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The University College Hospital in London researchers were trying to reel in some of the surgical trauma inherent in all surgery. That trauma, better known as local inflammatory response, could be, they hypothesized, a cause of sub-optimal TKA patient outcomes. A team from University College Hospital in London, United Kingdom designed a study to check that hypothesis and the results, "Inflammatory Response in Robotic-Arm-Assisted Versus Conventional Jig-Based TKA and the Correlation with Early Functional Outcomes." was published in the November 2, 2022, edition of The Journal of Bone and Joint Surgery. And the study was reviewed in an article just published in Orthopedics This Week (OTW). Andreas Fontalis, M.D., M.Sc., M.R.C.S. co-author on the research explained to OTW, "There is high incidence of patient dissatisfaction following total knee arthroplasty (TKA), with up to 20% of patients reporting dissatisfaction in an otherwise uncomplicated TKA. The exact etiology is unclear; however, it has been speculated that the local inflammatory response precipitated by surgery may be implicated." "Our group recently conducted and disseminated the results of a randomized controlled trial studying the systemic inflammatory response in robotic-arm-assisted versus conventional TKA. We found that robotic-arm-assisted TKA was associated with a transient reduction on the 7th postoperative day and with less iatrogenic soft tissue injury and bone trauma. Conceptually, we hypothesized that it could also be associated with a reduction in local inflammation." "Furthermore, robotic-arm assistance has features that could translate to a reduced local inflammatory response such as the haptically controlled saw blade and stereotactic boundaries." "The surgical workflow during the conventional technique also involves the use of intramedullary femoral referencing and cutting blocks associated with production of substantial metal debris; all of which could be responsible for a more pronounced inflammatory response." "We therefore thought it important to objectively study the local inflammation incited by the two procedures and investigate whether any correlation was evident with functional outcomes." The researchers looked at 30 patients who had TKA for knee osteoarthritis - 15 of whom had traditional TKA and 15 who had robotic-arm-assisted TKA. They obtained data on the inflammatory markers IL-6, IL-8, and tumor necrosis factor (TNF)-alpha. "In our study," commented Dr. Fontalis to OTW, "robotic-arm assistance was associated with lower postoperative levels of IL-6 measured in the drain fluid at 6 and 24 hours and lower levels of IL-8 in the drain fluid at 6 hours. We also noticed that pain scores in the robotic-arm-assisted group were significantly lower on days 1,2 and 7 and that both the local and the systemic responses were correlated with pain." "We were surprised by how pronounced the differences were with respect to IL-6 levels at the 24-hour post-operative mark, which could reflect the ability of robotic technology to reduce bone and soft-tissue injury by averting multiple cuts and by more precisely executing the preoperative plan." "Our study furthers evidence of the advantages of robotic arm surgery. Larger studies and clinical correlation may lead to the increased adoption of enhanced technologies such as robotic-arm-assisted surgery in order to improve patient outcomes." ...
/ 2022 News, Daily News
Undergoing the rigors of hip or knee surgery at 90 years or older (nonagenarians) is, understandably, cause for concern and hesitation. But a group of researchers in California decided to look at the data and determine, objectively, if these patients indeed have an increased risk of complications and hospital readmission as compared with octogenarians and septuagenarians. Their work, "Hip and Knee Arthroplasty Outcomes for Nonagenarian Patients," was published in the November 15, 2022, edition of the Journal of the American Academy of Orthopaedic Surgeons. This study was reviewed in an article published by Orthopedics This Week (OTW). Co-author William Bugbee, M.D. chief of the Joint Preservation and Cartilage Restoration Service at Scripps Clinic in La Jolla, told OTW, "As our population ages and more people are living active lives into their nineties and beyond, we are more and more frequently confronted with elderly patients that are suffering with life-defining arthritis of the hip or knee. These patients, like their younger counterparts, are seeking ways to improve the quality of their lives and maintain their independence and mobility and have not had success with nonsurgical care." "It is now commonplace to perform joint replacement in patients in their seventies and eighties but much less common to do so when people are in their nineties. We felt that there was not enough data to guide us, as surgeons, to provide a clear risk, benefit counseling regarding joint replacement for these very elderly patients." Mining the Scripps database, the researchers identified patients aged 90 or older who had primary unilateral total joint arthroplasty (TJA) from 2010 to 2017 by one of five surgeons. A total of 58 nonagenarians were identified, with 31 undergoing total hip arthroplasty (THA) and 27 undergoing total knee arthroplasty (TKA). The researchers matched each nonagenarian with an octogenarian (age 80 to 84 years) and septuagenarian (age 70 to 74 years). The researchers noted complications - either medical or orthopedic - that occurred intraoperatively, during hospital admission, and after hospital discharge. The team found that nonagenarians had the highest rate of medical complications (33%) compared with octogenarians (14%) and septuagenarians (3%). However, the rates of surgical (orthopedic-related) complications were not statistically different among nonagenarians (12%), octogenarians (9%), and septuagenarians (10%). Hospital readmission rates were highest in nonagenarian patients (11%) but were not statistically different compared with octogenarians (5%) or septuagenarians (2%). "First, unsurprisingly, complication rates increased with age," stated Dr. Bugbee to OTW. "Nonagenarians had a higher overall complication rate, but most of these were minor and resolved over time. Importantly, deaths were not more frequent in the oldest group." "Elderly patients are generally most worried about being either ‘more crippled’ or dying when undergoing elective orthopaedic surgery. We found here was no statistically significant difference in orthopaedic complications or mortality in the older cohort of patients in their nineties compared to patients in their seventies or eighties. Furthermore, these patients are just as happy with their outcome as any other group." "I believe that this study demonstrates that age alone should not be an absolute contraindication to joint replacement surgery and that nonagenarians with severe hip or knee arthritis should be afforded the opportunity to choose surgical care as an alternative to the status quo of their lives. Surgical care involves risk at any age, but we can now better define that risk for this group of nonagenarian patients." ...
/ 2022 News, Daily News
In 2020, activism among players at academic Institutions sky-rocketed. In addition to social rights issues, player groups sought open communication between players and university and NCAA leadership, and, ultimately, a "college football players’ association" to represent them. And these players at Academic Institutions have been gaining more power as they better understand their value in generating billions of dollars in revenue for their colleges and universities, athletic conferences, and the NCAA. And their litigation is being closely followed by employment law communities. In February 2021, General Counsel for the National Labor Relations Board, Jennifer Abruzzo, issued a memorandum (GC 21-08) on the status of college athletes as "employees" under the National Labor Relations Act. Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act,. The student athletes also found support from the United States Supreme Court when it decided Alston v NCAA 141 S. Ct. 2141 (2021) in June of last year. SCOTUS recognized that amateurism in college sports has changed significantly in recent decades, and ruled that the NCAA can’t use the‘amateurism’ label to break antitrust laws. Justice Kavanaugh, in his concurring opinion in Alston, went further. He strongly suggested that the NCAA’s remaining compensation rules also violate antitrust laws and questioned "whether the NCAA and its member colleges can continue to justify not paying student athletes a fair share" of the billions of dollars in revenue that they generate. Moreover, he suggested that one mechanism by which colleges and students could resolve the difficult questions regarding compensation is by "engag[ing] in collective bargaining." This SCOTUS decision is likely a precursor to more changes to come in college athletics. Specifically, commentators argue that, as courts "continue to chip away at NCAA restrictions on benefits to student-athletes, more compensation that is untethered to academics brings student-athletes more fully within ‘employee status’ under the law." After these successful legal developments, a group that advocates for college athletes in California filed unfair labor practice charges in February 2022, with the National Labor Relations Board on behalf of football players and men’s and women’s basketball players at UCLA and the University of Southern California. The charges, made by the National College Players Association, also name the NCAA and the Pac-12 Conference, essentially claiming that the association and the conference jointly employ the athletes along with the schools. The filings follow a similar effort started by another athlete-advocacy group, the College Basketball Players Association, which filed a charge against the NCAA. Both bids come in the wake of the National Labor Relations Board’s general counsel memorandum in September. Following this filing, on December 15, 2022, the Regional Director of the Los Angeles Region of the National Labor Relations Board the NLRB’s Division of Advice has directed the NLRB Region to pursue the NCPA’s unfair labor practice (ULP) charges against USC, the Pac-12 Conference, and the NCAA as joint, statutory employers of USC football players, men’s basketball players, and women’s basketball players. At the request of NLRB’s Division of Advice, the NCPA agreed to withdraw its ULP charge against UCLA, a state funded school, but will continue against USC a private institution, and the NLRB’s Los Angeles Region will now take action to force a settlement with the employers to end the ULPs or prosecute the employers and go to trial. If upheld, USC football and basketball players’ employee status under joint employers (college,conference, and NCAA) will ultimately apply to all FBS football players and Division I basketball players at private schools. If the Pac-12 and NCAA are found to be employers, it could open the doors for athletes at other Football Bowl Subdivision schools to argue that they are employees, even if they attend public schools such as UCLA. The NCPA's case with the NLRB is the latest in a string of unionization efforts among college athletes and their advocates. Another recent effort came in 2014 and 2015, when Northwestern football players attempted to unionize. The NLRB declined to accept jurisdiction in the case, however, saying at the time that it did not have jurisdiction over public schools ...
/ 2022 News, Daily News
Private equity firms pool money from investors, ranging from wealthy people to college endowments and pension funds. They use that money to buy into businesses they hope to flip at a sizable profit, usually within three to seven years, by making them more efficient and lucrative. Private equity is rapidly moving to reshape health care in America, coming off a banner year in 2021, when the deep-pocketed firms plowed $206 billion into more than 1,400 health care acquisitions, according to industry tracker PitchBook, and has poured nearly $1 trillion into nearly 8,000 health care transactions during the past decade. And this might become a cost and quality control problem for workers' compensation claim administrators. And according to an analysis of this data and report by Kaiser Health News. these investors are buying into eye care clinics, dental management chains, physician practices, hospices, pet care providers, and thousands of other companies that render medical care nearly from cradle to grave. Private equity-backed groups have even set up special "obstetric emergency departments" at some hospitals, which can charge expectant mothers hundreds of dollars extra for routine perinatal care. As private equity extends its reach into health care, evidence is mounting that the penetration has led to higher prices and diminished quality of care, a KHN investigation has found. KHN found that companies owned or managed by private equity firms have agreed to pay fines of more than $500 million since 2014 to settle at least 34 lawsuits filed under the False Claims Act, a federal law that punishes false billing submissions to the federal government with fines. Most of the time, the private equity owners have avoided liability. Private equity has flocked to companies that treat autism, drug addiction, and other behavioral health conditions. The firms have made inroads into ancillary services such as diagnostic and urine-testing and software for managing billing and other aspects of medical practice. Private equity has done so much buying that it now dominates several specialized medical services, such as anesthesiology and gastroenterology, in a few metropolitan areas, according to new research made available to KHN by the Nicholas C. Petris Center at UC-Berkeley. New research by the University of California-Berkeley has identified "hot spots" where private equity firms have quietly moved from having a small foothold to controlling more than two-thirds of the market for physician services such as anesthesiology and gastroenterology in 2021. And KHN found that in San Antonio, more than two dozen gastroenterology offices are controlled by a private equity-backed group. Whistleblowers and injured patients are turning to the courts to press allegations of misconduct or other improper business dealings. The lawsuits allege that some private equity firms, or companies they invested in, have boosted the bottom line by violating federal false claims and anti-kickback laws or through other profit-boosting strategies that could harm patients. "Their model is to deliver short-term financial goals and in order to do that you have to cut corners," said Mary Inman, an attorney who represents whistleblowers. Federal regulators, meanwhile, are almost blind to the incursion, since private equity typically acquires practices and hospitals below the regulatory radar. KHN found that more than 90% of private equity takeovers or investments fall below the $101 million threshold that triggers an antitrust review by the Federal Trade Commission and the U.S. Justice Department. Fund managers who back the deals often say they have the expertise to reduce waste and turn around inefficient, or moribund, businesses, and they tout their role in helping to finance new drugs and technologies expected to benefit patients in years to come. Critics see a far less rosy picture. They argue that private equity’s playbook, while it may work in some industries, is ill suited for health care, when people’s lives are on the line. These expansions can lead to higher prices for patients, said Yashaswini Singh, a researcher at the Bloomberg School of Public Health at Johns Hopkins University. In a study of 578 physician practices in dermatology, ophthalmology, and gastroenterology published in JAMA Health Forum in September, Singh and her team tied private equity takeovers to an average increase of $71 per medical claim filed and a 9% increase in lengthy, more costly, patient visits. Singh said in an interview that private equity may develop protocols that bring patients back to see physicians more often than in the past, which can drive up costs, or order more lucrative medical services, whether needed or not, that boost profits. "There are more questions than answers," Singh said. "It really is a black hole." ...
/ 2022 News, Daily News
The Workers’ Compensation Insurance Rating Bureau of California (WCIRB) has released its Quarterly Experience Report - As of September 30, 2022. This report is an update on California statewide insurer experience valued as of September 30, 2022. Highlights of the report include: - - Despite continued declines in insurer rates, written premium for the first three quarters of 2022 is 15% above that for the same period of 2021. Much of the increase is being driven by higher employee wage levels and the continued economic recovery. - - Premium on policies incepting in the first nine months of 2022 is 7 percent higher than premium on policies incepting in the first nine months of 2021. - - The average charged rate for the first three quarters of 2022 is 7 percent below that for 2021 and the lowest in decades. - - The projected loss ratio for 2021, including the cost of COVID-19 claims, is 6 points above that for 2020 and 13 points above that for 2019. - - Projected loss ratios have been growing steadily since 2016, mostly due to declining insurer rate levels and modest increases in average claim severity. - - The projected combined ratio for 2021, including COVID-19 claims, is 8 points higher than 2020 and 35 points higher than the low point in 2016. - - Excluding COVID-19 claims, the projected combined ratio for 2021 is 111% and the projected ratio for 2020 is 101%, which are still higher than those of recent prior years. - - Indemnity claims had been settling quicker through the first quarter of 2020, primarily driven by the reforms of SB 863 and SB 1160. - - A significant surge in the share of COVID-19 claims occurred in December 2021 and January 2022, driven by the Omicron variant. - - COVID-19 indemnity claim frequency dropped significantly following the January 2022 surge but modestly increased through July during the recent surge of infections in California. - - Projected total indemnity claim severity for 2021, excluding COVID-19 claims, is 1% below 2020 but 13% above 2017. - - Following several years of flat indemnity severities, the projected indemnity severity for 2021 is 1% higher than 2020 and 19% higher than 2017. - - The projected medical severity for 2021 is 2% lower than 2020 but 12% higher than 2017. - - Pharmaceutical costs per claim decreased by 84% from 2012 through 2021. The information presented reflects a compilation of individual insurer submissions of information to the WCIRB. While the individual insurer data submissions are regularly checked for consistency and comparability with other data submitted by the insurer as well as with data submitted by other insurers, the WCIRB can make no warranty with respect to the information provided by third parties ...
/ 2022 News, Daily News
Reserving is one of the most important aspects of claim handling. Whether it is a normal run of the mill lost time claim, or a claim with benefits payable over the remaining life of the insured worker, the goal is always the same: To accurately place the proper amount of money or reserves in the claim for the duration of the claim. The claims examiner will typically take the periodic rate of benefits and the estimate of ongoing medical expense, and then compute the yearly estimated cost, and then multiply that by the number of years of anticipated remaining lifespan this worker is expected to have. Life expectancy has increased in the U.S. for many decades, resulting in a lifetime reserve estimate increasing over time. A few years ago, this trend reversed, with data showing life expectancy in the U.S. was declining. And now two annual reports released Thursday by the Center for Disease Control shows U.S. life expectancy is at a two-decade low and drug overdoses have risen five times in the last 20 years. The drop was primarily due to increases in COVID-19 and drug overdose deaths. The data are featured in two new reports from CDC’s National Center for Health Statistics (NCHS). The first report is "Mortality in the United States: 2021" which features the public release of final mortality data for 2021, and the report documents that there were 3,464,231 total deaths in the United States during 2021 - 80,502 more than the total reported in 2020. The death rate for the entire U.S. population increased by 5.3% from 835.4 deaths per 100,000 population in 2020 to 879.7 in 2021. As a result, life expectancy at birth for the U.S. population decreased from 77 years in 2020 to 76.4 years in 2021. The 10 leading causes of death in 2021 were largely unchanged from 2020, except chronic liver disease and cirrhosis became the 9th leading cause of death in 2021 while influenza and pneumonia dropped from the list of 10 leading causes. Heart disease remained the leading cause of death in the United States, followed by cancer and COVID-19. Males’ life expectancy decreased slightly more than females by a difference of 5.8 years. Non-Hispanic American Indian or Alaska Native (AIAN) females had the highest death rate increase at 7.3%, with non-Hispanic white males coming in second at 7.2%, with AIAN males and black men still ranking at the top for overall deaths in 2021. A second report, "Drug Overdose Deaths in the United States, 2001-2021," showed that overdose deaths, which account for more than a third of all accidental deaths in the United States, have risen five-fold over the past two decades. The official number of drug overdose deaths among residents in the United States for 2021 was 106,699, nearly 16% higher than the 91,799 deaths in 2020. The CDC’s second report showed an increase in drug overdoses in all age categories of adults 25 and over between 2020 and 2021. Adults aged 34-44 had the highest rates at 53.9 per 100,000 but the 65 and over category saw the largest overall increase from 2020 to 2021 by 28%. The rate of drug overdose deaths involving synthetic opioids other than methadone (drugs such as fentanyl, fentanyl analogs, and tramadol) increased 22% from 17.8 in 2020 to 21.8 in 2021. From 2020 to 2021, the rate of drug overdose deaths involving cocaine increased 22% (from 6.0 to 7.3) and the rate for deaths involving psychostimulants with abuse potential (drugs such as methamphetamine) increased 33% (from 7.5 to 10.0). The rate of drug overdose deaths involving heroin decreased 32% from 4.1 in 2020 to 2.8 in 2021 ...
/ 2022 News, Daily News
In end-stage ankle arthritis, joint cartilage has worn away and pain occurs as bone rubs against bone. Although less common than arthritis of the hip or knee, the pain and disability of end-stage ankle arthritis affect patients as much as severely disabling physical conditions such as end-stage hip arthritis, end-stage kidney disease, and congestive heart failure. End-stage arthritis of the ankle joint affects more than 50,000 people in the US. In up to 80% of cases, the condition is posttraumatic,with the 3 most common traumatic causes being rotational ankle fractures (37%), recurrent ankle instability (15%), and single sprain with continued pain (14%). When conservative treatments do not provide enough relief, surgical options should be considered. Ankle replacement, or ankle arthroplasty, is a surgical procedure to replace the damaged articular surfaces of the human ankle joint with prosthetic components. This procedure is becoming the treatment of choice for patients requiring arthroplasty, replacing the conventional use of arthrodesis, i.e. fusion of the bones. The restoration of range of motion is the key feature in favor of ankle replacement compared to arthrodesis. The popularity and utilization of total ankle arthroplasty (TAA) as treatment for ankle arthritis has increased exponentially from 1998 to 2012. Overall the outcomes have improved for TAA with the introduction of new-generation implants and this has increased the focus on optimizing other variables affecting outcomes for TAA. However, there is little data regarding other variables which affect TAA procedure outcomes A new study was conducted in order to improve this current limited information, “The Impact of Hospital Size and Teaching Status on Outcomes Following Total Ankle Arthroplasty,” was published online in The Journal of Foot & Ankle Surgery last month. The purpose of this study was to examine the effects of hospital characteristics and teaching status on outcomes for total ankle arthroplasty (TAA). The Nationwide Inpatient Sample (NIS) database was queried from 2002-2012 using the ICD-9 procedure code for TAA. A total weighted national estimate of 16,621 discharges for patients undergoing TAA was reported over the 10-year period. The primary outcomes evaluated included: in-hospital mortality, length of stay, total hospital charges, discharge disposition, perioperative complications, and patient demographics. Analyses were carried out based on hospital size: small, medium, and large; and teaching status: rural non-teaching, urban non-teaching, and urban teaching. The analysis showed that the size of a hospital and teaching status produced better overall ankle arthroplasty patient outcomes. Rural, non-teaching hospitals had higher odds of perioperative complications. There were also significant differences in length of stay and total charges when comparing hospital sizes. Overall, there is no increased risk of mortality after TAA regardless of hospital size or setting. Vani J. Sabesan, M.D., FAAOS, FAOA, a shoulder and elbow/sports medicine specialist in Florida and his colleagues wrote in their study, “Our analyses demonstrated important factors affecting cost and resource utilization for total ankle arthroplasty, clearly additional work is needed to optimize this relationship, especially in the upcoming bundled payment.” ...
/ 2022 News, Daily News
A Saratoga, California man has been charged with posing as a doctor to perform an unlicensed Botox injection on a woman, which comes on the heels of him avoiding a jail sentence after he was prosecuted for similar acts in Miami, according to authorities and court records. The Mercury News reports that 37 year old Brody Amir Moazzeni faces one felony count of practicing medicine without certification. The case was filed in Santa Clara County, and he was arraigned December 14, and faces a maximum sentence of a year in county jail if convicted on the charge. Deputy District Attorney Ann Huntley said the charge is based on an allegation by a 26-year-old Stockton woman who met Moazzeni - who in the South Bay criminal complaint has listed aliases of Amir Moazzeni and Gianni Muzzati - through the Bumble dating app. According to the investigation, the woman said she knew the defendant as Gianni Muzzati, and that he told her he was a doctor opening his own cosmetic clinic. The two began a romantic relationship, and on Sept. 25, 2021, they met at a Sunnyvale hotel where Moazzeni allegedly offered to give her free Botox injections in her face and other injections in her torso. Huntley said that a few weeks later, the woman noticed her right eyelid was drooping and saw an ophthalmologist who told her her procedure was not done properly. After she got her eyelid treated, Moazzeni continued to pressure her into letting him do more cosmetic work, leading her to question his qualifications. He was implicated in a similar case in March 2021 when he was charged with practicing unlicensed medicine and sexual battery involving a woman in Miami Beach, Florida, according to court records there. Court records show that Miami-Dade prosecutors initially filed at least seven felony and misdemeanor charges against Moazzeni, but ultimately pursued two felony counts and one misdemeanor count, all involving the unlicensed medicine accusations. Those same records show that Moazzeni was allowed to participate in a pretrial diversion program to avoid a potential conviction and jail time, and that his charges were dropped Sept. 23 after he completed the program. That was two days before the reported Botox encounter in Sunnyvale that led to his criminal charge in Santa Clara County. The new alleged offense has no consequence for his case in Florida since it was dismissed, according to the Miami-Dade State Attorney’s Office. Still, that overlap has Huntley and investigators concerned there could be other women who received unlicensed cosmetic work from Moazenni and suffered health problems as a result. “Given the sensitive nature of how he manipulates women,” Huntley said, “these women might feel used and bamboozled because of the way they were taken advantage of.” To this point, Huntley said, there is no evidence that the defendant ever asked for payment for the procedures. Moazzeni is currently out of jail custody and is scheduled to return to court Feb. 28. Anyone with information about the case, or other people who might have received unlicensed medial procedures from the defendant, can contact Santa Clara County DA Investigator Krissi Durant at 408-792-2567 ...
/ 2022 News, Daily News
Thomas David Williams suffered an industrial injury while employed by Mac Kenzie Electric Inc., who was insured by the State Compensation Insurance Fund. In addition to insured benefits paid by SCIF, Williams pursued a Serious and Willful Misconduct claim against the employer. On August 2, 2021, the WCJ found in relevant part that defendant “MACKENZIE ELECTRICAL INC.” is guilty of Serious and willful Misconduct thereby entitling Williams to an increase in compensation and attorneys’ fees of 15% thereon.. On reconsideration, Williams contends that the award should have specified the dollar amount of $537,449.36 pursuant to the parties’ previous stipulations. Subsequently, Williams filed an amended Petition, requesting that the award be issued against “Mac Kenzie Electric Inc.” rather than “MacKenzie Electric Inc.” The employer contends that the WCJ failed to apply the appropriate legal standard for serious and willful misconduct; that applicant did not meet his burden to prove serious and willful misconduct by defendant; that the WCJ did not address all of the evidence in her decision. The employer's Petition for Reconsideration was denied, but the applicant's was granted in the panel decision of Williams v Mac Kenzie Electric Inc - ADJ2167155 (December 2022). This case involved the often overlooked requirement that litigants must set forth "the party’s full legal name" on the pleadings they file in cases before the WCAB. In deciding this case, the panel pointed out that WCAB Rule 10390(a) (Cal. Code Regs., tit. 8, §10390(a)) requires that any party that appears or files a pleading before the WCAB shall set forth “the party’s full legal name on the record of proceedings, pleading, [or] document.” Pursuant to AD Rule 10205.5 (Cal. Code Regs., tit. 8, § 10205.5), the Division of Workers’ Compensation (DWC) maintains the “official participant record” or official address record (OAR) for all cases, and all parties must ensure at all times that they are correctly identified on the OAR. Here, based on the panel;s review of the record, it was not clear from the record whether defendant is “MacKenzie Electric, Inc.” or “Mac Kenzie Electric, Inc.” The panel further stated that "This conflict is particularly underscored by the circumstances here where the individuals appear to use both last names interchangeably, and there is no doubt that this information is within defendant’s knowledge. Instead, as noted previously, defendant failed to respond to the WCJ’s recommendation to change its name, thereby causing further delays. Moreover, as explained above, it is defendant’s responsibility to communicate with DWC as required by AD Rule 10205.5 to correct any discrepancies in its name." The employer's Petition for Reconsideration is by “MacKenzie Electric, Inc.,” “insured by State Compensation Insurance Fund” and is filed by an attorney for defendant State Compensation Fund, Marjorie A. Marenus. Throughout the Petition, defendant consistently refers to itself as “MacKenzie Electric,” and attached to the Petition is a declaration signed under penalty of perjury by “Patrick MacKenzie” and a declaration signed under penalty of perjury by “Denis MacKenzie.”3 In Exhibit R, titled as “Bill of Sale of John Deere 310D Backhoe Loader to Ed Ernst,” the bill of sale is on letterhead titled “MacKenzie Electric, Inc.” with license # 664395, the seller is listed as “Patrick MacKenzie, President” and the transferor is listed as “Patrick MacKenzie.” Yet, the California State License Board lists “Mac Kenzie Electric Inc” for license # 664395 and “Denis Anthony Mac Kenzie” and “Patrick Christopher Mac Kenzie” as personnel associated with the license. (See Evid. Code, § 452(c) [allowing judicial notice of official acts by an executive department].) "We strongly emphasize that defendant must comply with its obligations under WCAB Rule 10390(a) and AD Rule 10205.5. More significantly, failure to provide the correct information may impede applicant’s ability to proceed against defendant under section 5806. Again, if defendant is uncooperative, the WCJ should consider whether sanctions are appropriate." We direct defendant’s attorney Marjorie A. Marenus and State Compensation Insurance Fund to immediately review the OAR and make any necessary changes, and to promptly notify the WCJ thereafter. In the meantime, we will leave the award intact, but we will also defer the issue to the WCJ to determine whether the name of the defendant should be changed, and upon return, the WCJ can consider whether to hold an evidentiary hearing ...
/ 2022 News, Daily News
The Labor Commissioner’s Office collected $1,331,682 in wages and penalties, resulting from a prevailing wage assessment against Bakersfield-based subcontractor Grant Construction, Inc. The wages collected will compensate 27 workers for unpaid prevailing wages while working on a farmworker housing construction project in the City of Wasco in Kern County. The public works investigation determined that wage theft had occurred in the form of kickbacks and non-reporting of all hours worked. It found that a Grant Construction crew leader would collect the paychecks of the 27 workers, sign and cash them, and then pay the workers significantly less than the amount listed on their checks. “The law requires that workers on construction projects with $1,000 or more public funds must be paid no less than the prevailing wage,” said Labor Commissioner Lilia García-Brower. “These workers held Grant Construction accountable for cheating them out of their legal wages.” The City of Wasco hired Wallace & Smith Contractors as the prime contractor to build a $42 million farmworker housing complex with 66 apartments. Wallace & Smith Contractors hired subcontractor Grant Construction, Inc., to bring in carpenters and siding workers for the job. The Labor Commissioner’s Office opened its investigation in February 2019 after a complaint of public works violation was filed by a worker claiming underpayment of wages and non-payment of travel and subsistence. The worker stated he was paid in cash for work performed on the project. The investigation also confirmed that Grant Construction, Inc. failed to report all the workers and hours worked on the Certified Payroll Reports (CPR) and falsified the CPRs, paychecks, and paystubs. The Labor Commissioner’s Office cited Grant Construction, Inc., in June 2020, for underpayment of prevailing wages to 27 workers, civil penalties, and training funds. The company was not required to pay liquidated damages because it timely deposited the full assessment amount in August 2020. However, the company requested a review of the assessment, and the hearing was held in May 2021. The Department of Industrial Relations Director issued a decision upholding the assessment in May 2022. A judgment was entered on the decision of the Director in August of 2022 for a total of $1,389,395, including interest. The Department of Industrial Relations’ Division of Labor Standards Enforcement, also known as the California Labor Commissioner’s Office, combats wage theft and unfair competition by investigating allegations of illegal and unfair business practices. All workers employed on public works projects must be paid the prevailing wage determined by the Director of the Department of Industrial Relations (DIR), according to the project’s type of work and location. Failure to comply with public works requirements can result in civil penalties, criminal prosecution, or both. Employees with questions about their rights may call the Labor Commissioner’s Office at 833-LCO-INFO (833-526-4636). The Labor Commissioner’s Office launched the Reaching Every Californian interdisciplinary outreach campaign in 2020. The campaign amplifies basic protections and builds pathways to affected populations, so workers and employers understand legal protections, obligations, and the Labor Commissioner’s enforcement procedures. Californians can follow the Labor Commissioner on Facebook and Twitter ...
/ 2022 News, Daily News
Dr. David J. Smith, a pain management physician, and his office manager, Julia Ann Oertle, are charged in a federal grand-jury indictment with perpetuating a long-running scheme to commit healthcare fraud and to manufacture and distribute adulterated fentanyl. After his initial appearance in federal court, Smith’s bond was set at $1 million, secured by real property, with a limitation on his ability to practice medicine. Oertle was still at large. According to allegations in the indictment, Smith purports to specialize in the installation and maintenance of intrathecal pain pumps which are surgically placed in a patient’s stomach with two catheters implanted on the spine; pain medicine is then infused into a reservoir in the pump periodically, and meted out directly into the spine. Beginning in December 2017, Smith and Oertle began compounding fentanyl citrate into vials, in a room at Smith’s principal medical practice, San Diego Comprehensive Pain Management Center. According to the indictment, this compounding practice was grossly improper and resulted in the production of adulterated fentanyl. Smith nevertheless directed administration of this fentanyl to patients repeatedly. The indictment alleges that beyond providing patients with adulterated fentanyl, Smith violated the applicable standards of care by, among other things, prescribing materially excessive quantities of fentanyl, prescribing unnecessary oral opioid medications in conjunction with pain-pump medication, and installing pain pumps in patients without proper assessments for patient need. Smith then had false and fraudulent reimbursement claims submitted to Medicare for these administrations. Among other things, the claims were inflated by nearly 60 percent; they sought reimbursement for large volumes of unnecessarily manufactured fentanyl; they falsely represented that excess fentanyl had been discarded, when in fact it was used; and they did not disclose that the fentanyl was adulterated. According to the indictment, Oertle illegally ordered fentanyl citrate for compounding; compounded fentanyl with Smith; and helped direct the illegal billing practices. Smith has bad disciplinary charges brought against him by licensing authorities in both California and Nevada. In June 2022 the Board of Medical Examiners of the state of Nevada, in disciplinary case 22-47823-1, alleged that Smith filed an application to practice medicine with them in September 2017. He was asked if he had ever been investigated by any other medical licensing board, and he answered "no" to that question. However, they claim he was "repeatedly" investigated by the California Medical Board prior to his application with them. Additionally he allegedly had malpractice cases pending against him that he did not disclose. In proceedings before the California board, a final order and Decision dated August 25, 2020, in Case No. 800- 2015-013651, the California Board found that Smith committed acts of gross negligence, repeated negligent acts, failed to maintain adequate and accurate medical records, and unprofessional conduct in the care and treatment of multiple patients. The California Board found Smith incompetent in the care and treatment of a patient, and that he excessively prescribed controlled substances to three (3) patients. Effective October 15, 2020, the California Board revoked Smith's license to practice medicine in the State of California, with the order stayed, and he was placed on probation for seven (7) years subject to numerous terms and conditions. In a subsequent California matter, a final order and Decision dated December 22, 2021, in Case No. 800-2018-042234, the California Board found that Smith committed acts of gross negligence in the care and treatment of three (3) patients, repeated negligent acts, excessively prescribed controlled substances, and failed to maintain adequate and accurate medical records in the care and treatment of two (2) patients, and unprofessional conduct. Effective January 21, 2022, the California Board again revoked Respondent's license to practice medicine in the State of California, with that order stayed, and was placed on probation for the duration of Respondent's probation in the prior matter, Case No. 800-2015-013651, until the anticipated end date of October 14, 2027, subject to additional terms ...
/ 2022 News, Daily News
3-2 decision, in a closely followed employment law case, the National Labor Relations Board reinstated its prior 2011 standard, which applied a more expansive right of off-duty contractor employees to access publicly accessible areas of the primary employer’s workplace, for the purpose of engaging in organizing activity. The new decision overturns Bexar County I, 368 NLRB No. 46 (2019) In this newest case, (Bexar County II) the San Antonio Symphony leases performance space from the Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts. On the evening of February 17, 2017, about a dozen Symphony employees sought to peacefully leaflet on the sidewalk in front of the main entrance to the Tobin Center. The Symphony employees had been distressed to learn that Ballet San Antonio had opted to use recorded music, rather than live music, for its production of Tchaikovsky’s Sleeping Beauty. The use of recorded music denies the Symphony employees the opportunity to work at the performance by playing the score. Because of financial difficulties, the Symphony had already had to furlough the Symphony employees for 3 weeks during the 2016–2017 season. To raise awareness among Ballet San Antonio’s patrons about the use of recorded instead of live music, the Union decided to leaflet before the performances. Event staff and San Antonio police officers at the Respondent’s direction immediately informed the Symphony employees that they could not distribute the leaflets anywhere on the Respondent’s property, including the sidewalks. The Symphony employees were forced to relocate across the street off the Tobin Center grounds onto a public sidewalk where there were fewer patrons. This reaction lead to litigation before the NLRB, and two decisions, Bexar I - and after remand from an appellate court - Bexar II. Congress passed the National Labor Relations Act in 1935, during the New Deal era. Under section 7 of the NLRA employees' rights include more than just the right to form a union. The NLRA protects any concerted employee activity undertaken for mutual aid. Employee actions have to meet several standards to deserve protection. At issue in both Bexar I and II is the application of section 7. An underlying problem central to these two cases is that Section 7 only confers rights directly to employees, not to unions or their nonemployee organizers. The off-duty employees who work for a contractor of a property owner do not fit neatly into these categories.They are neither employees of the property owner nor are they nonemployees with no relationship to the property owner’s property where they work. Precedent for the problem in the Bexar cases dates back to 2011, when the Board in New York New York considered whether off-duty food service employees had the right to engage in organizational leafleting of customers outside their employer’s place of business - not on their employer’s property, but in the public areas of a hotel-casino for which they and their employer provided services integral to the property owner’s business. (New York New York Hotel & Casino, 356 NLRB 907 (2011)). In Bexar County I, the Board acknowledged that the New York New York test - which had been approved by the D.C. Circuit - controlled this case. Nonetheless, the Board overruled New York New York and announced a new standard to govern off-duty contractor employees’ access to the property where they regularly work (but that is not owned by their employer) to engage in Section 7 activity. On appeal of Bexar I, the D.C. Circuit held that the Board’s new access standard was arbitrary. The court permitted the Board on remand to “decide whether to proceed with a version of the test it announced and sought to apply in this case or to develop a new test altogether. On remand the NLRB noted its "agreement with the D.C. Circuit’s conclusion that the Bexar County I standard it established “is arbitrary in the way that it implements its new standard." Part of the Board’s task in devising an access standard for off-duty contractor employees is to ensure that it only reaches those contractor employees with a sufficient connection to the property to merit Section 7 access rights. The NLRB concluded in Bexar County II, that it would return to the New York New York Hotel & Casino, 356 NLRB 907 standard, which held that a “property owner may lawfully exclude [off duty contractor] employees only where the owner is able to demonstrate that their activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline (as those terms have come to be defined in the Board’s case law).” Applying the New York New York test here, the NRLB affirmed the judge’s finding that Bexar County violated Section 8(a)(1) by excluding the Symphony employees from the Respondent’s property to distribute union leaflets to the Respondent’s patrons about an issue affecting the Symphony employees’ terms and conditions of employment, specifically their number of hours of work. "They had a Section 7 right to inform the public about Ballet San Antonio’s use of recorded instead of live music, which directly affected the Symphony employees’ working conditions." "In order to protect contractor employees’ Section 7 rights, we believe that it is appropriate for us to apply the New York New York test to this case and to all pending cases." ...
/ 2022 News, Daily News
The National Academy of Medicine (NAM) has called diagnostic error a "blind spot" for modern medicine and improving diagnosis a "moral, professional, and public health imperative." Diagnostic errors - inaccurate or delayed diagnoses - "persist throughout all settings of care and continue to harm an unacceptable number of patients. It is likely that most people will experience at least one diagnostic error in their lifetime, sometimes with devastating consequences." And a new study released Thursday by the Agency for Healthcare Research and Quality, U.S. Department of Health and Human Services, with the assistance of Johns Hopkins University Evidence-based Practice Center in Baltimore, estimates that roughly 7.4 million people are inaccurately diagnosed of the 130 million annual visits to hospital emergency departments in the United States. Some 370,000 patients may suffer serious harm as a result. The Agency for Healthcare Research and Quality (AHRQ), through its Evidence-based Practice Centers (EPCs), sponsors the development of systematic reviews to assist public- and private-sector organizations in their efforts to improve the quality of healthcare in the United States. The literature review used for this study covered publication dates from January 2000 to September 2021, and identified 19,127 abstracts, screened 1,455 full text studies, and included 279 studies that addressed the key issues of the study. The top 15 clinical conditions associated with serious misdiagnosis-related harms were (1) stroke, (2) myocardial infarction, (3) aortic aneurysm and dissection, (4) spinal cord compression and injury, (5) venous thromboembolism, (6) meningitis and encephalitis, (7) sepsis, (8) lung cancer, (9) traumatic brain injury and traumatic intracranial hemorrhage, (10) arterial thromboembolism, (11) spinal and intracranial abscess, (12) cardiac arrhythmia, (13) pneumonia, (14) gastrointestinal perforation and rupture, and (15) intestinal obstruction. Average disease-specific error rates ranged from 1.5 percent (myocardial infarction) to 56 percent (spinal abscess), An estimated 5.7 percent of all ED visits had at least one diagnostic error. If overall rates are generalizable to all U.S. ED visits, this would translate to 7.4 million ED diagnostic errors annually; 2.6 million diagnostic adverse events with preventable harms; and 371,000 serious misdiagnosis-related harms, including more than 100,000 permanent, high-severity disabilities and 250,000 deaths. Key process failures were errors in diagnostic assessment, test ordering, and test interpretation. Most often these were attributed to inadequate knowledge, skills, or reasoning, particularly in "atypical" or otherwise subtle case presentations. Although estimated ED error rates are low (and comparable to those found in other clinical settings), the number of patients potentially impacted is large. Not all diagnostic errors or harms are preventable, but wide variability in diagnostic error rates across diseases, symptoms, and hospitals suggests improvement is possible. However, the New York Times reports that the study was met with criticism from the American College of Emergency Physicians, whose president called the conclusions "misleading, incomplete and erroneous," and said the reliance on studies conducted outside of the U.S. may have led to overestimates of mistakes. In a statement to the Times, the group's president, Christopher Kang, MD, said, "The report conveys a tone that inaccurately characterizes and unnecessarily disparages the practice of emergency medicine in the United States," and, "While most medical specialties have similar training in Western nations, emergency medicine does not." ...
/ 2022 News, Daily News
A Los Angeles Superior Court Jury ordered Health Net to pay $14.42 million, including $6.92 million in compensatory damages and $7.5 million in punitive damages, to a woman who alleged the health care giant caused her to become addicted to opiate pain medication, which she was prescribed only after she had already unnecessarily waited months for Health Net to provide timely referrals to specialists. The Los Angeles Superior Court jury reached its verdict on Monday, after only a few hours of deliberations.The case is Elaine Courtney v. Health Net, Los Angeles Superior Court, Case No. 18STCV05327. "The fundamental defect in plaintiff’s claims is that Health Net Inc. was not responsible for providing or authorizing plaintiff’s care and, when plaintiff raised issues about her treatment through the grievance process of her health plan, Health Net ... responded promptly and authorized the requested treatment," the Health Net attorneys maintained. But plaintiff’s attorney Travis Corby called the case an important one for the health insurance industry and for Medi-Cal recipients. According to a press release by her attorneys, Ms. Courtney needed urgent medical care for a pelvic prolapse issue that was causing her extreme pain. In February 2017, Ms. Courtney received an urgent referral to a colorectal specialist for a surgical consult. According to the health plan, an appointment should have been made available within 96 hours. But she was told that the correct specialist was not available to her under her Health Net Medi-Cal plan and she was instead sent back to a general surgeon that she had already seen that was admittedly not specialized to fix her problem. Meanwhile, Health Net had 25 colorectal surgeons available in its Southern California network but refused to allow access to any of them. As a result, Ms. Courtney was made to wait until August 22, 2017 to see a qualified specialist. Even then, she experienced additional delays from the health plan. The specialist doctor's surgical request were then denied on five separate occasions over four months, because of issues with the network. Again, Ms. Courtney repeatedly reached out to Health Net, pleading for help, but it did nothing to overturn the denials. Ms. Courtney was not able to get in for surgery until December 13, 2017 - a ten-month delay. As a result, Ms. Courtney became dependent on opioid pain medication that was only first prescribed to her months into the delay while she waited to Health Net to arrange and provide access to specialists. During that year, Ms. Courtney suffered immense pain and was given the runaround by Health Net's bureaucracy. All the while, Health Net was on notice that she was unable to care for her four children, that her condition prevented her from using the bathroom without intervention, that she was in extreme pain, and that she had been prescribed the opioid pain medication to manage the pain while waiting for surgery. "Hopefully this verdict sends a message to Health Net and other health plans," Corby said ...
/ 2022 News, Daily News
The Occupational Safety and Health Standards Board today adopted the COVID-19 Prevention Non-Emergency Regulations. The COVID-19 Prevention Emergency Temporary Standards will continue to remain in effect while the Office of Administrative Law (OAL) reviews the proposed Non-Emergency COVID-19 Prevention Regulations. OAL has 30 working days to complete its review. If approved by OAL, the new regulations will remain in effect for two years. Notable provisions include: - - COVID workplace measures: Employers are legally obligated to provide and maintain a safe and healthy workplace for employees, including by taking measures to prevent COVID-19 exposure. Employers must maintain an effective written Injury and Illness Prevention Program (IIPP) that addresses COVID-19 as a workplace hazard and includes measures to prevent workplace transmission, employee training, and methods for responding to COVID-19 cases at the workplace. Employers may address COVID-19 workplace measures within their written IIPP or in a separate document. - - COVID Testing: Employers must make COVID-19 testing available at no cost and during paid time to employees following a close contact, except for returned cases. - - Ventilation: For all indoor locations regardless of size, employers must review applicable CDPH guidance and implement effective measures to prevent transmission through improved filtration and/or ventilation. - - Close Contact Definition: Close contact is defined by the size of the workplace: - - For indoor spaces of 400,000 or fewer cubic feet per floor, a close contact is defined as sharing the same indoor airspace as a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period, as defined in the regulations, regardless of the use of face coverings. - - For indoor spaces of greater than 400,000 cubic feet per floor, a close contact is defined as being within six feet of the COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period, as defined in the regulations, regardless of the use of face coverings. - - Offices, suites, rooms, waiting areas, break or eating areas, bathrooms, or other spaces that are separated by floor-to-ceiling walls shall be considered distinct indoor spaces. - - Infectious Period Definition: The regulations use the definition of "infectious period" found in the most recent California Department of Public Health (CDPH) State Public Health Officer Order. Cal/OSHA is updating its resources to assist employers with understanding their obligations required by the COVID-19 Prevention Regulations. The COVID-19 Prevention Resources webpage contains an executive summary that describes the regulations. When the new regulation becomes effective, Cal/OSHA will publish an updated set of FAQs and model program. The Occupational Safety and Health Standards Board (OSHSB), a seven-member body appointed by the Governor, is the standards-setting agency within the Cal/OSHA program. The Standards Board’s objective is to adopt reasonable and enforceable standards that are at least as effective as federal standards. The Standards Board also has the responsibility to grant or deny applications for permanent variances from adopted standards, and respond to petitions for new or revised standards. The California Division of Occupational Safety and Health, or Cal/OSHA, is the division within the Department of Industrial Relations that helps protect California’s workers from health and safety hazards on the job in almost every workplace. Cal/OSHA’s Consultation Services Branch provides free and voluntary assistance to employers to improve their worker health and safety programs. Employers should call (800) 963-9424 for assistance from Cal/OSHA Consultation Services ...
/ 2022 News, Daily News
Under the Medicare Secondary Payer (MSP) law, first enacted in 1980 and updated many times since then, Medicare may not pay claims when another payment is available or reasonably expected to be available, such as workers' compensation paid medical care for an industrial injury. When a primary-payer plan doesn’t or can’t pay "promptly" - say, for instance, when it is contesting liability - Medicare can make a conditional payment on behalf of a beneficiary, for which it can later seek reimbursement from the primary plan. If revise 42 CFR section 405.980 and corresponding manual instructions Medicare pays and then seeks reimbursement, only to be refused, the United States can sue the primary plan (or a medical provider) to recover its payment. The Centers for Medicare & Medicaid Services (CMS) must protect the fiscal integrity of Medicare trust funds. And the Office of the Inspector General (OIG) is responsible for the oversight of that process. An OIG audit which took place more than a decade ago determined that CMS had not recovered $332 million of the $416 million of Medicare overpayments that it had identified in audit reports issued during the 30-month period ended March 31, 2009. And now, a new OIG audit published this summer, reflects that CMS conditional payment collection results remain inadequate, even after a decade of efforts to improve its track record. OIG verified that CMS collected $120 million of the $498 million in sustained Medicare overpayments identified in HHS-OIG audit reports issued during its audit period. Of this sustained amount, CMS reported that it had collected $272 million (55 percent) and that it had not collected $226 million (45 percent). In addition, CMS did not take corrective action in response to all of the recommendations made in prior audit report published a decade ago. The Report concluded that the "combination of a substantial balance of uncollected overpayments, inadequate policies and procedures, and unimplemented recommendations increases the risk that CMS will not collect millions of dollars owed to the Medicare Trust funds." Thus, in this 2022 report, a number of recommendations were again made. CMS officials gave various reasons for not collecting sustained overpayments, such as provider appeals and CMS/MAC redeterminations of overpayment amounts. One of the recommendations this year by OIG is for CMS to "revise 42 CFR section 405.980 and corresponding manual instructions" which is an invitation for a rulemaking process that will likely make changes to payer appeals of WCMSA settlement set-aside proposals. Under this regulation as it is currently written, party may request that a CMS contractor reopen its initial determination or redetermination within 1 year from the date of the initial determination or redetermination for any reason, or within 4 years from the date of the initial determination or redetermination for good cause in accordance with § 405.986. Some industry experts expect that the time frame for appeals is likely to be shortened. Additionally, CMC announced its intent to solicit applicants for a new Workers' Compensation Review Contractor (WCRC) that will evaluate workers' compensation Medicare set-aside arrangement (WCMSA) proposals and project the future medical costs, including prescription drugs, related to the workers' compensation (WC) injury, illness, or disease that would be otherwise reimbursable by Medicare ...
/ 2022 News, Daily News
The California Attorney General joined a coalition of 17 attorneys general, as well as state and local labor agencies, in a comment letter in support of a U.S. Department of Labor (DOL) proposal to strengthen federal protections against worker misclassification. In filing the comment letter this month, California joins the attorneys general of Massachusetts, New York, Pennsylvania, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, Rhode Island, and Washington, as well as the City of Philadelphia, the Pennsylvania Department of Labor and Industry, and the Washington Department of Labor and Industries. Worker misclassification occurs when a firm inappropriately treats its employees as independent contractors, thereby evading legal obligations such as minimum wage, overtime, payroll taxes, and workers’ compensation insurance. Over 26 States (including California after passing AB-5) employ variations of the "ABC" test, which generally provides that individuals who provide services in exchange for remuneration are employees unless all three of the following elements are proven: (A) such individual is free from control over the performance of such service; (B) such service is outside the putative employer’s usual business; and (C) such individual is customarily engaged in an independent trade, profession or business. However, in 2019, the NLRB adopted a standard (SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019)) that allowed employers to classify workers as independent contractors if they can demonstrate, on balance, that the workers appear to have access to "entrepreneurial opportunity" similar to that of running an independent business. The NLRB’s 2019 decision set aside a prior, more stringent test (FedEx Home Delivery, 361 NLRB 610, 611 (2014)), for classifying workers as independent contractors. That prior standard held that while multiple factors must be considered, a significant factor in any worker classification analysis was the extent to which an employer controls an individual’s work. During President Trump's administration, the DOL issued a final rule clarifying when workers are independent contractors versus employees. The rule applied an economic-reality test that primarily considers whether the worker operates his or her own business or is economically dependent on the hiring entity. The standard was slated to take effect in March 2021, but President Joe Biden's administration issued rules delaying and ultimately withdrawing the standard. However, the Coalition for Workforce Innovation (a group that represents Uber, Lyft and other gig-economy businesses) and other similar business groups convinced Judge Marcia Crone of the U.S. District Court for the Eastern District of Texas to reinstated the Trump administration's rule, which she did in a 43 page March 14 order, finding that the Biden administration's actions violated the Administrative Procedure Act (APA). In the Attorney General comment letter, the coalition urges DOL to act swiftly on its proposal to rescind and replace a Trump-era rule regarding independent contractor status, which they say put workers at increased risk of misclassification by unlawfully broadening the definition of an independent contractor and upending previous standards implemented under the federal Fair Labor Standards Act (FLSA). The attorneys general, among other things, assert: - - The proposed rule is consistent with the text and purpose of the FLSA, legal precedent, and prior DOL guidance; - - Replacing the Trump-era rule, which (they say) was contrary to law, with the current proposal will restore clarity for workers, businesses, and the public; - - Through the economic reality test, the proposed rule offers strong protections against workers being improperly classified; - - DOL took appropriate steps to thoroughly analyze alternative potential regulatory approaches and the current proposal is necessary to achieve consistent application of the FLSA; and - - DOL should act swiftly to adopt the proposed rule. Thus, the rules defining what is and is not an "independent contractor" remain controversial and to some extent volatile and uncertain in many jurisdictions. The final rule by the DOJ in the current chapter of the classification battle continues, with now 17 Attorney Generals supporting a more liberal definition of employee status ...
/ 2022 News, Daily News
Desert Regional Medical Center (DMRC) is an acute care hospital owned and operated by a subsidiary corporation of Tenet Healthcare Corporation. DRMC provides healthcare services and is engaged in interstate commerce within the meaning of the Federal Arbitration ACT (FAA). Nurses Leah Miller, Lynn Fontana, and Renita Romero have been employed by them pursuant to a collective bargaining agreement (CBA) negotiated between DRMC and the Union. Article 11 of the CBA includes provisions governing RN rest breaks, meal periods, and payment of missed break premiums. Article 9 of the CBA sets forth mandatory grievance and arbitration procedures which must be followed when processing disputes involving interpretation or application of the CBA. Article 9E of the CBA states that individual RNs and DRMC may voluntarily agree to arbitrate “any dispute not otherwise arbitrable under the [CBA]” under the Tenet Fair Treatment Process (FTP), which provides dispute resolution procedures for employment related disputes. Each of them signed a DRMC employment document, entitled “Acknowledgement,” which referred to an Employment Arbitration Agreement. Under the agreement, they agreed to submit non-CBA covered claims or disputes to final and binding arbitration before the American Arbitration Association (AAA). In March 2015, the Union filed with DRMC, on behalf of DRMC’s RNs, a meal and rest break grievance. The Union group grievance alleges that DRMC was committing ongoing violations of the CBA and California state law. It was not resolved, so In May 2015, the Union sent DRMC a letter requesting arbitration of the unresolved meal and rest period grievance under the CBA. The DRMC RNs in this case each filed their own claims with the Labor Commissioner, alleging violations of Labor Code sections 203, 226.7, and 517, and Wage Order 5.In February 2019, DRMC filed with the Labor Commissioner a brief entitled “Defendant’s Jurisdictional Objections,” arguing that the Labor Commissioner lacked jurisdiction to hear and decide Respondents’ individual claims because they had to be resolved in another forum. However, in February and March 2019, the Labor Commissioner heard under Labor Code section 98, Respondents’ individual claims. During the hearing, which lasted several days, the hearing officer heard testimony and the parties presented documentary evidence and arguments. After submission, DRMC was ordered to pay Miller $64,120.64; Romero $58,835.87; and Fontana $51,156.97 for unpaid wages and interest. On August 7, 2019, DRMC filed in the Riverside County Superior Court a notice of filing a de novo appeal of the Labor Commissioner’s order awarding unpaid wages. On August 26, 2019, DRMC filed notices of removal of DRMC’s action appealing the Labor Commissioner’s Order, to the federal district court, which later remanded the case back to state court. On July 23 and 24, 2020, DRMC filed petitions to compel arbitration of Respondents’ individual claims and stay the trial court action. At that point there were difficulties in proceeding due to the pandemic. On August 12, 2020 the Union and Tenet, on behalf of DRMC, had agreed to arbitrate the Union group grievance regarding “Missed Meals-Time Sheets,” and appoint Michael Prihar as arbitrator. The trial court denied DRMC’s petitions to compel arbitration on the individual nurses actions based on a finding DRMC waived the right to arbitrate. The Court of Appeal affirmed the order denying DRMC’s amended petitions to compel arbitration and request for a stay in the unpublished case of Desert Regional Medical Center v. Miller et. al - E076058 (December 2022. The principal question on appeal is whether DRMC waived its contractual right, if any, to arbitrate the nurses individual claims. The Court of Appeal concluded that, even assuming DRMC met its burden of establishing there was an applicable written contract requiring arbitration of Respondents’ individual claims, DRMC waived any such right by delaying filing the Petition to compel arbitration until July 23 and 24, 2020. There is no single test under state or federal law that delineates the nature of the conduct that will constitute a waiver of arbitration. In the past, California courts have found a waiver of the right to demand arbitration in a variety of contexts, ranging from situations in which the party seeking to compel arbitration has previously taken steps inconsistent with an intent to invoke arbitration, to instances in which the petitioning party has unreasonably delayed in undertaking the procedure. Here, DRMC did not timely raise its right to arbitrate Respondents’ individual claims or take affirmative steps to implement the process. DRMC delayed filing its Petition to compel arbitration for over four years, which included at least three years from when Respondents submitted their individual claims against DRMC with the Labor Commissioner, until the Labor Commissioner decided the claims in July 2019. In August 2019, DRMC attempted to remove to federal court its state court action appealing the Labor Commissioner’s decision without success. DRMC invoked the litigation machinery, including filing a de novo appeal of the Labor Commissioner’s decision in state court, and DRMC delayed petitioning to compel arbitration for a substantial period of time, which was prejudicial to Respondents. The trial court therefore did not err in ruling that DRMC waived any right DRMC may have had to arbitrate Respondents’ individual claims ...
/ 2022 News, Daily News
In the United States, workers' access to bereavement leave in the event of the tragic loss of a family member is inconsistent or nonexistent. The state of Oregon offers up to 2 weeks of bereavement leave for employees working for employers of a certain size under its unpaid but job-protected family leave law. There is no federal law requiring that employers provide bereavement leave. This left it up to employers and employees to make informal arrangements. Now in California, newly passed law, AB 1949 which added 12945.7 is added to the Government Code, takes effect on January 1, and requires private employers with five or more employees and public sector employers to provide employees with at least 30 days of service up to five unpaid days of bereavement leave upon the death of a family member. The five days of bereavement leave must be provided in addition to the 12 weeks of family and medical leave permitted under the the California Family Rights Act (CFRA). The days of bereavement leave need not be consecutive. “Family member” means a spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law as defined in Section 12945.2. The bereavement leave shall be completed within three months of the date of death of the family member. The bereavement leave shall be taken pursuant to any existing bereavement leave policy of the employer.If there is no existing bereavement leave policy, the bereavement leave may be unpaid, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee. If an existing leave policy provides for less than five days of paid bereavement leave, the employee shall be entitled to no less than a total of five days of bereavement leave, consisting of the number of days of paid leave under the existing policy, and the remainder of days of leave may be unpaid, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee. If an existing leave policy provides for less than five days of unpaid bereavement leave, the employee shall be entitled to no less than five days of unpaid bereavement leave, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee. The employee, if requested by the employer, within 30 days of the first day of the leave, shall provide documentation of the death of the family member. As used in this subdivision, “documentation” includes, but is not limited to, a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency. The employer shall maintain the confidentiality of any employee requesting leave under this . Any documentation provided to the employer pursuant to this new law shall be maintained as confidential and shall not be disclosed except to internal personnel or counsel, as necessary, or as required by law. The new law does not apply to an employee who is covered by a valid collective bargaining agreement if the agreement expressly provides for bereavement leave equivalent to that required by this section and for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked, where applicable, and a regular hourly rate of pay for those employees of not less than 30 percent above the state minimum wage ...
/ 2022 News, Daily News
The National Council on Compensation Insurance (NCCI) just published the results of its annual survey of top insurance executives. The summary of responses is intended to provide a general sense of the most frequently mentioned items in our survey and the underlying questions that these executives have regarding the future. The 100 respondents provided clear insight into the concerns that are front-of-mind for them as we head into 2023. Rate adequacy - Rate adequacy is always a concern. Although premium rates and loss costs have been declining for years in most states, the workers comp line has retained an historically low combined ratio.Carriers expressed uncertainty about what the next five years will look like, including whether this downward trend will change and whether a change will result in loss cost/rate level increases. Many factors are in play that affect a carrier’s ability to maintain underwriting profitability, such as medical cost concerns, labor market dynamics, emerging risks, reserving practices, and general inflation. Executives expressed concerns that when trends - which have driven rates down for many years - eventually turn, the industry may not be able to react quickly. A related consideration was also raised: will the collective unfamiliarity of what an environment with rate level increases looks like affect the industry’s ability to adequately address rate level needs? Medical inflation - Carriers noted concerns about the rising cost of medical treatments, especially continuous advancement in medical technology and treatments. When carriers do not see an associated rise in premium rates it can be disconcerting, in the sense that rates and costs could get too far out of sync. Trends in WC medical costs reflect changes in the mix of injuries and the types of services used to treat them, as well as changes in the prices of those services. And while medical prices contribute to general inflation, they do not grow at the same rate. The economy - Uncertainty surrounding things like the labor market, an economic slowdown or recession, interest rates, and investment returns, all point to a challenging economic landscape for carriers. The possibility of a recession weighs on some respondents considering the impact that unemployment and stagnant job growth could have on industries they serve. Shifting workforce/workplace - This topic can be characterized by two major trends that carriers are watching: - - Worker shortages and inexperienced workers. The labor market continues to be tight, forcing some employers to hire inexperienced workers with less focus on safety training and pushing seasoned workers to work additional hours. Carriers are concerned with how this could affect the frequency and severity of on-the-job injuries. - - Remote and hybrid workers. Changes in work patterns following the pandemic are creating work environments with which the industry has little experience. How much lower is injury frequency for employees who are working from home? What new WC risks are there when working from home? How might payroll and premiums be impacted, as well as classifications of workers? Carriers are waiting for new data to gain insight. NCCI Chief Actuary Donna Glenn and NCCI Chief Customer Operations Officer Mark Mileusnic will take a deeper dive into the top concerns in an upcoming Virtual Carrier Education Series webinar Thursday, January 26, 2023, at 2:00 p.m. ET. You don’t need to be an insurance carrier to attend - the webinar is free and open to all. Registration details are coming soon to ncci.com ...
/ 2022 News, Daily News