Some injured workers may be having trouble filling their prescriptions at pharmacies in the Bay Area. Berkeleyside reports that closures and reduced pharmacy hours at drug stores in the Bay Area have left customers scrambling to find places to get their prescriptions filled. CVS, Walgreens and Rite Aid have all announced cutbacks in hours and closures as the industry refocuses on online delivery. This has left many pharmacists and staff in Berkeley, Oakland and Emeryville overwhelmed and under-scheduled, and their customers waiting in long lines at the remaining pharmacies. John Frahm, secretary-treasurer of United Food and Commercial Workers Local 5, said that out of the 75 CVS stores they represent, seven or eight locations shuttered since the end of last year in Marin, Alameda, Santa Clara, and San Mateo counties. CVS, which announced in November 2021 the closure of 900 brick-and-mortar stores starting in spring 2022, declined to discuss the recent closures in an email. According to Walgreens and CVS websites, controlled medications, such as some pain and ADHD drugs, cannot be delivered. Those medications require a customer to pick them up at a physical pharmacy. On a recent Tuesday, the parking lot was packed at the Walgreens on Adeline Street in Berkeley. Twelve people lined up along the cosmetics aisle and waited to be seen by the pharmacist. Walgreens permanently closed two pharmacies in Berkeley in 2020 and 2021 and one in Oakland in July 2021, which city leaders tried unsuccessfully to keep open. "What we are seeing in some areas is consistent with what many other healthcare entities have been experiencing - staffing challenges due to the ongoing national labor shortage,- Kris Lathan, a spokesperson for Walgreens, wrote in an email. "We continue to take steps to help mitigate these pressures, however, there are some instances where we’ve had to adjust or reduce pharmacy operating hours as we work to balance staffing and resources in the market to best meet customer demand." In September, the CVS in Emeryville on San Pablo Avenue permanently closed, leaving the city with one CVS pharmacy - located inside a Target. Frahm said workers displaced by the pharmacy closures were successfully transferred from that store to other locations. "Right now, with so many open positions available in the job market, we’ve been able to avoid people being laid off and get them transferred to work at other locations," Frahm said. In October, a sign posted on the sliding door of Walgreens on Gilman Avenue in Berkeley directed customers to the Adeline Street Walgreens or the only 24-hour Walgreens in Alameda 3 miles away. Inside, a pharmacy staffer turned people away, telling them two of their druggists had recently quit and the pharmacy was temporarily closed. It closed for several days but has since reopened. There is currently only one Rite Aid in Oakland and none in Emeryville or Berkeley. Due to recent robberies at pharmacies, Local 5 built into their most recent contract with CVS a requirement for higher staffing levels in the evenings. In Oakland, 12 people ransacked a small privately owned pharmacy in 2021. According to an Emeryville Police Department report, a robbery occurred at the now-closed San Pablo Avenue CVS in 2021. Additionally, in Berkeley, a CVS was robbed at Shattuck Avenue in 2020, according to KTVU. According to posted hours, the latest any retail pharmacy is open in Berkeley or Emeryville is 8 p.m. Oakland has two retail pharmacies open until 9 p.m. Most remaining open pharmacies in the tri-city area close at 6 p.m.The Walgreens’ pharmacy on Shattuck Avenue in Berkeley is open from 9 a.m. to 6 p.m. and is closed on the weekends. Earlier this month, the Walgreens on 34th Street and Telegraph Avenue in Oakland closed ...

Jinshu "John" Zhang was an equity partner in Dentons U.S. LLP, a major law firm with offices throughout the United States. A dispute arose between them over a multimillion dollar contingency fee from a client whom Zhang brought to the firm. Bloomberg Law places the amount of this fee at about $35 million. Zhang has been a partner at major law firms for two decades and led the China practice at Greenberg Traurig before joining Reed Smith in 2008, according to legal media coverage. He joined Dentons in 2014, his LinkedIn profile says. Zhang and the firm represented a China-based client who sought to enforce a foreign arbitral award in China, resulting in a multi-million dollar settlement for their client. Dentons alleges it terminated Zhang for cause, asserting a breach of fiduciary duty, and initiated an arbitration in New York. The partnership agreement has a broad arbitration clause. It covers "all disputes relating to the validity, breach, interpretation or enforcement of this Agreement, as well as all disputes of any kind between or among any of the Partners and/or the Partnership relating to the Partnership and/or the Business, including statutory claims of any kind . . . ." The partnership agreement also contains a clause delegating all questions of arbitrability to the arbitrator, and a clause providing for arbitration of all disputes in Chicago or New York. Zhang then sued Dentons for wrongful termination and other causes of action in Los Angeles Superior Court. He obtained a temporary restraining order and then a preliminary injunction, enjoining the New York arbitration until the court could decide whether there was a clear and unmistakable delegation clause. After the TRO was issued, Dentons filed a motion under Code of Civil Procedure section 1281.4, seeking a mandatory stay of the case based on its motion to compel arbitration that was then pending in a New York court, which the New York court later granted. In opposition, Zhang argued he was Dentons’s employee, and Labor Code section 925 "render[ed] the courts of New York incompetent to rule on Dentons’ motion to compel arbitration." Section 925 prohibits an employer from requiring an employee who resides and works in California to agree to a provision requiring the employee to adjudicate outside California a claim arising in California. The California court granted Dentons’s motion to stay Zhang’s action in superior court pending completion of arbitration in New York. The court ruled the arbitration agreement clearly and unmistakably delegated arbitrability issues to the arbitrator, including the applicability of Labor Code section 925 to the dispute. Zhang sought a writ of mandate, which the California Court of Appeal denied. The California Supreme Court granted review and transferred the case back to the Court of Appeal, directing it to issue an order to show cause, and after doing so, it again denied the petition in the published case of Zhang v. Super. Ct. -B314386 (November 2022). Labor Code section 925 provides in part: "(a) An employer shall not require an employee who primarily resides and works in California, as a condition of employment, to agree to a provision that would do either of the following: [¶] (1) Require the employee to adjudicate outside of California a claim arising in California. [¶] (2) Deprive the employee of the substantive protection of California law with respect to a controversy arising in California. [¶] (b) Any provision of a contract that violates subdivision (a) is voidable by the employee, and if a provision is rendered void at the request of the employee, the matter shall be adjudicated in California and California law shall govern the dispute. "The New York court is a court of competent jurisdiction to rule on Dentons’s motion to compel arbitration. The proposition that Labor Code section 925, when invoked by a plaintiff, automatically strips another state’s courts of jurisdiction is unsupported by legal authority, is antithetical to notions of comity, under which judges decline to exercise jurisdiction when matters are more appropriately adjudicated elsewhere, and is at odds with the animating purpose of the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.)." The US Supreme Court’s most recent discussion of FAA preemption appears in Viking River Cruises, Inc. v. Moriana (2022) ___U.S.___ [142 S.Ct. 1906] (Viking), and explains: "Section 2’s mandate protects a right to enforce arbitration agreements.That mandate would be seriously compromised if we were to conclude that the invocation of section 925 permits a party to disregard his agreement that the arbitrator is to decide all issues of arbitrability." "Here, our enforcement of the parties’ agreement to delegate arbitrability decisions to the arbitrator does not "alter or abridge" petitioner’s substantive rights under Labor Code section 925; "it merely changes how those rights will be processed." (Viking, supra, 142 S.Ct. at p. 1919.) Section 925 presents no conflict with the FAA when we give effect to the parties’ agreement to delegate arbitrability issues to the arbitrator. The arbitrator will decide, as agreed, all issues of arbitrability, including whether petitioner is an employee who is entitled to invoke the protections of section 925." "If the arbitrator decides petitioner is an employee for purposes of Labor Code section 925, then (as Dentons concedes), "none of his claims against Dentons, or Dentons’ claims against him, would ever be adjudicated outside of California." If the arbitrator decides petitioner is not an employee, section 925 has no application, and the merits of the parties’ dispute will be decided by arbitration in New York, as agreed." ...

A licensed Orange County pharmacist has been found guilty by a jury of nearly two dozen federal criminal charges for her role in a health care fraud scheme in which more than 1,000 bogus prescriptions for compounded medications were filled, costing Tricare, the U.S. military’s health care plan, more than $11 million in losses, the Justice Department announced today. Sandy Mai Trang Nguyen, 42, of Irvine, was found guilty Tuesday afternoon of 21 counts of health care fraud, and one count of obstruction of a federal audit. Compounded drugs are tailor-made products doctors may prescribe when the Food and Drug Administration-approved alternative does not meet the health needs of a patient. According to evidence presented at her five-day trial, Nguyen was the pharmacist-in-charge of the now-defunct Irvine Wellness Pharmacy in Irvine. From late 2014 to May 2015, Nguyen and others under her supervision filled approximately 1,150 compounded prescriptions for pain, scarring and migraines that Tricare reimbursed for tens of thousands of dollars per prescription. Nearly all of the prescriptions were sent to the pharmacy by so-called marketers who were paid kickbacks of upwards of 50% of the Tricare reimbursements. The beneficiaries were solicited to provide their Tricare insurance information for medications they did not seek out or need, and most were never examined by a physician. The prescriptions were electronically sent from marketers or telemedicine businesses and submitted by the pharmacy for reimbursement even though Tricare rules excluded reimbursements for claims based on telemedicine visits and would not, in any event, have been authorized had Tricare known the prescriptions originated based upon the payment of kickbacks. Nguyen was aware that the prescriptions were purportedly written by physicians in states other than where the beneficiaries lived, multiple members of the same families received the same medications, and the same prescriptions were written for members of different patient populations, including a 13-year-old boy in Chicago who got the same prescription as an 86-year-old woman in Orange County who happened to be Nguyen’s grandmother. The pharmacy invoiced the beneficiaries to pay hundreds of dollars in required co-payments, but the beneficiaries stated that they knew nothing about co-payments and understood that the medications were fully covered by Tricare, according to trial testimony. The total co-payments due during the scheme exceeded $16,000, but the pharmacy never collected them. Nguyen also obstructed a federal audit by providing bogus, cut-and-pasted prescriptions to cover-up Tricare’s effort to validate millions of dollars paid for the same prescriptions. During Nguyen’s tenure as pharmacist-in-charge, Tricare paid $11,098,756 on the fraudulently submitted claims. United States District Judge Otis D. Wright II scheduled an April 3, 2023 sentencing hearing, at which time Nguyen will face a statutory maximum sentence of 10 years in federal prison for each health care fraud count, and five years in federal prison for the audit obstruction count ...

In September 2021, the San Diego Unified School District adopted a "Vaccination Roadmap" requiring students ages 16 or older to be vaccinated for COVID-19 in order to attend in-person classes and participate in sports and other extracurricular activities. Unvaccinated students in this group were involuntarily placed on independent study. In October 2021, Let Them Choose filed a complaint and petition for a writ of mandate challenging the Roadmap. Let Them Choose is "an initiative of Let Them Breathe, California nonprofit public benefit corporation that represents a community of more than 20,000 parents." About six weeks later, a similar complaint was filed by S.V., the parent of a 16-year-old student. The cases were consolidated for trial. After conducting a hearing on motions for judgment, the trial court ruled that the District’s COVID-19 immunization requirement is preempted by state law. The trial court noted "I think that the state . . . has fully occupied this field, there’s a statewide standard, and a local school district simply doesn’t have the authority to do something inconsistent with the statewide standard." The court of appeal affirmed in the published case of Let Them Choose v. San Diego Unified School Dist -D079906 (November 2022). The issue in this case is whether a school district may require students to be vaccinated for COVID-19 as a condition for both (1) attending in-person class, and (2) participating in extracurricular activities. A century ago during a smallpox epidemic, the California Supreme Court held that the Legislature may require school children to be vaccinated against that disease. (Abeel v. Clark (1890) 84 Cal. 226, 230.) Since then, the Legislature has required students to be vaccinated for 10 diseases-but COVID-19 is not yet among them. Health and Safety Code section 120335 provides that a school "shall not unconditionally admit" a pupil who has not been vaccinated for: polio, diphtheria, tetanus, pertussis, hepatitis B, haemophilus influenzae type B (HIB), measles, mumps, rubella, and chicken pox. (§§ 120370, subd. (a)(3), 120335, subd. (b)(1)‒(10).) "Each of the 10 diseases was added . . . through legislative action, after careful consideration of the public health risks of these diseases, cost to the state and health system, communicability, and rates of transmission." As enacted in 1995, former sections 120365 and 120370 provided exemptions from the vaccination requirements based on personal beliefs or medical reasons. But in 2015, the Legislature eliminated the personal beliefs exemption for the existing 10 specified vaccinations. At the same time, it also considered whether vaccination should be mandated on a school district by school district basis, or instead statewide. A bill analysis explained that a statewide standard was preferred. "To provide a statewide standard[ ] allows for a consistent policy that can be publicized in a uniform manner, so districts and educational efforts may be enacted with best practices for each district. . . . Further in consultation with various health officers, they believe a statewide policy provides them the tools to protect all children equally from an outbreak." The Legislature has fully addressed the process of adding diseases to the 10 enumerated ones in section 120335. In subdivision (b)(11) of that statute, the Legislature contemplated new vaccine mandates in the future without further legislative action -but assigned that responsibility not to school authorities, but rather to the Department of Public Health. "The Roadmap’s COVID-19 mandate unlawfully seeks to usurp that authority." Intrastate preemption occurs when local law duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication. Given the scope of the state statutes, school districts have no remaining discretion in these matters.Thus the Roadmap is preempted because it purports to regulate an area of law that the Legislature has "fully occupied." ...

The Justice Department announced that it has filed a proposed consent decree in federal court to resolve allegations that the Regents of the University of California on behalf of the University of California, Berkeley violated Title II of the Americans with Disabilities Act (ADA) because much of UC Berkeley’s free online content is inaccessible to individuals with hearing, vision, and manual disabilities. The proposed consent decree was filed together with a complaint setting forth the allegations of discrimination. UC Berkeley makes conferences, lectures, sporting events, graduation ceremonies, and other University events available to the public on its websites and on other online platforms, including its YouTube and Apple Podcasts channels. It also makes courses available on its UC BerkeleyX platform. Much of this online content is not accessible to people with disabilities because it lacks captions and transcripts for individuals who are deaf and alternative text describing visual images for individuals who are blind. It is also formatted in a way that does not allow individuals with disabilities to access the content using screen readers or other assistive technology. "By entering into this consent decree, UC Berkeley will make its content accessible to the many people with disabilities who want to participate in and access the same online educational opportunities provided to people without disabilities," said Assistant Attorney General Kristen Clarke for the Justice Department’s Civil Rights Division. "This decree will provide people with disabilities access to the numerous free online courses, conferences, lectures, performances, and other programming offered by UC Berkeley and its faculty, providing lifelong learning opportunities to millions of people." "Through this consent decree, the Department of Justice demonstrates its commitment to ensuring compliance with the ADA by providing individuals with disabilities a full and equal opportunity to participate in and enjoy the benefits of UC Berkeley’s services, programs, and activities in equal measure with people without disabilities," said U.S. Attorney Stephanie M. Hinds for the Northern District of California. Under the three-and-a-half-year long consent decree, which requires court approval, UC Berkeley will make all future and the vast majority of its existing online content accessible to people with disabilities. This includes BerkeleyX courses, university websites, and video and podcast content on its YouTube, Apple Podcasts, and other third-party platforms. UC Berkeley will also revise its policies, train relevant personnel, designate a web accessibility coordinator, conduct accessibility testing of its online content, and hire an independent auditor to evaluate the accessibility of its content ...

Cover Right is a roofing company. It held a workers’ compensation insurance policy with State Fund in 2017, which covered January 1, 2017 to December 31, 2017 (the 2017 policy). State Fund assigned the 2017 policy a dual wage classification relating to roofing operations. The 2017 policy automatically renewed after lapsing. The renewed policy with State Fund covered January 1, 2018 to December 31, 2018. State Fund calculated the estimated premium for the 2018 policy under the assumption Cover Right would again be assigned the Class 5553-1 classification. In 2018, the base rate for Class 5553-1 was $26.92 per $100 of payroll, while the base rate for Class 5552-1 was $58.41 per $100 of payroll. Cover Right made $25,445.64 in estimated premium State Fund performed an audit of the 2018 policy in early 2019. It found Cover Right had paid most of its employees $23 to $24 an hour in 2018, which was less than the new dual wage threshold of $25 an hour. Cover Right owed a final premium of $56,766.72 for the 2018 policy. Cover Right maintains it did not know the dual wage threshold had changed until it received State Fund’s bill. It did not pay the bill, so State Fund assigned the debt to Creditors Adjustment Bureau who filed suit to collect it. Cover Right then filed a cross-complaint against State Fund, asserting negligence and equitable indemnity claims based on an alleged violation of section 11664, subdivision (e)(6)(A). Specifically, Cover Right contended State Fund failed to provide notice that its base rate would increase from $31.18 per $100 of payroll in 2017 to $58.41 per $100 of payroll in 2018, an increase of over 87 percent. State Fund then moved for summary judgment on Cover Right’s claims. It argued there was no violation of section 11664, subdivision (e)(6)(A), because it did not increase the respective base rates for either Class 5552-1 or Class 5553-1 by more than 25 percent. Instead the WCIB changed the applicable dual wage threshold from $23 per hour in 2017 to $25 per hour in 2018. State Fund asserted the statute does not require notice for such changes. The trial court agreed with State Fund and granted summary judgment. The court of appeal affirmed in the published case of Cover Right Roofing, Inc. v. State Compensation Ins. Fund -G060210 (November 2022). This appeal asks the Court of Appeal to interpret Insurance Code section 11664, subdivision (e)(6)(A), which requires workers’ compensation insurers to provide their insureds with notice of certain premium rate increases: "[i]f the premium rate in the governing classification for the insured is to be increased 25 percent or greater and the insurer intends to renew the policy, the insurer shall provide a written notice of a renewal offer not less than 30 days prior to the policy renewal date." State Fund assigns base rates to its insureds using industry classifications from the Uniform Statistical Rating Plan - 1995 (the USRP). The USRP industry classifications are established by the Workers’ Compensation Insurance Rating Bureau and are codified in the California Code of Regulations, title 10, section 2318.6. The WCIRB also determines the dual wage threshold amount. It argued there was no violation of section 11664, subdivision (e)(6)(A), because it did not increase the respective base rates for either Class 5552-1 or Class 5553-1 by more than 25 percent. Rather, Cover Right’s classification changed in 2018, which resulted in a higher corresponding base rate. State Fund asserted the statute does not require notice for such changes. The court of appeal concluded that "in 2017, State Fund did not know the average wage Cover Right would pay its workers in 2018. It could only estimate what that average rate would be. Accordingly, prior to the effective date of the 2018 policy, State Fund could only speculate as to whether Cover Right would be assigned the Class 5552-1 or Class 5553-1 classification for 2018. Given the information it had, at best, State Fund could have provided Cover Right with notice of a potential change to its base rate for the 2018 policy. But the statute does not require notice of potential increases. It only requires notice if premium rate "is to be increased 25 percent or greater." "We sympathize with Cover Right’s situation. Given all the responsibilities facing small businesses, we do not fault Cover Right for missing the Bureau’s increase of the dual wage threshold. Cover Right likely would have avoided the higher base rate had it known of this change. Nonetheless, as set forth above, section 11664, subdivision (e)(6)(A), does not require an insurer to provide notice in the circumstances at issue here. Further, as a matter of public policy, it would be unreasonable to compel insurers to monitor the Bureau’s changes to the various industry classifications." ...

A recent U.S. Census Bureau survey found that about 1 in 5 California adults lived in households in which at least one person had telecommuted or worked from home five or more days the prior week. Even as pandemic lockdowns fade into memory, COVID-19 has transformed California’s workplace culture in ways researchers say will reverberate well beyond 2022. According to new data from the U.S. Census Bureau, working from home for some portion of the week has become the new normal for a large segment of Californians. The data shows high-income employees with college degrees are more likely to have access to this hybrid work model, while lower-income employees stay the course with on-site responsibilities and daily commutes. In addition, researchers say the shift will ripple across the broader economy in ways big and small, as more employees have the flexibility to live farther from a job site and as workplace traditions like lunch outings and bar nights fade or evolve. The U.S. Census Bureau interviewed roughly 260,000 Americans from June through October, including about 20,000 Californians, as part of a wide-ranging questionnaire called the Household Pulse Survey. Surveyors asked dozens of questions about pandemic-era lifestyle changes, including some about working from home. The survey found that nearly 20% of California adults lived in households in which at least one person had telecommuted or worked from home five days or more in the previous week. About 33% of California adults lived in households in which someone had worked from home at least one day the previous week. Nationwide, the survey found that almost 30% of adults lived in households in which at least one person worked from home for some portion of the previous week. About 16% lived in households in which someone worked from home at least five days the previous week. The results mark a notable shift from previous Census Bureau surveys that asked about working from home, though in different terms. In 2019, before the pandemic, about 6.3% of employed Californians and 5.7% of employed Americans said they "usually worked from home." And according to the report by California Healthline, researchers who specialize in workforce issues said the findings mirror their own and are indicative of a cultural upheaval that will outlive the pandemic. Jose Maria Barrero is an academic economist and a co-founder of WFH Research, which is documenting the shift toward working from home. Before the pandemic, about 5% of workdays in the U.S. were conducted from home, according to his group’s analyses. In contrast, its surveys this year show that about 30% of working days in the U.S. are now work-from-home days. Barrero said employers recognize that many people have found they prefer working from home - and that it gives companies leverage to ask workers to accept less money in exchange. He also said his research also indicates that today’s work models - for both at-home and on-site employees - are likely to endure for months and years. Andra Ghent, an economist at the University of Utah who studies work-from-home patterns, said tens of millions of Americans are settling into "hybrid" arrangements, in which they work from home a few days a week and occasionally go into the office. Before the home-work option, she said, many didn’t want to live too far from the urban core, concerned that commutes would become unmanageable. But with routine daily commutes out of the picture, many will move to the suburbs or exurbs, where they will have more space, she said. On the one hand, commuting less, particularly by car, is often good for the health of the environment, Ghent noted. "But if people move to places where the usual mode of transit is cars instead of something that’s more pedestrian- or cyclist-friendly or more likely to use public transit, that’s not such a good thing," Ghent said. "It sort of increases our urban sprawl, which we know is not good for sustainability." The migration to telecommuting also allows employers to look to other states or even other countries for hires. Tobias Sytsma, an associate economist at the Rand Corp., recently authored a report detailing how U.S. companies may increasingly "offshore" remote work to employees abroad ...

James Whitlach is a former real estate agent who was affiliated with defendant Premier Valley, Inc., doing business as Century 21 MM,, a real estate brokerage firm located in Oakdale California. He filed a Labor Code Private Attorney General Act of 2004 (PAGA) action against his employer alleging multiple violations of the Labor Code, among other claims. The complaint alleged the class members were misclassified as independent contractors and as a result were not properly paid all wages due and owing, were subjected to unlawful deductions, and were not reimbursed for reasonable and necessary business expenses. Premier Valley and Century 21 demurred to the Second Amended Complaint. They argued that Whitlach was an independent contractor as a matter of law. The trial court sustained the employer's demurrer and dismissed the Second Amended Complaint without leave to amend. The Court of Appeal affirmed the trial court in the unpublished case of Whitlach v. Premier Valley F082322 (November 2022). On appeal Whitlach contends the trial court applied the wrong test for determining whether he was an independent contractor or employee of Premier Valley for purposes of his PAGA cause of action and derivative Labor Code claims. In the alternative, he argues Labor Code section 2778(c)(1) is unconstitutional, and his independent contractor agreement with Premier Valley is unconscionable and unenforceable. In order for Whitlach to proceed on his PAGA claim, he was required to be an employee of Premier Valley, because PAGA, as well as the Labor Code statutes Whitlach seeks to enforce through PAGA, apply only to employees, and not to independent contractors. The starting point for this analysis is Labor Code section 2778(c)(1), formerly Labor Code section 2750.3, subdivision (d)(1), which was enacted in 2019 by Assembly Bill No. 5 (AB 5), and became effective on January 1, 2020. Prior to the enactment of Labor Code section 2778(c)(1), the California Supreme Court decided, in 2018, the watershed Dynamex case which set forth the ABC test to determine if there is an employment relationship. AB 5, provided that multiple occupational classifications were exempted from the sweep of Labor Code section 2775, subdivision (b)(1) which codified Dynamex. "Real estate licensee" was one of the occupational classifications that was specifically exempted from the purview of Labor Code section 2775, subdivision (b)(1), and in turn from the application of Dynamex and the ABC test for purposes of the Labor Code, Unemployment Insurance Code, and wage orders. Instead of AB-5, the Court of Appeal concluded the applicable test for the purpose of this case is the test set forth in Unemployment Insurance Code sections 650 and 13004.1, as incorporated in Business and Professions Code section , subdivision (b), which is itself incorporated in Labor Code section 2778, subdivision (c)(1). The trial court reached the same conclusion and applied the correct test in ruling on defendants’ demurrer. Whitlach’s equal protection claim to the effect that Labor Code section 2778(c)(1) violates equal protection by treating real estate salespersons differently than other workers was rejected.Thus the Court of Appeal affirmed the trial court judgment. However, the Court of Appeal noted that "Business and Professions Code section 10032(b), creates an express exception for a subpart of the Labor Code, that is, workers compensation, in that it provides that determination of the employee or independent contractor status of real estate agents for purposes of workers compensation is to be made pursuant to the Borello test." ...

The American Bar Association standards currently require law schools to use a "valid and reliable test" in admissions decisions. For years, the only standardized test that automatically met that criteria was the Law School Admission Test (LSAT), though the ABA in November 2021 added the Graduate Record Examinations (GRE) as an acceptable alternative. The council of the ABA Section of Legal Education and Admissions to the Bar has advanced a proposal to make standardized admissions tests optional at accredited law schools. On Friday, a majority of the council voted for an amendment to its testing mandate, Standard 503, at its hybrid meeting in Atlanta. The proposal is expected to go to the ABA House of Delegates for consideration at its midyear meeting in New Orleans in February 2023, and was amended Friday to state that if adopted the changes would not be implemented until the fall of 2025. The push to change Standard 503 comes after the council said in November 2021 that ABA accredited law schools could also use the Graduate Record Examination, or GRE, when considering applicants. The amended standard could end a testing requirement that for more than 50 years has been the foundation of law school admissions. Plans to alter the standard proved divisive. In May, the council decided to allow public comment for 90 days on the proposed amendments. Those in favor of relaxing Standard 503 said it would open law school doors to more underrepresented students and improve diversity in the legal profession. According to the Law School Admission Council, which administers the LSAT, from 2017 to 2018, the mean LSAT score for white test-takers was 11.5 points higher than the mean score for Black test-takers. The council’s 2022 report also suggested disparities between white test-takers and Native Americans, Hispanics and other minorities. "I believe by eliminating the standardized test requirement the legal field could possibly become more diverse and inclusive," wrote Jameelah Kates, an African American woman, who was among the many to write in support of relaxing the standard. But those opposed to the changes argued the LSAT is still the best way to determine an aspiring lawyer’s readiness to meet the demands of law school and provides an added protection because of the heavy debt burden that attending entails. In September, 60 law school deans mounted a defense of the standard. They argued that relaxing it would not necessarily even the playing field for underrepresented students. In their letter, the deans feared that the changes would be "premature and could have effects contrary to what is desired." "Specifically, we fear that an unintended consequence of removing Standard 503’s requirement that JD applicants take a valid and reliable admissions test will be to diminish the diversity of law schools’ incoming classes, by increasing reliance on grade-point average and other criteria that are potentially more infused with bias," the letter states. David Klieger, director of legal education at ETS, a nonprofit educational testing and assessment organization, echoed those concerns at the council meeting. "While the future cannot be known with absolute certainty, if the proposal is approved, there is a significant risk that competitive stresses will pressure law schools to consider lowering admission standards," Klieger said. "The stakes here are great. Law school is unlike so many other areas of higher education, and getting this wrong is enormously consequential." The push to relax Standard 503 is not without precedent. A similar plan was floated in 2018 to get rid of the law school entry exam requirements but was withdrawn shortly before the House of Delegates had a chance to vote on it ...

John Duncan is a former director of the California Department of Industrial Relations and served under two California governors. He just published a commentary on CalMatters that claims "last minute changes to Cal/OSHA’s COVID regulations are a mistake." And clarifies that there "is a right way and wrong way to draft a new regulation." He says that when adopting difficult workplace policies, rule makers should notify the public and involve stakeholders. Unfortunately, the California Occupational Safety and Health Agency is poised to make a mistake next month on their two-year extension of California’s COVID rules by squeezing in a significant change at the last minute. Last month, four members of the Cal/OSHA Standards Board ordered the agency’s staff to rewrite the draft regulations and add exclusion pay, which is essentially paid sick leave for an employee who tests positive or is exposed to COVID. If they change the regulation, stakeholders across California will see a significant change made just before the final vote on this two-year extension of COVID precautions. The merits of whether Cal/OSHA should continue requiring exclusion pay is not the issue, he says. There is a legitimate discussion about exclusion pay, and another legitimate discussion about whether emergency regulations should be extended past the end of the COVID emergency declaration in a few months. My point here is that resolving complicated and important questions requires time to gather data, talk to affected communities and generate workable solutions. "In my tenure as director of California’s Department of Industrial Relations, occupational safety and health standards were subject to a thorough vetting process, centered around the goal of establishing consensus by using scientific evidence and other underlying data. Maintaining a fair, even-handed and transparent process is critical for ensuring democratic rulemaking and effective compliance with standards that protect California’s workers and employers alike." "The question today is how should a regulation be drafted in such a challenging climate?" He then goes on to say that the answer is with data, careful preparation and stakeholder involvement. In 2009, Cal/OSHA adopted similar regulations for aerosol transmissible diseases in health care settings - and this was not some weak regulation with illusory protections. It was a first-in-the-nation standard and included specific provisions related to training, protective equipment, recordkeeping and more. Most surprisingly, the rules passed without any opposition when the Cal/OSHA Standards Board voted on it. It was something that may seem unthinkable in today’s divisive times: a consensus regulation based on scientific data, expert stakeholder input and careful discussion. "Cal/OSHA should look to its past successes and not make such a big change at the last second. Rulemaking is occasionally awkward, loud, disagreeable and painfully slow, but it is the best system out there for such important decisions." He concludes his commentary by saying there is "a slogan many sports teams and athletes follow: respect the process. That is an appropriate theme as California once again strives to lead in addressing an important workplace health and safety issue." ...

The Division of Workers’ Compensation (DWC) has announced that the 2023 minimum and maximum temporary total disability (TTD) rates will increase on January 1, 2023. The minimum TTD rate will increase from $230.95 to $242.86 and the maximum TTD rate will increase from $1,539.71 to $1,619.15 per week. Labor Code Section 4453(a) (10) requires the maximum and minimum weekly earnings upon which TTD is based be increased by an amount equal to percentage increase in the State Average Weekly Wage (SAWW) as compared to the prior year. The SAWW is defined as the average weekly wage paid to employees covered by unemployment insurance as reported by the U.S. Department of Labor for California for the 12 months ending March 31 in the year preceding the injury. In the 12 months ending March 31, 2022, the SAWW increased from $1,570 to $1,651- an increase of 5.15924 percent. The calculation of the 2023 SAWW increase is as follows: - - (2022 SAWW - 2021 SAWW)/2021 SAWW - - $1,651 - $1,570 = 81/1570 = 5.15924% The calculation of minimum TTD rate for 2023 is as follows: - - Minimum earnings for 2023 x SAWW increase x 2/3 = minimum TTD rate for 2023 - - $346.42 x 1.0515924 = $364.29 minimum TTD earnings x 2/3 = $242.86 minimum rate for 2023 The calculation of maximum TTD rate for 2023 is as follows: - - Maximum earnings for 2023 x SAWW increase x 2/3 = maximum TTD rate for 2023 - - $2,309.56 x 1.0515924 = $2,428.72 maximum TTD earnings x 2/3 = $1,619.15 maximum rate Under Labor Code Section 4659(c), workers with a date of injury on or after January 1, 2003 who receiving life pension (LP) or permanent total disability (PTD) benefits are also entitled to have their weekly LP or PTD rate adjusted based on the SAWW. SAWW figures may be verified using the U.S. Department of Labor’s data ...

EK Health Services Inc. is a national workers’ compensation managed care organization, and is a major vendor of utilization and bill review services for California claims administrators. EK Health just announced the launch of Billtelligent, a proprietary technology that it says is taking medical bill review in workers’ compensation to the next level. Billtelligent eliminates barriers for EK Health, empowering an independence the national managed care company had not previously realized. Billtelligent leverages a unique cloud-based, modular design focused on efficient bill handling through innovative strategies, supported by nimble technology. The company says it promotes flexibility through intelligent routing, automation, auto-adjudication and the ability to customize workflows with incredible specificity (without cumbersome management requirements). "We did not want to create another software for software’s sake," said Eunhee Kim, EK Health’s Owner & CEO. "With Billtelligent, we have control at all levels and we can bring the change our industry deserves. We will be faster, flexible and more accurate. This gives us the ability to better optimize managed care strategies and improve quality of care for injured workers - which is our ultimate focus." EK Health says it is keeping with its promise to transform the workers’ compensation industry as an innovator dedicated to integrity, transparency, and customer-focused solutions. "We have been asked many times to ‘demystify medical bill review’, due to the unnecessary complexities, exorbitant fees and undisclosed revenue sharing that exists today," shared Zebrah L. Jahnke, VP of Business Development. "We knew offering transparency required full ownership of our processes and technology." "It was clear to me that we needed to be free from the constraints of leased software to fully realize our potential. With Billtelligent, we have direct access to PPOs, allowing us to create our own onboarding and custom network design," Kerri Wilson, EK Health’s President & Chief Operating Officer explained. The company say the benefits and and advantages include: - - Stands alone in design, functionality, and customization - - Was built from the ground up by EK Health, giving complete independence and ownership - - Is a modern bill review technology designed to evolve - - Removes barriers through automation & limitless creative workflows - - Replaces complexity with simplicity - - Supports EK Health client programs with reduced turnaround times - - Ensures quality results through efficient execution - - Intelligent trigger-based routing for near real-time bill processing as the rule, batch processing as the exception - - Real-time access; real-time status; real-time fixes - all before a bill is finalized - - Sophisticated pended-bills load balancing to optimize workforce productivity - - User-friendly, customizable client portal allows external users access to view bills for approval/denials within the bill’s life-cycle - - Highly configurable and flexible system requiring minimal code changes to introduce new features, adapt to future requirements and onboard new clients- - - Limitless unique bill routing workflows, automate agreements, and manage client-specific network structures Through this innovative technology, EK Health says it is not just meeting clients where they are today, EK Health is taking them into the future with nimble solutions realizing immediate gains ...

Amazon is stepping back into virtual care with a new service that uses secure messaging to connect patients with doctors for help with nearly two dozen conditions. The retail giant said it will launch "Amazon Clinic" in 32 states to provide medication refills and care for conditions like allergies, erectile dysfunction, hair loss, migraines and urinary tract infections. That list does not include the flu, COVID-19, ear infections or other urgent care conditions for which patients often seek help through telemedicine. Amazon said it will work to add other conditions over time to the service, which will not accept insurance. It also plans to expand the service to more states in the coming months. Virtual care, or telemedicine, exploded in popularity when COVID-19 hit a couple years ago and patients initially hunkered down in their homes to avoid catching the virus. Its use has since waned but remains popular for its convenience and its ability to improve access to care. Some doctors had started providing care through secure messaging before the pandemic. They began working through companies like 98point6 or CirrusMD, which touts its ability to connect people with a doctor in less than a minute. Tuesday’s announcement from Amazon comes more than two months after the company said it will shut down Amazon Care, a hybrid virtual, in-home service it spent years developing. The company launched that service in 2019 for its Washington employees. It expanded it last year, allowing private employers nationwide to sign up for the service. But that effort didn’t get much traction. The company shifted its target, announcing in July that it planned to acquire One Medical, a primary care organization that, as of March, had about 767,000 members and 188 medical offices in 25 markets. The $3.9 billion deal was seen as way for Amazon to reposition its health ambitions towards a model that was more established and could me more profitable. The Federal Trade Commission is reviewing that deal. The planned purchase of One Medical was the first major acquisition announced under Amazon CEO Andy Jassy, who took over the role from founder Jeff Bezos last year. He has said he sees health care as a growth opportunity for the company beyond its more established retail and cloud computing businesses. Amazon’s foray into health care also includes Amazon Pharmacy, an online drug store that allows its Prime members to order medication or prescription refills, and have them delivered to their front door in a couple of days. In its announcement on Tuesday, Amazon said Amazon Pharmacy and One Medical were two key parts of its health care plans. "But we also know that sometimes you just need a quick interaction with a clinician for a common health concern that can be easily addressed virtually," the company said. Amazon.com Inc. said the price for care will be set by the providers, not Amazon Clinic, and it did not offer a range in a blog post announcing the service ...

When HLTH launched in 2017, it embarked on an ambitious goal to disrupt the status quo for events within the healthcare industry. It set out to bring a new vision to healthcare events that embodied the industry’s highest aspirations for innovation and transformation, all while evolving the antiquated approaches that have existed for decades. Healthcare is complex, and the community HLTH serves is multi-layered and consists of diverse individuals and organizations from around the world. Additionally, as the industry experiences a period of rapid change, one important adaptation HLTH is making to address these factors is a focus on audience journeys-tailoring pathways through content, programs and meetings based on a deeper learning about each population and individual that interacts with them. Over the past five years, HLTH has become the preeminent event in the healthcare industry. This years industry event took place in Las Vegas starting on November 13. Content sessions this year showcase the most exciting, compelling thinkers and industry leaders. The event this year includes the StartUp Health Festival which has gathered thousands of CEOs, investors, world leaders and entrepreneurs to focus on solving the world’s biggest health challenges. The fifth annual event drew thousands of healthcare leaders and innovators to Las Vegas. It’s only five years old, but the HLTH Conference has emerged as a big deal in healthcare. More than 300 people were expected to speak at the event. Some of the speakers included Greg A. Adams, chair and CEO of Kaiser Permanente, Sam Hazen, CEO of HCA Healthcare, Rosalind "Roz" Brewer, CEO of Walgreens Boots Alliance, U.S. Health and Human Services Secretary Xavier Becerra, and more. Thomas Kurian, Google Cloud CEO, spoke to healthcare and technology leaders, outlining some of the company’s latest news and talking about how technology is changing the industry. Google Cloud is working with payers, providers, and pharmaceutical companies. "It’s an ecosystem that needs to deliver the care that people need," Kurian said. Google Cloud and Epic, the electronic health records firm, have signed an agreement hailed as the first step in enabling customers to run their Epic workloads on Google Cloud. Hackensack Meridian Health said it plans to move its Epic workloads to Google Cloud, touting gains in efficiency, innovation, and security. Even with the COVID-19 pandemic and its assorted challenges, HCA Healthcare CEO Sam Hazen says the company has emerged with a commitment to embracing healthcare technology. Speaking at the HLTH Conference Sunday, Hazen said technology is the key to advancing everything from patient care to workforce development. "We’ve come out of the pandemic with a very focused effort in digitizing HCA healthcare in ways other industries have done," Hazen said. Geisinger CEO Jaewon Ryu made a case for value-based care. Ryu outlined impressive statistics demonstrating the effectiveness of Geisinger’s home-based health program and an initiative to help patients get better food. To engage in such efforts, Ryu said, "You need a payment model that supports it." And that’s where he made the case for health systems to move more toward value-based care, and away from the traditional fee-for-service model. With value-based care, health systems are rewarded for improving patients’ health, and are essentially taking on the risk that they will be successful in keeping patients healthy, or at least from avoiding more costly care. The Geisinger at Home program, which brings healthcare professionals to patients’ homes to manage complex conditions, has enjoyed considerable success, Ryu said. Patients in those programs have 36% lower hospitalization rates, and they have seen a 20% reduction in emergency department visits. More summaries of these topics can be read on the Chief Health Care Executive website ...

The Workers’ Compensation Insurance Rating Bureau of California (WCIRB), in collaboration with nine other workers’ compensation rating bureaus, has jointly released COVID-19 and Workers’ Compensation - Phase II of the Multibureau Collaboration. This updated study includes two years of claims data - Accident Years (AY) 2020 and 2021 through year-end 2021 – from the following workers’ compensation bureaus: California, Delaware, Indiana, Michigan, Minnesota, New Jersey, North Carolina, Pennsylvania, Wisconsin and National Council on Compensation Insurance (NCCI). One result of this effort is the creation of a COVID-19 claims database, which includes a comprehensive view of COVID-19 claim characteristics and trends. The analysis does not include experience from self-insured employers or denial and expense-only claims. Key findings in the report include: - - This analysis relied on data from 45 jurisdictions, representing $1.1 billion in COVID-19-related losses from about 117,000 claims. The average claim cost during the two-year period was approximately $9,600. - - On average, COVID-19 claims decreased from 11 percent of workers’ comp lost-time claims reported in AY 2020 to 4 percent in AY 2021 across the jurisdictions included in the study. - - For California, COVID-19 claim shares were somewhat higher in 2020 with 13 percent of lost time claims involving COVID-19. For 2021, the California COVID-19 claim share of 4 percent was similar to the national average. - - Approximately 75 percent of reported COVID-19 lost-time claims were from the healthcare sector, while that sector only accounts for about 9 percent of non-COVID-19 lost-time claims. - - In California, with its relatively broad presumptions, about one-half of COVID-19-insured employer claims were from the healthcare sector. - - The share of COVID-19 claims and losses was largest in the second and fourth quarters of AY2020. - - COVID-19 was not a significant loss driver for most industry segments. - - However, COVID-19 claims in the Healthcare sector accounted for nearly 50% of all lost-time claims and more than 20% of paid+caselosses. - - For most states, the largest share of COVID-19 claims has been in the Healthcare industry sector. - - Although COVID-19 claims have been a significant driver of overall claims for the Healthcare sector, COVID-19 claims represent a small share of claims for other industries. - - Healthcare with Overnight Care (which includes retirement homes and nursing homes) had the highest relative share of COVID-19 claims. - - Healthcare workers have had the highest share of indemnity-only claims (60%) and a relatively low share of medical-only claims (15%). - - Most hospitality-industry claims have been medical-only (71%). - - Average severities are relatively consistent among years. - - Severities for both COVID-19 and non-COVID-19 claims were relatively stable across years. - - On average, COVID-19 claims have closed faster than non-COVID-19 claims, primarily due to the higher prevalence of indemnity-only COVID-19 claims. This updated report confirms significant findings from the WCIRB 2020 report and includes additional insights on industry sector and accident-quarter metrics. Claim and loss activity varied across jurisdictions, impacting individual states and sectors differently and at varying times. Uncertainties remain about the long-term impact of COVID-19 ...

La Vonya Price suffered a stroke in 2003 that initially left her paralyzed. After years of treatment, she eventually regained the use of her body and relearned how to speak, stand, and walk, yet she did not fully recover. Price suffered some permanent paralysis, which limited her ability to walk and the use of her left foot. Throughout 2005 and 2006, Price had to use a walker and a wheelchair because of her limited mobility. By 2007, Price’s condition had improved, but she still struggled with grasping and holding items, although she could hold small items without them falling. Price first worked part-time for the Victor Valley Unified School District between August 2006 and September 2006 as a substitute para-educator for special needs students. She was not required to take or pass a physical examination for the position, and she did not tell the District she had a disability or any medical restrictions. After moving to another job elsewhere in 2013, but she returned to the District again in February 2018, when she was hired as a substitute Instructional Assistant for special education students. Price was assigned to work one-on-one with an autistic student, who would sometimes run away from teachers and aides, including Price. In July or August 2018, Price applied for a full-time position as an Instructional Assistant for special needs students. She received an offer for a full-time position that was contingent on passing a physical exam. When she failed the physical exam for not being "medically suitable for the position," the District rescinded the offer, terminated her as a substitute, and disqualified her from any future employment with the District. The part-time and full-time Instructional Assistant positions have the same duties and responsibilities. As a part-time Instructional Assistant, Price was assigned to a one-on-one position with a "runner," and she successfully performed that position before being offered the full-time position, even though she frequently had to run after students. Price sued the District for retaliation and various disability-related claims, but the trial court granted summary judgment in favor of the District. Price contended on appeal that the trial court erroneously granted summary judgment to the District because there are triable issues of fact concerning all of her claims. The Court of Appeal agreed as to her first claim for disability discrimination, but disagree as to the rest of her claims in the published case of Price v. Victor Valley Union High School Dist.- E076784 (November 2022). The District asserts the fact that Price failed her physical examination means that she was not qualified to perform the job. The Court of Appeal disagreed. The District reads Quinn v. City of Los Angeles (2000) 84 Cal.App.4th 472 to stand for the broad proposition that an employer may always impose physical requirements as a condition of employment and thus may always refuse to hire someone who does not meet those requirements. In Quinn the plaintiff-police officer was not qualified for the position because he failed a "sound localization test" due to a hearing impairment. "The ability to localize sound is particularly significant to police officers in split second, life-threatening situations when an officer cannot clearly see." The Quinn court held that the plaintiff’s termination was lawful because he "was never initially qualified for the position" as a matter of law. The court Quinn court "did not hold that employers have unfettered discretion to deny employment to anyone who fails any physical test, as the District suggests." Rather, the Quinn court recognized only the "fundamental principle" that employers may deny a position to an applicant who cannot safely perform the essential functions of the job due to a medical condition. Because the determination of essential job functions is a "highly fact-specific inquiry," it is usually an issue of fact for the jury to decide. The District argues Price could not perform the essential functions of a special education Instructional Assistant because of her medical restrictions. In particular, the District contends the job had physical demands that Price could not meet, namely, running after students. Even if true, Price has raised a triable issue of fact as to whether this was an essential function of a full-time Instructional Assistant ...

The District of Columbia Attorney General announced a lawsuit filed against the Washington Commanders, team owner Dan Snyder, the National Football League, and NFL Commissioner Roger Goodell for colluding to deceive District residents "Commanders’ core fans" about an investigation into toxic workplace culture and allegations of sexual assault to maintain a strong fanbase and increase profits. After years of public reporting and outcry in response to sexual assault and workplace abuse allegations against Washington Commanders executives, including team owner Dan Snyder, the Office of the Attorney General (OAG) took action and launched its own investigation in the fall of 2021 into the Commanders’ and the NFL’s response to allegations of sexual harassment. During the investigation, OAG interviewed numerous witnesses, including former Commanders employees who experienced and witnessed harassment. OAG also reviewed thousands of internal documents produced by the Commanders and the NFL, including emails. OAG’s investigation revealed that the Commanders, the NFL, and their executives, Snyder and Goodell, worked to prevent District residents from learning the truth and keep profiting. They publicly promised to fully cooperate with an independent investigation into the toxic work environment and sexual harassment within the Commanders organization and promised results the fans could trust. According to the announcement "behind the scenes, Snyder waged an interference campaign to cover up years of harassment. And the NFL let him do it, betraying fans’ trust by enabling Snyder to have a say at the end of the investigation into him and the Commanders." Specifically, the Attorney General alleges that after the NFL took over the investigation from the Commanders to publicly help ensure it was independent, the Commanders and the NFL entered into an agreement that the public knew nothing about. The agreement declared they had a joint interest in the investigation and gave Snyder and the Commanders the ability to block the public release of any information he chose, including the investigation’s ultimate findings. Throughout the investigation, Snyder actively sought to interfere with it, including intimidating and suppressing witnesses. Then, the NFL chose to shield the results of the investigation from the public. The Commanders are valued at $5.6 billion and the NFL is a roughly $18 billion industry. The Commanders and the NFL make money off of fans’ ticket sales, and purchases of merchandise and entertainment that is targeted to DC residents. The District’s Consumer Protection Procedures Act (CPPA) prohibits unfair and deceptive trade practices. OAG has broad authority under the CPPA to hold accountable any company or any head of a company if they mislead or lie to District consumers, regardless of where they are located. The Washington Commanders actively view District consumers as their fanbase, as evidenced by marketing campaigns to align the team with the city, including selling jerseys with the District of Columbia flag on it and other merchandise with "D.C." clearly visible. OAG’s lawsuit seeks to hold accountable the Commanders, Snyder, the NFL, and Goodell for violating the CPPA by lying to the public and District fans and withholding critical information. With this lawsuit, OAG is seeking financial penalties under the CPPA for every incident in which the Commanders, Snyder, the NFL, and Goodell lied to District residents dating back to July 2020. And a Court order forcing the NFL to release the findings from attorney Beth Wilkinson’s 10-month independent investigation into the Commanders’ workplace culture, to give the fans and the public the truth and information they expected ...

Walmart claims in Arkansas state court that 45 of the nations largest insurers wrongly refused to cover losses incurred as a result of defending itself against more than 2,400 opioid lawsuits. Jurisdiction in Arkansas is claimed because Walmart is headquartered in Bentonville, Arkansas, and the parties conduct business in Arkansas, including the Insurers selling insurance to Walmart in Benton County, Arkansas. This action involves nearly 200 insurance policies spanning two decades, and many of those policies are dozens or hundreds of pages long. According to the Complaint they failed, they allege that Walmart has paid millions of dollars to 45 Defendant Insurers - many of the nation’s leading insurance companies - for broad general liability policies designed to protect Walmart against potential risks to its business. They say those risks have now manifested themselves in the form of more than 2,400 Opioid Lawsuits that have been filed against Walmart. Those lawsuits seek damages because of, among other things, bodily injuries allegedly arising out of opioids or opioidcontaining products that Walmart sold, distributed, or dispensed. Walmart claims it has spent tens of millions of dollars defending itself against the Opioid Lawsuits and expects to spend much more in the future. Walmart timely notified the Insurers of each of the Opioid Lawsuits. But now they say "the Insurers have turned their backs, providing a litany of excuses why the policies supposedly do not cover the Opioid Lawsuits." "Those excuses are meritless, as Walmart has repeatedly explained to Insurers, yet they continue to refuse to live up to their obligations under the policies." And they go on to claim that "the underlying Opioid Lawsuits seek damages sufficient to exhaust all layers of coverage provided by Insurers’ Policies.". "Insurers have either reserved their rights to deny coverage, denied their duties to defend or indemnify, and/or otherwise failed to acknowledge their obligations to provide coverage for the Opioid Lawsuits on a series of baseless grounds." "For example, certain Insurers have asserted that these lawsuits are not brought "because of bodily injury," despite complaints and settlements expressly stating otherwise and making clear that the underlying plaintiffs’ alleged damages are because of alleged injury and death to hundreds of thousands of individuals as a result of opioid abuse and addiction." "Certain Insurers have also asserted that coverage for the Opioid Lawsuits is excluded because the damages at issue in them were "expected or intended," even though these lawsuits include numerous allegations of negligent or otherwise unintentional conduct or injuries, many of the settlements are expressly based on negligent conduct, not intentional harm, and Walmart has vehemently denied that it intended or expected to harm anyone." Many of the Policies are "primary" or first-level policies, meaning that they obligate the issuing Insurers to defend or to pay for Walmart’s defense and to indemnify Walmart either from the first dollar spent, or once a self-insured retention is satisfied. Those policies were issued by Defendants National Union, American Home, and the Insurance Company of the State of Pennsylvania. Other Policies are umbrella or excess-layer policies, which, among other things, obligate the issuing Insurers to defend or to pay for Walmart’s defense costs and/or to indemnify Walmart for settlement or judgment costs when those costs exceed specified retention amounts or amounts of coverage available under lower-layer Policies or when coverage is not available or not collectible from such lower-layer Policies. The umbrella and excess-layer Policies were issued by various Insurers ...

The Workers’ Compensation Insurance Rating Bureau of California (WCIRB) released the 2022 WCIRB Geo Study, which underscores regional differences in claim characteristics across California. The web-based interactive map allows you to quickly view key measures across regions. The study, related exhibits and mapping of nine-digit zip codes o the regions referenced in the study are available in the Research section of the WCIRB website. Key findings include: - - Even after controlling for regional differences in wages and industry mix, indemnity claim frequency is significantly higher in the Los Angeles (LA) Basin and significantly lower in the San Francisco Bay Area. - - During the pandemic, indemnity claim frequency increased significantly in Orange County relative to the rest of the state and decreased significantly in Ventura and Santa Monica/San Fernando Valley. - - The share of open indemnity claims has decreased substantially in all regions since 2013. The decreases have been larger in the LA Basin regions that had the highest initial open indemnity claim shares. - - The share of larger indemnity claims (those with incurred costs greater than $250,000) at third report level tends to be higher in regions that have lower indemnity frequency. Northern California regions, including the Bay Area and Peninsula/Silicon Valley, tend to have higher shares of larger indemnity claims. - - During the pandemic, the median injured worker’s average weekly wage increased significantly in all regions. The increases were largest in Fresno/Madera, San Gabriel Valley/Pasadena, Santa Monica/San Fernando Valley and Tulare/Inyo. The median wage in these regions has often been lower than the statewide average. - - The share of cumulative trauma claims as a percent of all claims increased for all regions during the pandemic. The increase was largest in San Bernardino/West Riverside and LA/Long Beach which also have high relative frequency of indemnity claims. It was also relatively high in the Bay area and Sonoma/Napa which saw decreases in the relative frequency of indemnity claims. - - Medical-legal costs are significantly higher in the LA Basin, Orange County and Santa Monica/San Fernando Valley regions than in the remainder of the state. - - Paid allocated loss adjustment expenses (ALAE) are significantly higher in Southern California regions. - - In 2020, nearly one in eight indemnity claims reported in California were due to COVID-19. Shares of COVID-19 claims were higher in Southern California. - - Average weekly wages for workers with COVID-19 claims were significantly higher than average weekly wages for workers with non-COVID-19 claims in all regions. The differences were greatest in the Ventura, San Bernardino/West Riverside and San Diego regions. The WCIRB will host a free webinar to discuss the 2022 WCIRB Geo Study. Click on the registration link to sign up. Please submit your questions while registering; time permitting, we will answer your questions during the webinar or follow up via email afterward. - Wednesday, December 7, 2022, 10:00 AM - 11:00 AM PT. WCIRB Presenters: Dave Bellusci, Executive Vice President and Chief Actuary; Laura Carstensen, Vice President, Actuarial Research; and Shane Steele, Research Actuary. For those unable to attend the live webinar, a recording will be posted in the Research section of the WCIRB website following the event ...

Andrew Glick claimed injury to his left knee, lumbar spine, neurological system, and "ophthalmology/vision/eye," while employed as a truck driver by Knight-Swift Transportation Holdings, Inc. when he was injured on November 26, 2018. Glick was struck by a motor vehicle while crossing the street. The vehicle was traveling at approximately 30 miles per hour at the time of impact, and he was thrown approximately 10 feet, landing on the ground on his left side. Glick was knocked unconscious, and was transported by ambulance to Riverside Community Hospital, where he was diagnosed as having sustained a fractured left tibia, left fibula, left femur, right scapula, right clavicle, right and left temporal bones, L1 vertebrae, L2 vertebrae, L3 vertebrae, L4 vertebrae, and a left "brain bleed." On June 9, 2020 the Qualified Medical Evaluator (QME) in Physical Medicine and Rehabilitation noted his "number one problem" was vision difficulty:" The report said that "He was told he has nerve damage behind the right eye, so if he drives or does activities requiring any kind of balance or proprioception, he closes the right eye and only uses the left." Mr Glick remained temporarily totally disabled. A QME in ophthalmology reported in August 2020 that he was "not yet permanent and stationary, and required a strabismus (eye muscle) surgery to address superior oblique palsy, because "[t]he function of the 4th nerve cannot be restored." After an Expedited Hearing on the issue of whether Mr. Glick was entitled to temporary disability continuing from the last date paid of approximately 11/24/20 and continuing, pursuant to the applicability of Labor Code § 4656 (c)(3)(F), the WCJ issued his F&A, finding that Glick sustained injury to the "ophthalmology/vision/eye," caused by a "high velocity impact," resulting in "temporary total disability for which defendant has paid 104 weeks and which said benefit is ongoing." The WCJ found defendant liable for ongoing temporary total disability pursuant to Labor Code section 4656(c)(3)(F). Reconsideration of this Award was denied in the panel decision of Glick v Knight-Swift Transportation Holdings, Inc - ADJ11799924 (November 2022). The WCJ filed his Report, observing that the statutory requirements were met because applicant sustained a high velocity impact to his person, which was the direct cause of both a concussion and a resulting eye injury. The employer contended that the "plain language or common meaning" of the term "high-velocity eye injuries," as set forth in Labor Code section 4656(c)(3)(F) refers to "at least some impact of the eye." And cites as authority Cruz v. Mercedes-Benz of San Francisco (2007) 72 Cal. Comp. Cases 1281 [2007 Cal. Wrk. Comp. LEXIS 247] (Appeals Bd. en banc), were the WCAB applied a "common sense and ordinary meaning" to the term "amputation," and that a similar analysis of section 4656(c)(2)(F) requires there be "some impact to the eye." Andrew Glick cites Glover v. ACCU Construction (June 15, 2009, ADJ665716 (BAK 0154393) [2009 Cal. Wrk. Comp. P.D. LEXIS 301] Glover was operating a mulching mower when he was struck by a metal fragment that entered his nostril, lacerating the nose and fracturing the eye socket before traveling through the brain and lodging in the back of the skull. In Glover the panel concluded "We are not persuaded that "eye" should be defined so narrowly, yet we need not delineate the outer limits of our definition at this time. We have examined applicant's medical records and find ample evidence of injury to and treatment of the right eye." Turning to the issues in the claim of Mr. Glick, the panel followed its reasoning in Glover and concluded "Here, the facts support a similar analysis." ...