEA.

The government challenges Petitioners’ standing and argues that Petitioners failed to exhaust their claims before the DEA.

The 9th Circuit held in the published opinion of Sisley v DEA that these petitioners satisfy Article III’s standing requirements, but that they have failed to exhaust their administrative remedies under the CSA. The Court therefore did not reach the merits of Petitioners’ arguments. It therefore dismissed their petition for review on this technical ground.

"We are well aware that reclassification of cannabis is a matter of ongoing active debate," U.S. Circuit Judge William Fletcher, a Bill Clinton appointee, wrote for the panel. "However, this is not an appropriate case in which to consider that issue."

In a concurring opinion, Judge Watford said "I write separately to note that, in an appropriate case, the Drug Enforcement Administration may well be obliged to initiate a reclassification proceeding for marijuana, given the strength of petitioners’ arguments that the agency has misinterpreted the controlling statute by concluding that marijuana ‘has no currently accepted medical use in treatment in the United States," ...
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/ 2021 News, Daily News
The Sacramento Bee reports that California lawmakers are considering legislation to require people to prove they’re fully vaccinated against COVID-19 before entering indoor public spaces like restaurants, bars, movie theaters, gyms, hotels and stadiums.

The proposal hasn’t been formally introduced in the Legislature, and the timeline for action is unclear.

Assemblywoman Buffy Wicks, D-Oakland, said the coalition of lawmakers supporting the concept has not decided whether to push the plan immediately before the legislative year’s Sept. 10 deadline or wait until January when lawmakers return to work. The Sacramento Bee obtained a copy of the draft legislation, which Wicks said is also subject to change.

Wicks said she is in conversations with business leaders, union representatives and others whose support is necessary for any legislation to be successful.

"I think everyone right now is honestly and earnestly at the table," Wicks said.

As currently written, the proposal would take effect immediately upon the governor’s signature, and would direct the Department of Public Health to develop an enforcement mechanism by Nov. 1.

The proposal, first reported by Politico, would create one of the strictest statewide vaccination requirements in the nation.

The state Department of Public Health said last week that it was leading the nation with a requirement that everyone attending an indoor event with 1,000 people or more show proof of vaccination or a negative COVID-19 test. That requirement takes effect Sept. 20.

Wicks said the new verification requirement could help drive up vaccination rates in California and finally end a pandemic that has spread in the state for 18 months. The system could help schools and businesses keep their doors open, Wicks said, and ease overburdened hospitals clogged with COVID-19 patients amid the delta variant surge ...
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/ 2021 News, Daily News
A landmark $575 million settlement with Sutter Health has now been given final approval by the court. The settlement agreement was reached in 2019, and resolves allegations by the Attorney General’s office, the United Food and Commercial Workers and Employers Benefit Trust (UEBT), and class action plaintiffs that Sutter’s anticompetitive practices led to higher healthcare costs for consumers in Northern California compared to other places in the state.
Sutter is the largest hospital system in Northern California. The Sutter network consists of some 24 acute care hospitals, 36 ambulatory surgery centers, and 16 cardiac and cancer centers. It also includes some 12,000 physicians and over 53,000 employees. In addition, Sutter negotiates contracts on behalf of the Palo Alto Medical Foundation and many affiliated physician groups.

This settlement is the result of litigation that began in 2014 when UEBT filed a class action lawsuit that challenged Sutter’s practices in rendering services and setting prices. They sought compensation for and an end to what they alleged were unlawful, anticompetitive business practices, which caused them to pay more than necessary for healthcare services and products.

In March 2018, the Attorney General’s office filed a similar lawsuit against Sutter on behalf of the people of California, seeking injunctive relief to compel Sutter to correct its anticompetitive business practices moving forward. The separate lawsuits were combined by the court into one case. In October 2019, one day before the trial, the parties reached an agreement to settle. The settlement was filed with the court on December 19, 2019, and in March, Judge Massullo granted preliminary approval.

Today’s finalized settlement requires Sutter to:

- - Pay $575 million to compensate employers, unions, and others covered under the class action, and to cover costs and fees associated with the legal efforts;
- - Limit what it charges patients for out-of-network services, helping ensure that patients visiting an out-of-network hospital do not face outsized, surprise medical bills;
- - Increase transparency by permitting insurers, employers, and self-funded payers to provide plan members with access to pricing, quality, and cost information, which helps patients make better care decisions;
- - Halt measures that deny patients access to lower-cost plans, thus allowing health insurers, employers, and self-funded payers to offer and direct patients to more affordable health plan options for networks or products;
- - Stop all-or-nothing contracting deals, thus allowing insurers, employers, and self-funded payers to include some but not necessarily all of Sutter’s hospitals, clinics, or other commercial products in their plans’ network.
- - Cease anticompetitive bundling of services and products which forced insurers, employers, and self-funded payers to purchase for their plan offerings more services or products from Sutter than were needed. Sutter must now offer a stand-alone price that must be lower than any bundled package price to give insurers, employers, and self-funded payers more choice;
- - Cooperate with a court-approved compliance monitor to ensure that Sutter is following the terms of the settlement for at least 10 years. The monitor will receive and investigate complaints and may present evidence to the court; and
- - Prevent anticompetitive practices by clearly defining clinical integration to include patient quality of care. The settlement makes clear that for Sutter to claim it has clinically integrated a system, it must meet strict standards beyond regional similarities or the mere sharing of an electronic health record, and must be integrating care in a manner that takes into consideration the quality of care to the patient population. This is important because clinical integration can be used to mask market consolidation efforts by hospital systems, when in fact there is no true integration of a patient’s care. For example, saying that hospitals are regionally close or that hospitals are sharing electronic health records is not enough, there must be close coordination that will lead to less costly, higher quality care for local communities.

A report by the University of California Berkeley showed that over-consolidation drives up prices for consumers. According to the study, outpatient cardiology procedures in Southern California cost nearly $18,000 compared to almost $29,000 in Northern California. For inpatient hospital procedures, the cost in Southern California is nearly $132,000 compared to more than $223,000 in Northern California, a more than $90,000 difference. A 2016 study found that a cesarean delivery in Sacramento, where Sutter is based, costs more than $27,000, nearly double what it costs in Los Angeles or New York, making Northern California one of the most expensive places in the country to have a baby ...
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/ 2021 News, Daily News
As the COVID-19 pandemic goes on, the workers’ compensation industry is still continuing to manage changing claim patterns and trends. As regulations and case rates continue to shift, Mitchell has analyzed its workers’ compensation claims data to identify how claim trends have changed over the past year and a half. This report includes claim data through June 30, 2021.

From January through June 2021, the finance and insurance, transportation and warehousing and healthcare and social assistance industries reported significantly more workers’ compensation claims than in the first half of 2019.

On the other hand, Mitchell’s data reveals that some industries have not seen prepandemic claim volumes return. The arts, entertainment, and recreation, educational services, and accommodation and food services industries are all still reporting significantly fewer workers’ compensation COVID-19 claims. Though claim volumes are still down, all three of these industries are experiencing an increase in claims compared to 2020 volumes, but are subject to pandemic-related regulations and trends that may explain the lower volume of claims.

About a quarter of workers’ compensation COVID-19 claims include only indemnity costs (no medical costs) - and those costs have declined over time. In January 2021, Mitchell reported that the average indemnity cost (lost wages etc.), for a COVID-19 claim was $2,400 in 2020; now, that number has decreased by almost half to $1380.

On the other hand, average medical costs associated with COVID-19 claims have remained somewhat steady, with just a slight 5% increase since Mitchell’s last report.

According to NCCI, the makeup of claim types is a clear reversal when compared to historical workers’ compensation claim data - prior to the pandemic, about 75% of all workers’ compensation claims were medical-only. NCCI published similar findings to Mitchell’s data, reporting that 75% of COVID-19 claims were lost-time claims.

It comes as no surprise that the healthcare and social assistance industry sector is still the source of the majority of COVID-19-related workers’ compensation claims, accounting for 49% of the total. Similar to Mitchell’s previous reporting, the healthcare industry is still accounting for almost five times more COVID-19-related claims than the next largest source, public administration, which makes up about 10% of all COVID-19 claims ...
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/ 2021 News, Daily News
A disbarred personal-injury lawyer was found guilty by a federal jury of 22 felonies for stealing the majority of a multimillion-dollar settlement that should have been paid to a car accident victim, as well as cheating on his federal income taxes.

Philip James Layfield, a.k.a. "Philip Samuel Pesin," 48, of Las Vegas and formerly of Coto de Caza, was found guilty of 19 counts of wire fraud, one count of mail fraud, one count of tax evasion, one count of failure to collect and pay over payroll taxes, and one misdemeanor charge of failure to file a tax return. Following the jury verdicts, Layfield was remanded into federal custody.

According to evidence presented at his 13-day trial, Layfield owned and operated law firms, including Layfield & Barrett (L&B), which, at various times, maintained offices in Irvine; Los Angeles; El Segundo; Park City, Utah; and Scottsdale, Arizona.

After he had misappropriated millions of dollars from clients’ settlements, Layfield relocated to Costa Rica. Just before getting on a flight to Costa Rica, Layfield borrowed $700,000 from a business lender by providing misleading information and failing to disclose material information. Then he used substantial portions of the loan proceeds for personal expenses, including buying a horse and shipping horses to Costa Rica.

In 2016, Layfield entered into an agreement to represent an individual who was struck by an automobile in Orange County and suffered significant injuries. After negotiating a $3.9 million settlement related to the accident, Layfield misappropriated most of the money owed to the victim - approximately $2 million for personal and business uses, including to pay clients whose settlement proceeds Layfield had earlier misappropriated. The car accident victim received only $25,000 of the settlement proceeds.

Layfield also failed to file a federal income tax return for the tax year 2016, despite receiving more than $3 million, including embezzled client settlement money. Layfield also caused his law firm to not pay approximately $120,976 in payroll taxes to the United States government for the second quarter of 2017.

The State Bar of California disbarred Layfield in October 2018. Layfield also was a certified public accountant, but his CPA license expired in July 2019, according to the California Board of Accountancy.

United States District Judge Michael W. Fitzgerald has scheduled a November 8 sentencing hearing, at which time Layfield will face a statutory maximum sentence of more than 200 years in federal prison.

Homeland Security Investigations, IRS Criminal Investigation and the FBI investigated this matter.

Assistant United States Attorneys Mark R. Aveis and Carolyn S. Small of the Major Frauds Section and Ian V. Yanniello of the International Narcotics, Money Laundering and Racketeering Section are prosecuting this case ...
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/ 2021 News, Daily News
A 62 year old Orange County pharmacy owner who admitted to carrying out a $1.8 million insurance fraud scheme was sentenced Friday to three years in state prison.

The Orange County Register reports that Divina Catalasan, owner of Quality Care Pharmacy at 2413 S. Fairview St. in Santa Ana, pleaded guilty in May to three felony counts of fraudulent healthcare claims and grand theft, along with a sentencing enhancement for aggravated white-collar crime.

Catalasan operated a "complex and secretive scheme" that bilked MediCal, Medicare and Cal Optima, the county’s insurance program for the needy, Deputy Attorney General Ryan Scott said in court papers.

The California Department of Health Care Services during a 2015 audit learned that from 2011 through 2015 Catalasan had billed Medi-Cal more than $540,000 above what her purchase inventory actually showed. A deeper look a unit investigating potential fraud ultimately turned up a total of $1.8 million in over-billings through Medi-Cal, CalOptima and Medicare, according the California Attorney General’s Office.

"The funds she stole were deposited and intermingled in her personal and business bank accounts," investigator Ernesto Cambrone alleged in a court motion seeking to analyze any money the defendant posts for bail to determine if it came from the alleged criminal behavior.

The pharmacy’s clientele consisted of residents of 40 board and care facilities throughout Southern California, according to prosecutors.

After arriving in the United States from her native Philippines in 1987, Catalasan worked her way up from a machine operator at a paper towel factory to become a pharmacy technician, a licensed pharmacist and ultimately a business owner, according to a sentencing brief.

While out of jail awaiting trial, a court filing said, she worked with members of her church to make and donate masks to medical professionals, nursing home patients, grocery store workers and female inmates.

At her sentencing, she was given credit for 602 days of time served in local lockup, records show ...
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/ 2021 News, Daily News
American employees say that the number one workplace feature they’ll be searching for post-COVID is the ability to continue working remotely when they please.

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

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

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

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

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

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

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

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

'Every major transformation like this comes with hurdles and uncertainties. In the end, the benefits of happier, more satisfied employees will justify the efforts to address these challenges head on. Employers should create policies and find solutions to meet these concerns and strengthen communications so that remote and hybrid work experiences will only improve in the post-pandemic era,' Landa adds ...
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/ 2021 News, Daily News
The California Attorney General announced a $3.31 million settlement against home respiratory services company, SuperCare Health Inc. for defrauding the state and federal government by knowingly billing Medicare and Medi-Cal for servicing ventilators that were no longer medically necessary.

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

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

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

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

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

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

The DMFEA receives 75% of its funding from the U.S. Department of Health and Human Services under a grant award totaling $41,264,032 for federal fiscal year 2020-2021. The remaining 25%, totaling $13,754,675 for fiscal year 2020-2021, is funded by the State of California. The federal fiscal year is defined as October 1, 2020, through September 30, 2021 ...
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/ 2021 News, Daily News
Decedent Tara O'Sullivan, worked as a police officer for the City of Sacramento when she died from a gunshot wound on June 19, 2019.

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

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

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

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

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

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

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

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

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

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

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

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

The significant fact here is that they signed a lease together prior to Ms. O'Sullivan's death. By signing a lease contract, there was a bona fide assumption of responsibility for support, which occurred prior to death. The only reason that Ms. O’Sullivan did not make payments prior to her death was lack of opportunity ...
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/ 2021 News, Daily News
Brenda Lee sustained an industrial injury on July 21, 2014 to her back, hips and left leg while employed by the Employment Development Department. Her case was resolved on May 14, 2018 by stipulation for 20% permanent disability based upon the rating of 50% (15.03.01.00 - 28 - 39 - 112D - 33 - 40) 20%.

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

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

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

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

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

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

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

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

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

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

Mr. Diaz's vocational evaluation was not substantial evidence on the issue of permanent disability in part because Mr. Diaz's reporting was based upon a misinterpretation of applicant's work restrictions.
...
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/ 2021 News, Daily News
The Workers’ Compensation Appeals Board has issued a notice of public hearing regarding proposed additions and amendments to its Rules of Practice and Procedure.

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

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

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

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

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

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

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

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

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

https://dir-ca-gov.zoom.us/j/85768405804?pwd=ckZwdkRrZk82eHk4M2tpTVlvaldwUT09
Password: 211916 ...
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/ 2021 News, Daily News
According to a recent study by McKinsey, consumer interest in telemedicine rose from 11% to 76% during the pandemic, 57% of healthcare providers said they viewed telemedicine more favorably, and 64% of providers are comfortable using telemedicine. In the course of just a few months, telemedicine physician visits rose 50 - 175x, depending on geography and type of practice.

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

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

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

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

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

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

Many of the legal and regulatory changes regarding telemedicine are temporary, and it remains to be seen which will become permanent and where ...
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/ 2021 News, Daily News
Proposition 22, California’s gig workers law, which allows companies like Uber and Lyft to treat workers as independent contractors - not employees - has been ruled unconstitutional and unenforceable by a Superior Court judge.

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

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

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

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

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

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

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

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

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

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

...
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/ 2021 News, Daily News
The 1993 case which created the "Privette" doctrine, set forth a strong presumption under California law that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety. This means that a hirer is typically not liable for injuries sustained by an independent contractor or its workers while on the job.

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

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

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

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

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

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

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

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

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

The Court concluded that, pursuant to Privette’s strong presumption that a hirer delegates to an independent contractor all responsibility for workplace safety, a landowner owes no duty to the contractor or its workers to remedy a known hazard on the premises or take other measures that might provide protection against the hazard ...
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/ 2021 News, Daily News
State law authorizes the California State Auditor to develop a state high-risk government agency audit program. The office implemented this program to improve the operation of state government by identifying, auditing, and recommending improvements to state agencies and statewide issues at high risk for waste, fraud, abuse, or mismanagement or for having major challenges associated with their economy, efficiency, or effectiveness.

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

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

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

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

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

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

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

The updated August 2021report indicted that these three departments were to be "retained on the high risk list." ...
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/ 2021 News, Daily News
In an online event, Tesla’s CEO announced some projects for the future, including a prototype of a humanoid robot that should arrive (in prototype) by next year.

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

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

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

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

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

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

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

The Tesla AI team developed an AI chip with the lowest latency possible and extremely high bandwidth deployed in a supercomputer called the Exapod ...
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/ 2021 News, Daily News
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