Menu Close
Nicholas Casson was a firefighter for the City of Santa Ana for 27 years. He took a service retirement in 2012 and immediately began receiving pension payments through California Public Employees Retirement System (CalPERS) of approximately $7,200 per month. He immediately started a second career with the Orange County Fire Authority (OCFA) where he was eligible for a pension under respondent Orange County Employees Retirement System (OCERS). Importantly, he did not elect reciprocity between the two pensions, which would have allowed him to import his years of service under CalPERS to the OCERS pension. He started as a first-year firefighter for purposes of the OCERS pension and immediately began collecting pension payments from CalPERS. Five years into the new job, he suffered an on-the-job injury that permanently disabled him. He applied for and received a disability pension from OCERS, which, normally, would have paid out 50 percent of his salary for the remainder of his life. However, because he was receiving a CalPERS retirement, OCERS imposed a "disability offset" pursuant to Government Code section 31838.5, which is the statute at the center of this appeal. This resulted in a monthly benefit reduction from $4,222.81 to $1,123.87. After exhausting his administrative remedies, Casson filed a petition for a writ of mandate in the trial court. The court denied the petition, finding that the plain language of section 31838.5 required a disability offset. Casson appealed. The Court of Appeal reversed in the published case of Casson v. Orange County Employees Retirement System - G060950 (January 2023). This appeal arises from a claim for a service-connected disability retirement (i.e., retirement arising from an on-the-job injury) under a pension governed by the County Employees Retirement Law of 1937, Government Code section 31450 et seq. (CERL). The parties have presented a single issue on appeal: Does the term "disability allowance" in section 31838.5 include payments under a prior service pension in the absence of reciprocity? This is a pure statutory interpretation issue. The opinion first answered the question "what is reciprocity?" At the time of retiring from a qualifying job, the employee may elect to defer pension benefits and leave his or her contributions on deposit with the pension plan. (§ 31700.) If, within the applicable timeframes, the employee is employed in another government position with a qualifying pension plan, the employee may elect to link the two pensions in a system of reciprocity. (§ 31831.) The effect of that election is the employee does not receive pension benefits under the first plan until he or he or she retires from the second plan. The advantage to the employee is that he or she enters the second pension plan with the same amount of service credit as the first plan. Reciprocity is not automatic. An employee must affirmatively elect reciprocity. (§ 31831.) In this case Casson did not. Government Code section 31838.5 places certain limits on the amount of disability pay a person may receive if he or she has been the beneficiary of multiple CERL retirement plans. OCERS’ argument, which the trial court adopted, is relatively straightforward: section 31838.5, on its face, does not limit its application to reciprocal pensions. Indeed, the word reciprocal is nowhere mentioned in the statute. Casson takes the view that section 31838.5 only applies to reciprocal pensions. The court of appeal agreed with Casson and said "Casson did not elect reciprocity. He chose to treat the two pensions as separate. He forwent valuable benefits to do so. The compelling logic of treating the two pensions as one for disability purposes, therefore, simply does not apply. On the contrary, it would be fundamentally unfair to Casson to limit his disability allowance to the equivalent of a single pension when he did not elect the benefits of treating the two pensions as one." ...
Read More
/ 2023 News, Daily News
The U.S. Department of Health and Human Services (HHS), through the Centers for Medicare & Medicaid Services (CMS), finalized the policies for the Medicare Advantage Risk Adjustment Data Validation program. The announcement comes on the heels of a report from the Office of Inspector General (OIG) which found that Cigna-HealthSpring of Tennessee’s risk adjustment program payments led to almost $760,000 in overpayments in 2016 and 2017. This will be the CMS’s primary audit and oversight tool of Medicare Advantage program payments. Under this program, CMS hopes to identify improper risk adjustment payments made to Medicare Advantage Organizations (MAOs) in instances where medical diagnoses submitted for payment were not supported in the beneficiary’s medical record. CMS’ payments to Medicare Advantage Organizations are adjusted based on the health status of enrollees, as determined through medical diagnoses reported by MAOs. Studies and audits done separately by CMS and the HHS Office of Inspector General have shown that Medicare Advantage enrollees’ medical records do not always support the diagnoses reported by MAOs, which leads to billions of dollars in overpayments to plans and increased costs to the Medicare program as well as taxpayers. Despite this, no risk adjustment overpayments have been collected from MAOs since Payment Year 2007. This new rule aims to fix the flaws that have plagued the Medicare Advantage risk adjustment data validation program and that led to overpayment. The RADV final rule reflects CMS’s consideration of extensive public comments and robust stakeholder engagement after the release of the 2018 Notice of Proposed Rulemaking. The finalized policies will also allow CMS to continue to focus its audits on those MAOs identified as being at the highest risk for improper payments. The RADV final rule can be accessed at the Federal Register at https://www.federalregister.gov/public-inspection/current. "Protecting Medicare is one of my highest responsibilities as Secretary, and this commonsense rule is a critical accountability measure that strengthens the Medicare Advantage program. CMS has a responsibility to recover overpayments across all of its programs, and improper payments made to Medicare Advantage plans are no exception," said the HHS Secretary. "For years, federal watchdogs and outside experts have identified the Medicare Advantage program as one of the top management and performance challenges facing HHS, and today we are taking long overdue steps to conduct audits and recoup funds. These steps will make Medicare and the Medicare Advantage program stronger." However, there will be some pushback about this new rule. The Associated Press reports that insurers have been gearing up for a fight against the long-awaited final rule, with company leaders raising concerns about the accuracy of the audits. The move will raise insurance rates, warned Matt Eyles, the president of America’s Health Insurance Plans, the lobbying arm for health insurance companies. "Our view remains unchanged: This rule is unlawful and fatally flawed, and it should have been withdrawn instead of finalized," Eyles said. The Biden administration estimated Monday that it could collect as much as $4.7 billion from insurance companies with these newer and tougher penalties for submitting improper charges on the taxpayers’ tab for Medicare Advantage care ...
Read More
/ 2023 News, Daily News
The current Wheeler v Safeway Stores case has a lengthy history involving the settlement of two related wage and hour lawsuits following years of litigation, which began in 2001 and includes two prior appeals. Safeway has managed the operations of a distribution center in Tracy California. Prior to 2003, the distribution center was operated by a third party, Summit Logistics, Inc, for Safeway’s benefit. The plaintiffs in this and related cases are truck drivers who worked out of that distribution center, delivering goods to Safeway stores in Northern California and Nevada. The terms of the drivers’ employment were governed by successive collective bargaining agreements, which provided for meal periods and rest breaks and specified the manner in which wages were calculated. Safeway provided its drivers with a "driver trip summary - report of earnings" (ROE) and an "earnings statement" with each paycheck. Safeway instructed the drivers to compare their earning statement and ROE with their trip sheets to ensure that they were paid the correct amount, and to speak with the transportation manager or a payroll clerk if they believed their pay was incorrect. In two related cases, the plaintiffs in Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949 and the plaintiff in Bluford v. Safeway Inc. (2013) 216 Cal.App.4th 864, brought suit against their former/current employer (Summit/Safeway), alleging violations of statutory and regulatory laws related to meal and rest periods and itemized wage statements. In Cicairos the court of appeal reversed the trial court’s grant of summary judgment in favor of Summit. In May 2013, the court of appeal reversed the trial court’s order denying plaintiff’s motion for class certification in Bluford. In December 2014, the parties agreed to settle all of the claims alleged in both Cicairos and Bluford. In February 2015, the parties executed a written settlement agreement memorializing the terms of the settlement. Beginning on June 14, 2015, Safeway implemented certain changes to its rest break practices and wage statements. Nonetheless, in January 2016, Wheeler and others filed this current wage and hour class action complaint against Safeway, alleging violations of statutory and regulatory laws related to rest periods and itemized wage statements as well as a derivative claim under the unfair competition law. The allegations supporting these claims were similar to the allegations supporting the claims alleged in Cicairos and Bluford. In this action, the rest period claim is limited to Safeway’s conduct from March 10, 2015, to June 13, 2015--the three-month period from the preliminary approval of the Cicairos/Bluford settlement to the day before Safeway implemented changes to its rest break practices. The wage statement claim is limited to Safeway’s conduct after the preliminary approval of the settlement- - March 10, 2015, to the present. According to plaintiffs, Safeway’s wage statements continued to be inadequate after the settlement was approved. Specifically, plaintiffs allege that the wage statements were deficient because they failed to indicate the rate of pay associated with each task performed. In December 2018, the trial court granted plaintiffs’ motion for class certification, which, as relevant here, included certification of a subclass of "all current and former Safeway drivers not provided accurate itemized wage statements from March 10, 2015 to the present." In October 2020, the trial court granted summary adjudication in favor of Safeway on plaintiffs’ rest period claim. The court explained that, in December 2018, the Federal Motor Carrier Safety Administration determined that California’s meal and rest break rules were preempted under federal law and could not be applied to truck drivers. In mid-April 2021, in anticipation of trial in early May 2021, Safeway filed two motions in limine. Motion in Limine No. 1 sought to prevent plaintiffs from presenting any evidence or argument regarding wage statements issued to members of the Cicairos/Bluford settlement class on or before October 8, 2015 - the date the judgment incorporating the settlement agreement became final. Motion in Limine No. 2 sought to prevent plaintiffs from presenting any evidence or argument regarding wage statements issued on or after June 14, 2015. In support of this motion, Safeway argued that such evidence was irrelevant because the wage statements issued during this time period did not violate Labor Code section 226 as a matter of law, and that, in any event, plaintiffs could not establish injury as a matter of law. Rulings on these motions rulings effectively limited relief on the wage statement claim to current class members who were not members of the Cicairos/Bluford settlement class and were employed by Safeway during the three-month period from March 10, 2015, to June 14, 2015. Following the trial court’s in limine rulings, the parties agreed to settle the remaining claims. Thereafter, the matter was dismissed pursuant to stipulation. Judgment was entered in December 2021. Plaintiffs timely appealed challenging the in limine rulings. The court of appeal concluded that the trial court erred and therefore reversed in the unpublished case of Wheeler v Safeway Stores -C095601 (January 2023). Safeway argued, and the trial court apparently agreed, that section 226, subdivision (a) does not require an employer to explain the basis for how each piece-rate was determined. Rather, it only requires that wage statements include the applicable piece-rate and the number of piece-rate units earned. The court of appeal disagreed with this construction of the statute. It concluded "that when, as here, an employee is subject to a piece-rate compensation system, the employer must provide the employee a wage statement that clearly explains how their compensation was calculated, including the applicable piece-rate formula for each specific task performed and any other information necessary to calculate the employee’s compensation for that task. Without such information, the core purpose of section 226 - to assist an employee in determining whether he or she has been properly compensated - would not be served." ...
Read More
/ 2023 News, Daily News
A new study from the Workers Compensation Research Institute (WCRI) found that 7 percent of workers with COVID-19 claims received treatment for long COVID after the acute period of the infection. While long COVID prevalence was the highest among workers who were hospitalized during an acute stage of disease, even some workers with limited medical care early after the infection developed long COVID symptoms. "While most patients infected with COVID-19 recover quickly, some patients do not return to their usual state of health and experience a wide variety of recurring or new symptoms and complications months after the initial infection period," said John Ruser, CEO and president of WCRI. The study, Long COVID in the Workers’ Compensation System Early in the Pandemic, examined the prevalence of long COVID among COVID-19 workers’ compensation claims with infections that occurred in the first months of the pandemic. The study addresses the following questions: - - How often do workers with COVID-19 receive medical care beyond a short quarantine and/or recovery period? - - What is the prevalence of long COVID symptoms among workers with COVID-19? - - What are the industry and worker characteristics associated with long COVID? - - How do rates of long COVID vary across states? The analysis includes COVID-19 cases reported with a date of infection between March 1, 2020, and September 30, 2020. For each claim, it collected information on indemnity benefits and payments for medical care that occurred through March 31, 2021. Bogdan Savych authored this study ...
Read More
/ 2023 News, Daily News
Jennifer Bitner and Evelina Herrera were employed as licensed vocational nurses by defendant and respondent California Department of Corrections and Rehabilitation (CDCR). They filed a class action suit against CDCR alleging that (1) while assigned to duties that included one-on-one suicide monitoring, they were subjected to acts of sexual harassment by prison inmates and, (2) CDCR failed to prevent or remedy the situation in violation of the California Fair Employment and Housing Act (FEHA), Government Code section 12940 et seq. The trial court granted summary judgment in favor of CDCR on the ground that it was entitled to statutory immunity under Government Code section 844.6, which generally provides that "a public entity is not liable for . . . [a]n injury proximately caused by any prisoner." (§ 844.6, subd. (a).) The Court of Appeal affirmed the dismissal in the published case of Bitner v Dept of Corrections - E078038 (January 2023). Plaintiffs appeal, arguing that, as a matter of first impression, the court should interpret section 844.6 to include an exception for claims brought pursuant to FEHA. Plaintiffs also argue that, even if claims under FEHA are not exempt from the immunity granted in section 844.6, the evidence presented on summary judgment did not establish that their injuries were proximately caused’ by prisoners. The Court of Appeal disagreed with both of these arguments. To the extent plaintiffs argue that section 844.6 is ambiguous because FEHA contains express statutory provision imposing liability on public entities, any ambiguity is easily resolved in light of well-established cannons of construction. When the language of a statute is clear, courts need go no further. In this case the opinion concluded that "the plain meaning of the statute’s words is clear and unambiguous." When faced with conflicting statutes providing for governmental immunity and liability, the statute providing immunity will prevail in the absence of any clear indication of a contrary legislative intent. To the extent there is any doubt on this point, the California Supreme Court’s decision in Caldwell v. Montoya (1995) 10 Cal.4th 972 (Caldwell) is dispositive. In Caldwell, our Supreme Court considered and rejected the argument that FEHA claims should be exempt from the statutory immunity set forth in section 820.2, which provides public employees immunity for discretionary acts. Plaintiffs attempt to factually distinguish Caldwell by arguing that the case addresses immunity of public employees under a different statute. However, a similar argument was considered and rejected in Towery v. State of California (2017) 14 Cal.App.5th 226, 231-232 ...
Read More
/ 2023 News, Daily News
A federal jury convicted 58 year old David Jess Miller, who lived in Santa Ana, and his company, Minnesota Independent Cooperative ("MIC"), of a wide array of charges relating to the unlicensed and fraudulent distribution of prescription drugs. The verdicts were handed down after a two-week trial before the Hon. Charles R. Breyer, Senior U.S. District Judge.The trial was the result of indictments filed in two separate districts - the Northern District of California and the Southern District of Ohio. The convictions included charges handed down in a second superseding indictment by a grand jury in the Northern District of California on February 11, 2016, and by a separate indictment handed down on May 6, 2015, in the Southern District of Ohio. Both indictments involved additional defendants and charges that were not presented at the trial. The evidence at trial established that Miller, was at the center of a vast racketeering enterprise responsible for the fraudulent distribution of hundreds of millions of dollars’ worth of diverted prescription drugs, including instances in which Miller and his co-conspirators distributed tampered medication that posed a health risk to consumers. The scheme targeted brand-name prescription drugs designed to treat HIV, hepatitis C, mental disorders, and various other serious conditions. Miller and MIC lied to their customers about the nature and sources of the prescription drugs being sold, falsely claiming that the drugs had been maintained in the safe, federally and state-regulated supply chain. The evidence at trial established that Miller and his company agreed with many others, including Mihran Stepanyan, 37, and Artur Stepanyan, 45, to conduct the affairs of their wide-ranging and long-lasting criminal enterprise. The evidence established that the enterprise, operating primarily out of Southern California and Minnesota, was responsible for distributing diverted prescription drugs to unsuspecting pharmacies throughout the county. In finding Miller guilty, the jury concluded that he played a role in promoting the racketeering conspiracy. For example, as the owner and operator of MIC between 2007 and 2015, Miller bought approximately $157 million of diverted prescription drugs from codefendants Mihran Stepanyan and Artur Stepanayan. Miller and MIC also knew that the Stepanyans were not licensed to sell prescription drugs and that the Stepanyans procured their drugs from street suppliers. Miller and MIC nevertheless purchased the diverted drugs from the Stepanyans and lied to their customers about the sources and nature of those drugs. Further, the jury concluded Miller engaged in a money laundering conspiracy. The evidence established that Miller and others laundered hundreds of millions of dollars between approximately 2007 and 2015 to promote their criminal activities and to conceal the nature of their scheme. For example, to hide the fact Miller was paying the Stepanyans for the illegally sourced drugs they were distributing, Miller made payments to the Stepanyans’ company GC National Wholesale through companies in Puerto Rico he controlled. As to another supplier, Miller authorized payments to accounts held in the names of various front companies at banks in multiple countries. In this way, Miller and his co-conspirators sought to obscure the illicit sources of MIC drugs and to conceal the true identities of the suppliers. In sum, at the conclusion of the trial, Miller was convicted of one count of racketeering conspiracy, in violation of 18 U.S.C. § 1962(d); one count of conspiracy to commit mail, wire, and bank fraud, in violation of 18 U.S.C. § 1349; one count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h); ten counts of mail fraud, in violation of 18 U.S.C. § 1341; and one count of conspiracy to engage in the unlicensed wholesale distribution of drugs and making false statement to the FDA, in violation of 21 U.S.C. §§ 331(t), 333(b)(1)(D), 353(e)(2)(A), and 18 U.S.C. § 371. Miller remains out of custody pending sentencing. Miller faces a maximum statutory term of life in prison; however, any sentence will be imposed by the court only after consideration of the U.S. Sentencing Guidelines and the federal statute governing the imposition of a sentence, 18 U.S.C. § 3553. The Stepanyans and 38 other defendants have pleaded guilty to their respective roles in the conspiracies. "The illegal conduct of David Miller was reprehensible," said FBI Special Agent In Charge Robert Tripp. "He and his co-conspirators undermined safeguards designed to protect the public, reintroduced diverted prescription drugs into the supply chain, and compromised patient safety for personal gain." The prosecution is the result of an investigation by the FBI, the IRS, the FDA, and USPIS. The United States Attorney’s Office notes the extraordinary contributions and commitment of IRS-CI Special Agent Bryan Wong in this case ...
Read More
/ 2023 News, Daily News
Senior United States district judge of the United States District Court for the Eastern District of California, William B. Shubb, granted a request for a preliminary injunction, made by a group of California physicians, against enforcement of AB 2098 - a controversial law that placed the severe restrictions on physicians against providing "misinformation" about COVID-19 to their patients. It was signed into law on September 30, 2022, and codified at Cal. Bus. & Prof. Code § 2270 and was effective January 1, 2023. This law empowers the Medical Board of California and the Osteopathic Medical Board of California to discipline physicians who "disseminate" information about Covid-19 that departs from the "contemporary scientific consensus." The statute provides that "[i]t shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines." Plaintiffs are five physicians, licensed to treat patients in the state of California. Last November they filed a lawsuit in the Federal District Court in the Eastern District of California alleging that AB 2098 violates their First Amendment rights to free speech and expression, their patients’ First Amendment rights to receive information from them, and their Fourteenth Amendment rights to due process of law. Section 1 of AB 2098 lays out the ostensible justification for the bill including that the spread of misinformation and disinformation about Covid-19 vaccines has weakened public confidence4 and placed lives at serious risk; and that "major news outlets" have reported that health care professionals are "some of the most dangerous propagators of inaccurate information regarding the COVID-19 vaccines." Section 2 deems it "unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines" "Misinformation"is defined as "false information that is contradicted by contemporary scientific consensus contrary to the standard of care. " However Judge Shubb pointed out that the "Act neither defines nor provides guidance for determining the meaning of 'contemporary scientific consensus.' " AB 2098’s sponsor, the California Medical Association, argued that this law is needed because of physicians who "call into question public health efforts such as masking and vaccinations." In his Order Granting a Preliminary Injunction Judge Shubb pointed out that the Supreme Court of the United States has stated that "the Constitution protects the right to receive information and ideas," which "is an inherent corollary of the rights of free speech and press that are explicitly guaranteed by the Constitution." Having determined that plaintiffs have standing to bring this action, the court considered whether they have demonstrated a likelihood of success on the merits, a requirement for issuing a preliminary injunction. Plaintiffs contend that the law’s definition of "misinformation" is unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment. A statute is unconstitutionally vague when it either "fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement." The operative question under the fair notice theory is whether a reasonable person would know what is prohibited by the law. Vague statutes are particularly objectionable when they "involve sensitive areas of First Amendment freedoms" because "they operate to inhibit the exercise of those freedoms." Judge Shubb pointed out that the "Defendants provide no evidence that "scientific consensus" has any established technical meaning; the expert declarations they offer are notably silent on the topic." In Forbes v. Napolitano, 236 F.3d 1009, 1010 (9th Cir. 2000), amended, 260 F.3d 1159 (9th Cir. 2001) the Ninth Circuit considered a vagueness challenge to a law prohibiting medical "experimentation" or "investigation" involving fetal tissue from abortions unless necessary to perform a "routine" pathological examination. In that case the terms "investigation" and "routine" were problematic because multiple common definitions could apply in the medical community, which "[lacked] any official standards to help" define the terms. Id. at 1012. The Ninth Circuit reasoned that because the contested terms lacked sufficiently clear, commonly understood definitions in the medical community, and the statute failed to provide narrowing definitions, the statute was unconstitutionally vague. The lack of definitional clarity failed both to give doctors fair notice of what conduct was prohibited, and to give courts and law enforcement sufficient standards by which to narrow the terms’ meanings. Judge Shubb then wrote that like the contested terms in Forbes, "contemporary scientific consensus" lacks an established meaning within the medical community, and defendants do not propose one. At oral argument, defense counsel declined to explain what specific conduct the law may prohibit, arguing that application of the law is highly fact-specific. He went on to say that Courts have based their understanding of scientific consensus on a wide range of sources, including U.S. professional organizations, international professional organizations, state and federal courts, U.S. scientific studies, international scientific studies, various federal agencies, and the state of California. And because the term "scientific consensus" is so ill-defined, physician plaintiffs are unable to determine if their intended conduct contradicts the scientific consensus, and accordingly "what is prohibited by the law." Because plaintiffs have "established a likelihood of success on the grounds of their Fourteenth Amendment vagueness challenges," the court did not address the merits of their First Amendment arguments ...
Read More
/ 2023 News, Daily News
Agile Occupational Medicine announced that it had completed its merger with Pinnacle HealthCare. The combined practices provide 14 clinics throughout California and Yuma, Arizona, creating the fourth-largest occupational medical group in California. Pinnacle Healthcare was founded in 1999 with the goal of providing high-quality medical care for non life-threatening situations, as well as occupational medicine options and urgent care. According to its website "Hundreds of employers in Salinas, CA, Monterey, San Benito, Santa Cruz, and Merced counties choose Pinnacle Healthcare to be their sole provider in treating and managing employee and workplace health needs." Agile currently has fourteen clinics that it says is strategically located to achieve its goal of serving a majority of employers throughout California. Agile focuses on forming partnerships with local businesses to ensure that the medical needs of local employees are addressed. From DOT physicals and drug screenings to workplace injury treatment, Agile offers a wide range of occupational health programs that help employers maintain a healthy and safe workforce while providing cost-effective health care for companies and employees. After this merger, the two combined companies say they will be the "fourth-largest occupational medical group in California." The Agile Founder and CEO said "Agile and Pinnacle share a common vision of delivering the highest quality care and support to injured workers and employers. Coming together under a single company will allow us to partner in that effort and provide better services to a larger audience throughout California and southwest Arizona. Our teams have worked together on strategic initiatives in the past, and through those processes, have developed a shared vision for improving medical care in the workers’ compensation market to support employment-related health services better." "Joining Agile is a big win for Pinnacle. We have built a quality clinic group over the past 20 years, and Agile brings the funding and enterprise platforms that allow us to expand significantly going forward," said Ernesto Alvero, PA, former CEO of Pinnacle who will serve as the Senior Vice President of Clinic Operations for Agile. "We see this as two great companies coming together to form greater value than the sum of the parts. It’s a real win for both organizations and our customers." ...
Read More
/ 2023 News, Daily News
The U.S. Occupational Safety and Health Administration (OSHA) announced another annual inflation based increase in the civil monetary penalties for violations of federal Occupational Safety and Health standards and regulations. The new penalties will be nearly 10% higher than the previous penalty amounts. On November 2, 2015, the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 was enacted, which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 as previously amended by the 1996 Debt Collection Improvement Act to improve the effectiveness of civil monetary penalties and maintain their deterrent effect. The OSHA cost-of-living adjustment multiplier for 2023, based on the Consumer Price Index for All Urban Consumers for October 2022 (not seasonally adjusted), is 1.07745. To compute the 2023 annual adjustment, the Department multiplied the most recent penalty amount for each applicable penalty by the multiplier, 1.07745, and rounded to the nearest dollar. The adjustment factor of 1.07745 is consistent across the minimum and maximum penalties set forth in the Occupational Safety and Health Act and the FOM. The Inflation Adjustment Act required agencies to: (1) adjust the level of civil monetary penalties with an initial "catch-up" adjustment through an interim final rule and (2) make subsequent annual adjustments for inflation, no later than January 15 of each year. Using this formula, some examples of the new current maximum penalties for this year are as follows: - - Serious and Other-Than-Serious Posting Requirements maximum penalty is $15,625 per violation - - Failure to Abate violation maximum is $15,625 per day beyond the abatement date - - Willful or Repeated violation is $156,259 per violation States that operate their own Occupational Safety and Health Plans are required to adopt maximum penalty levels that are at least as effective as Federal OSHA's. State Plans are not required to impose monetary penalties on state and local government employers. Cal/OSHA penalties are specified in section 336 of its regulations. And their are some costly new changes to the penalty provisions of Cal/OSHA authority. On Sept. 28, 2021, California Gov. Gavin Newsom signed into law Senate Bill 606 (SB 606), which, among other things, created two new categories of Cal/OSHA violations: "egregious" and "enterprise-wide. The new categories of violations carry significant monetary penalties against employers. Under this new law, Section 6317.8 of the California Labor Code provides that Cal/OSHA "shall issue a citation to that employer for each egregious violation, and each instance of an employee exposed to that violation shall be considered a separate violation for purposes of the issuance of fines and penalties." Employers face up to $134,334 per egregious and enterprise-wide violation. So if this maximum penalty (increased by the COLA) is issued for "each instance of an employee exposed" the total penalty could theoretically result in hundreds of millions of dollars. In the definition of "egregious" violation in Labor Code 6317.8 lists 7 criteria for this determination, and any "one or more" of them can be grounds for a finding of an egregious violation. One example is "persistently high rates of worker injuries or illnesses." Theoretically, industries that are dangerous by the every nature of the work will have "persistently high rates of worker injuries or illnesses." And a COLA is now required annually to penalties under this new Cal/OSHA law. Labor Code 6429 (a)(2) provides that "Commencing on January 1, 2018, and each January 1 thereafter, the penalty amounts specified in this section shall be increased based on the percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U), not seasonally adjusted, for the month of October immediately preceding the date of the adjustment, as compared to the prior year’s October CPI-U." Thus, as employers enter 2023, OSHA penalties and Cal/OSHA penalties increase based upon CPI formulas. And then since each egregious and enterprise-wide violation in California applies the maximum penalty to "each instance of an employee exposed," 2023 brings in higher OSHA and much higher Cal/OSHA penalties ...
Read More
/ 2023 News, Daily News
Cal/OSHA is reminding employers in California to post their 2022 annual summary of work-related injuries and illnesses, including those related to COVID-19, by February 1, 2023. The Form 300A summary must be posted each year from February 1 through April 30. The annual summary must be placed in a visible and easily accessible area at each worksite. This helps ensure workers are aware of work-related injuries and illnesses that occurred the previous year. Employers are required to complete and post Form 300A even if no workplace injuries occurred. Instructions and form templates are available for download from Cal/OSHA’s Record Keeping Overview. The overview gives instructions on completing both the log (Form 300) and annual summary (Form 300A) of work-related injuries and illnesses. Current and former employees and their representatives are entitled to a copy of the summary or the log upon request. Many employers in California must also comply with electronic submission of workplace injury and illness records requirements by March 2 each year. Cal/OSHA has posted details on which employers are required to submit the electronic reports as well as other information online. To be recordable, an illness must be work-related and result in one of the following: - - Death - - Days away from work - - Restricted work or transfer to another job - - Medical treatment beyond first aid - - Loss of consciousness - - A significant injury or illness diagnosed by a physician or other licensed health care professional. Employers that are required to record work-related fatalities, injuries and illnesses must record a work-related COVID-19 fatality or illness like any other occupational illness. If a work-related COVID-19 case meets one of these criteria, then covered employers in California must record the case on their 300, 300A and 301 or equivalent forms. The definitions and requirements for recordable work-related fatalities, injuries and illnesses are outlined in the California Code of Regulations, Title 8, sections 14300 through 14300.48. Cal/OSHA helps protect workers from health and safety hazards on the job in almost every workplace in California. Employers who have questions or need assistance with workplace health and safety programs can call Cal/OSHA’s Consultation Services Branch at 800-963-9424 or their local Cal/OSHA Consultation Office or email InfoCons@dir.ca.gov. Complaints about workplace safety and health hazards can be filed confidentially with Cal/OSHA district offices. Workers who have questions about workplace hazards and protections can call 833-579-0927 to speak with a Cal/OSHA representative during normal business hours ...
Read More
/ 2023 News, Daily News
The San Francisco Mayor approved a new city ordinance to require private employers to pay employees who are military reservists and are called for military duty the difference between their military salary and their salary as employees, for up to 30 days in a calendar year, and to create procedures for implementation and enforcement of this requirement. The San Francisco Board of Supervisors passed the ordinance in December 2022, and it will go into on February 19, 2023. Under this Act an "Employee" means any employee of any Employer who works within the geographic boundaries of San Francisco, including but not limited to part-time and temporary employees, and who is a member of the reserve corps of the United States Armed Forces, National Guard, or other uniformed service organization of the United States. And "Employer" means any person, as defined in Section 18 of the California Labor Code, including corporate officers or executives, who directly or indirectly or through an agent or any other person, including through the services of a temporary services or staffing agency or similar entity, employs or exercises control over the wages, hours, or working conditions of an employee and who regularly employs 100 or more employees, regardless of location. "Employer" shall not include the City or any other governmental entity. And "Military Duty" means active military service in response to the September 11, 2001 terrorist attacks, international terrorism, the conflict in Iraq, or related extraordinary circumstances, or military service to provide medical or logistical support to federal, state, or local government responses to the COVID-19 pandemic, natural disasters, or engagement in military duty ordered for the purposes of military training, drills, encampment, naval cruises, special exercises, Emergency State Active Duty, or like activity. However the law shall not apply to Employees covered by a bona fide collective bargaining agreement to the extent that such requirements are expressly waived in the collective bargaining agreement in clear and unambiguous terms. If the Employee, having received Supplemental Compensation under this law and being fit for employment in their previous position upon release from Military Duty, does not return to their position with the Employer within 60 days of release from Military Duty, the compensation may, at the Employer’s option, be treated as a loan payable with interest in the manner specified in the Act. If after an administrative hearing it is found that any Supplemental Compensation was unlawfully withheld, the dollar amount of Supplemental Compensation withheld from the Employee multiplied by three, or $250, whichever amount is greater, shall be included in the administrative penalty paid to the Employee. And quite similar to the California Public Attorney General Act (PAGA) the City, or any person or entity acting on behalf of the public as provided for under applicable State law, may bring a civil action in a court of competent jurisdiction against the Employer or other person violating this new law. And any person or entity enforcing this Act on behalf of the public as provided for under applicable State law shall, upon prevailing, be entitled only to equitable, injunctive or restitutionary relief, and reasonable attorneys’ fees and costs. The Background and Findings used to justify passage of the Act claims that as of 2022, there were over 600,000 United States military reserve and National Guard personnel serving. Military reserve and National Guard personnel face many challenges when they serve dually as civilian workers and in the uniformed services, including employment discrimination, income insecurity, financial stress, service-related injuries, mental stress, and suicide. The United States has made efforts to protect the income and employment security of such personnel. Under the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. Ch. 43, military reserve and National Guard personnel are protected from employment discrimination on the basis of their service and are guaranteed civilian reemployment rights following military service. State and local laws also protect the income and employment security of military reserve and National Guard personnel. Under California Government Code Sections 19775 and 19775.1, state employees granted military leave are eligible for paid leave for the first 30 calendar days of active duty served during the absence. California Military and Veterans Code Sections 395.01, 395.02, and 395.03 grant other public employees up to 30 calendar days of pay while on military leave ...
Read More
/ 2023 News, Daily News
The City of San Francisco secured a $5.25 million settlement from Instacart after an Office of Labor Standards Enforcement (OLSE) investigation into the company’s compliance with two San Francisco labor laws. The vast majority of the settlement, $5.1 million, will go directly to about 5000 Instacart workers who provided services and made deliveries in San Francisco between 2017 and 2020, and $150,000 will cover settlement administration and OLSE’s enforcement costs. "This is the City’s second major settlement directly benefiting delivery app workers in San Francisco," said City Attorney David Chiu. "We hope this sends a strong message that the City aggressively investigates compliance with our labor laws and works hard to ensure workers are treated fairly. I am grateful to the OLSE staff and our attorneys who made this win possible." After widespread reports of app-based tech companies misclassifying workers, OLSE initiated an investigation into Instacart’s compliance with San Francisco’s Health Care Security Ordinance (HCSO) and Paid Sick Leave Ordinance (PSLO). The HCSO requires employers with 20 or more workers to spend a minimum amount on health care benefits per covered employee. The PSLO requires employers to provide sick leave to all employees in San Francisco. OLSE has the authority to enforce both the HCSO and PSLO. Over 5,000 Instacart workers who made deliveries and provided services in San Francisco between 2017 and 2020 will directly benefit from the settlement between the parties. Many of the workers covered by the settlement are essential workers who were making deliveries in 2020 at the height of the pandemic. Within 45 days of the signed agreement, Instacart is required to engage a settlement administrator and send settlement funds to the administrator to be distributed to workers. The announcement represents the second largest settlement benefitting workers in OLSE’s twenty-year history. Following a similar investigation, OLSE secured a $5.325 million settlement for DoorDash workers in 2021. San Francisco ordinances require all employers with 20 or more workers to "spend a minimum amount" on health care benefits for each employee, the city said in a statement. The city also requires all employers to offer paid sick leave. Instacart, in a statement to Winsight Grocery Business said it was pleased to have reached a settlement with the city. It also said "Instacart has always properly classified shoppers as independent contractors, giving them the ability to set their own schedule and earn on their own terms," the company said. "We remain committed to continuing to serve customers across San Francisco while also protecting access to the flexible earnings opportunities Instacart shoppers consistently say they want." The San Francisco settlement comes just three months after Instacart was ordered to pay $45.6 million to settle a labor-related case filed by the city of San Diego in 2019. That judgment covered about 308,000 people who worked for the tech company from September 2015 through December 2020 who were classified as independent contractors ...
Read More
/ 2023 News, Daily News
Encino Hospital engaged SRCC Associates to manage and operate Serenity Recovery Center (Serenity) at the hospital, under the hospital’s direction and control, to provide acute (i.e., short-term) drug and alcohol detoxification services. In 2016 Mary Lynn Rapier filed this qui tam action on behalf of the People of the State of California, alleging violations of the Insurance Fraud Prevention Act (IFPA) against Encino Hospital and other defendants. California Department of Insurance (CDI) elected to intervene and take over prosecution of the action. CDI filed the operative second amended complaint, which was eventually pared down to allege a cause of action for "illegal patient steering," in violation of subdivision (a) of Insurance Code section 1871.7, and a cause of action for "submission of false claims" in violation of subdivision (b) of that section. CDI alleged the causes of action against six defendants: Encino Hospital, Prime Healthcare Services, Inc., and Prime Healthcare Foundation, Inc. and SRCC Associates, its principal, Jonathan Lasko, and JNL Management, LLC (collectively. The CDI alleged that although Encino Hospital was properly licensed as a general acute care hospital, it could not legally operate a medical detoxification facility because it had no separate license as a chemical dependency recovery hospital. The CDI alleged that in billing for detox services for which they had no proper license, defendants knowingly submitted at least 1,858 fraudulent insurance claims, requiring an award of damages of at least $57,678,436 before trebling. And that that Serenity employed a referring party to funnel patients to its program in exchange for Serenity discharging acute-care patients to chronic-care facilities affiliated with the referring party. After a bench trial, the trial court found that CDI’s fraud theory was unsupported by any evidence of a false statement or omission, specific intent to defraud, materiality, or reliance. On the contrary, the undisputed evidence was that all defendants intended to follow the law, consulted attorneys when unsure about what to do, and relied on a lack of information from any agency, including CDI, that their practices were improper, even after the allegations in this case were made public. The court found that CDI’s claims, "including the CDI itself, constituted a vast overreach as to parties, theories, and scope. Thus the trial court found in favor of the defendants, and the Court of Appeal Affirmed in the published case of State of Cal. v. Encino Hospital Medical Center - B303196 (January 2023) On appeal, CDI contend the trial court erred by interpreting the IFPA as applying only to fraudulent claims as opposed to simply false claims, and by interpreting subdivision (a) of section 1871.1 as requiring a cash exchange as opposed to an exchange of any item or service of value. CDI further contends the trial court erred in denying it a jury trial. The IFPA, originally enacted in 1993, consists of eight articles concerning insurance fraud. The Court of Appeal reviewed amendments to the Act since then, and the legislative intent. Although the former law allowed actions arising from any workers’ compensation claim even if the claim was not fraudulent, according to the Senate Committee on Criminal Procedure, section 1871.7 as amended in 1995 required proof that a claim was illegal and fraudulent. Section 1871.7 was amended again in 1999, by adding the last sentence to subdivision (b), which provided for the first time that penalties are to be assessed for each fraudulent claim presented to an insurer, instead of for each violation of subdivision (a). Here, CDI alleged that Encino Hospital misrepresented to insurers that it was properly licensed to provide detox services when it was not. The trial court found no evidence suggesting that defendants presented a false claim to any insurer. The Court of Appeal agreed and said "no authority of which we are aware or to which we have been directed obligates Encino Hospital to hold any license other than its license as a general acute care hospital." Because Encino Hospital needed no separate license or approval, and no evidence showed it concealed any provider, the CDI’s cause of action for false claims fails for lack of a predicate. The Court concluded by saying "We therefore need not decide whether the IFPA requires a showing of scienter or materiality." CDI demanded a jury trial but failed to deposit jury fees. The trial court therefore granted Prime’s motion to strike the demand for a jury trial, finding that jury fees were not timely paid, and in any event CDI’s causes of action were not subject to jury trial. On this issue the Court of Appeal concluded that on the merits, CDI was not entitled to a jury trial on its claims. "The IFPA affords no explicit right to a jury trial on causes of action it creates." ...
Read More
/ 2023 News, Daily News
The Division of Workers’ Compensation (DWC) has issued a notice of a public hearing for proposed amendments to the Qualified Medical Evaluator (QME) Regulations. The proposed changes are necessary to bring existing regulations into compliance with amendments to the Labor Code, and to clarify the Administrative Director’s authority with respect to the process related to appointment and reappointment of QMEs, which is granted by relevant statutory authority. The proposed amendments include: - - Clarification with regard to definitions to conform to changes made by Senate Bill 863, recent changes made to the Medical Legal Fee Schedule, and the addition of electronic service of documents - - Provisions prohibiting providing false information on the application or reapplication for appointment - - Provisions to conform amended regulations with proper gender pronouns - - Revision of the amount of hours necessary for initial qualification of chiropractors as QMEs - - Revision of continuing education requirements including hourly requirements and the addition of anti-bias training for QMEs - - Provisions that require a QME to be in compliance with all Administrative Director’s regulations in order to be reappointed as a QME. There is also a new regulation that provides a specific implementation of existing discretionary authority of the Administrative Director pursuant to Labor Code section 139.2 - - Clarification of the use of probation as a disciplinary sanction and allow the Administrative Director to designate hearing officers for adjudication of disputes regarding appointment and reappointment applications - - Clerical changes to the regulation on QME unavailability - - Provisions allowing QME reappointment hearings to be heard by other tribunals in addition to the Office of Administrative Hearings - - Regulations that are consolidated into new subdivisions are repealed - - Repeal of regulations related to administration of disputes regarding the Supplemental Job Displacement Benefit. The March 13, 2023 public hearing on the proposed regulations has been scheduled at 10 a.m. in the auditorium of the Elihu Harris Building, 1515 Clay Street, Oakland, CA 94612. Members of the public may also submit written comments on the regulations until 11:59 p.m. that day. The proposed amendments to the QME regulations will be implemented under the regular rulemaking procedures of the Administrative Procedure Act. That process will begin with a 45-day public comment period. DWC will consider all public comments and, following the public hearing, may modify the proposed regulations for consideration during an additional 15-day public comment period. The notice of rulemaking, text of the regulations, and the initial statement of reasons can be found on the DWC rulemaking web page ...
Read More
/ 2023 News, Daily News
Sedgwick and the Disability Management Employer Coalition (DMEC), announced the release of "Long COVID: Assessing and Managing Workforce Impact." This first-of-its-kind white paper is the product of months of information gathering and analysis by leading disability, clinical, research, insurance, government, and other workplace experts. It also includes the results of a 2022 DMEC Pulse Survey on current employer practices to accommodate and assist employees with long COVID. DMEC, the Disability Management Employer Coalition is a non-profit organization that provides educational resources to employers in the areas of disability, absence, health, and productivity. The primary goal of DMEC is to assist employers in developing cost-saving programs, encouraging responsive market products, and returning employees to productive employment. The two organizations convened a group of the nation’s employers, researchers, clinicians, and others to develop a pathway forward. The mission of the long COVID think tank was to share answers to difficult questions and recommend effective solutions and strategies to help employees with long COVID remain on the job, return to work in an effective and productive capacity, or access leave if they are unable to work.The think tank’s work encompassed: - - Exploring the current and future problems long COVID presents to employers and employees - - Developing a consensus definition for long COVID to guide employers’ actions - - Identifying long COVID’s symptoms and phases (to support benefit design strategies) - - Summarizing the most credible research on the prevalence and impact of long COVID - - Assessing stay-at-work (SAW) and return-to-work (RTW) challenges - - Highlighting emerging best practices and steps for employers and absence management professionals to consider "This is the first comprehensive examination of how organizations are accommodating employees with long COVID," said Bryon Bass, senior vice president, workforce absence and disability practice leader at Sedgwick. "The white paper outlines what employers can do to improve results for employees and their organizations and how to better prepare for viruses, mental and behavioral health challenges, and other developments that require effective employee accommodations." COVID-19 has claimed the lives of millions of people, disrupted economic activity, and imposed large financial costs on governments, employers, and other organizations. While the COVID-19 pandemic may be over, the endemic phase has just begun. This includes the millions of employees who have or will have long COVID, the difficult-to-diagnose and often debilitating illness that induces long-term symptoms and impedes work and productivity. Long COVID - the term used to describe the disease when symptoms last beyond five weeks - has affected millions of U.S. workers. Many have experienced significant, long-term health-related changes that affect their jobs, families, and futures. And that, in turn, impacts a wide range of U.S. employers and industries. "Long COVID has been described as ‘our next national health disaster’ and the ‘pandemic after the pandemic," reports the Kaiser Family Foundation. While estimates vary on how many people in the U.S. suffer from long COVID, the General Accounting Office (GAO) puts the number at 23 million. The conclusions of experts form Walmart, Johns Hopkins University, The Hartford, and other leading organizations convened by DMEC and Sedgwick are sobering. Long COVID is costly to employers and employees. For example, Nomi Health who recently analyzed 20 million claims filed for COVID-19, long COVID, and diabetes found a 421% increase in in-patient hospital spending within the first six months following an initial COVID-19 diagnosis. There is also no question that long COVID cuts deeply into employee productivity. The Centers for Disease Control and Prevention (CDC) found that one in four adults with long COVID reported significant limitations on day-to-day activities. Employers’ efforts to accommodate employees with long COVID have revealed significant shortcomings in programs and processes used to accommodate all manner of disability and impaired work situations, including those caused by influenza and other viruses and mental and behavioral health challenges. According to the latest DMEC Pulse Survey, only 10% of respondents have an existing program to assist employees with long COVID. Most employers lack formal, best practice stay-at-work and return-to-work programs. Long COVID: Assessing and Managing Workforce Impact includes lists of accommodations employers should consider as they help those with long COVID return to work and stay at work. The white paper recommends flexibility, creativity, and the need to educate managers about long COVID symptoms and accommodations ...
Read More
/ 2023 News, Daily News
The California Insurance Commissioner announced appointments of April Savoy, Patrick Wong, and Peter Guastamachio as members on the California Insurance Guarantee Association (CIGA) Board of Governors. The CIGA Board of Governors oversees the guarantee association’s general operations and management in order to protect policyholders in the event of an insurance company insolvency. Established in 1969 by the Governor and California State Legislature, CIGA comprises all insurance companies admitted to sell homeowners, workers’ compensation, automobile, and other specified property and casualty lines of insurance in California. April Savoy is Senior Vice President and Deputy General Counsel at Allstate Insurance Company, where she serves as secretary for the Allstate Health, Benefits, and Financial Services subsidiary boards and is a working group member of the Environmental, Social and Governance Steering Committee. She leads the Insurance Law and Legal Operations Division for the Allstate Enterprise and has over 25 years of experience in enterprise risk, legal, regulatory compliance, claims coverage, and corporate governance. Some of her previous board service experience includes serving on the Executive and Finance Committees, and Board Secretary of the Siloam Family Health Center, and membership on the Resource Development Committee of United Way of Central Ohio. Savoy has been appointed to the CIGA Board of Governors in the member insurer representative seat, with a term ending on December 31, 2025. Patrick Wong is Senior Vice President, General Counsel, and Secretary for CSE Insurance Group. Wong has over 20 years of experience in insurance and is a member of CSE’s Executive Leadership Team leading the Corporate Department, which includes Legal, Governance, Compliance, Quality Assurance, and Internal Audit. He serves as the representative for CSE on the Pacific Association of Domestic Insurance Companies Board of Directors and is a past member of the In-House Counsel Committee of the Asian American Bar Association of the Greater Bay Area. Wong has been reappointed to the CIGA Board of Governors as the representative of CSE Insurance Group in a member insurer seat with a term ending on December 31, 2025. Peter Guastamachio is Chief Investment Officer and Treasurer for the State Compensation Insurance Fund (SCIF), overseeing a multi-billion-dollar investment portfolio. Guastamachio has 40 years of experience in finance, including over 20 years of experience in the insurance industry in both publicly traded insurance companies as well as a public state fund. Guastamachio is a member of the National Association of Corporate Directors (NACD) and holds the Governance and Leadership Fellow certifications from the NACD. Guastamachio has been reappointed to the CIGA Board of Governors as the representative of SCIF in a member insurer seat with a term ending on December 31, 2025 ...
Read More
/ 2023 News, Daily News
Jesus Gomez was employed by Adanna Car Wash Corporation located on Crenshaw Blvd, in Gardena California. He filed a wage claim against his employer with the California Labor Commissioner. After a hearing, the Labor Commissioner awarded Gomez $23,915.59 for overtime earnings, meal period premium pay, rest period premium pay, liquidated damages, interest, and waiting time penalties. Under Labor Code section 98.2, subdivision (a), a party to a Labor Commissioner proceeding may seek review "of an order, decision, or award by filing an appeal to the superior court, where the appeal shall be heard de novo." Under subdivision (b) of the statute, if the employer is the appealing party, the employer must post a bond. Adanna filed with the Los Angeles County superior court a document entitled "Department of Industrial Relations Notice of Appeal De Novo" and a "Notice of Posting Bond Re Department of Industrial Relations Notice of Appeal De Novo." However Adanna had attached a copy of its Labor Code section 2055 car wash bond rather than a specific bond required section 98.2. Gomez moved to dismiss the appeal because Adanna "failed to deposit/post an undertaking, which is a jurisdictional prerequisite for [its] appeal under Labor Code section 98.2(b)." In opposition, Adanna argued that the section 2055 bond satisfied the section 98.2 undertaking because the former was intended to benefit car wash employees and Gomez was a car wash employee. The superior court granted Gomez’s motion and dismissed the appeal. The Court of Appeal affirmed in the published case of Adanna Car Wash Corp. v. Gomez - B313649 (January 2023). This appeal addresses the relationship between two statutory surety bonds required under different sections of the Labor Code. There are two types of bonds in play here - a section 98.2 appeal bond and a section 2055 car wash bond. "The appeal bond is forfeited to the employee where the employer’s appeal fails or is withdrawn, and the employer does not timely pay the award. (§ 98.2, subd. (b).)" "In contrast, a $150,000 car wash bond is a prerequisite to operating a car wash in California. (§ 2055.) On its face, section 2055 makes clear a car wash bond has nothing to do with litigation or appellate proceedings. It is condition that must be satisfied before the car wash employer may obtain a license or permit:" The Court went on to say "Adanna’s sleight-of-hand attempt to substitute a car wash bond for an appeal bond runs afoul of a rule that applies to bonds in general. Code of Civil Procedure section 995.140, subdivision (b) expressly distinguishes between a licensing bond and one furnished in connection with litigation." The Legislative history supports the analysis that the posting of a section 98.2 bond is essential to protect employees in Labor Commissioner appeals filed by employers. Prior to 2000, section 98.2 did not require employers seeking appellate review of Labor Commissioner awards to post a bond. In that year, the Legislature amended section 98.2 to include the appeal bond requirement to ensure that workers are paid if they prevail at the de novo appeal in cases where employers "disappear or declare bankruptcy" during the appeal. According to the legislative analysis when the appeal bond was being considered, there was evidence that "unscrupulous employers, particularly those in the underground economy, were filing ‘frivolous’ appeals of [Labor Commissioner] decisions with the superior court in an effort to drag out litigation and hide assets so that workers would not be able to collect on judgments, even if ultimately successful on appeal." Thus the Court concluded that "a section 2055 car wash bond is not an appeal bond under section 98.2 subdivision (b)." ...
Read More
/ 2023 News, Daily News
Surgical volume, the frequency with which surgeons and surgery centers perform complex surgical procedures, is clearly understood as a key determinant of healthcare quality. The Agency for Healthcare Research and Quality (AHRQ) includes "how many times have you done this procedure" as one of the 10 questions patients should ask their doctor. Consumer Reports similarly recommends patients inquire about surgical volume when choosing a physician. Prior studies concluded that providers with higher surgical volume are expected to have fewer medical errors and defects, better acute outcomes overall, and other post-acute benefits following the surgical procedure. However, existing studies have only been able to leverage relatively small samples of data for specific surgical procedures. In this new paper, Clarify Health used a large, observational sample of national health insurance claims for patients undergoing hip and knee replacement surgeries performed in 2021. Hip and knee surgeries are the most common elective orthopedic surgical procedures where provider choice is possible for patients. It found that low provider surgical volume negatively impacts post-acute outcomes across inpatient and outpatient settings, even after it controlled for patient characteristics and other factors. And it found that treatment by higher-volume surgeons is particularly important for more clinically complex patients. Clarify Health analyzed two of the most common types of surgical episodes, total hip arthroplasty (THA), commonly known as hip replacements, and total knee arthroplasty (TKA), commonly known as knee replacements. For both hip and knee replacements, higher provider surgical volume is associated with better outcomes across multiple dimensions and multiple care settings, even after adjusting for differences in patient characteristics. Major findings included: - - Lower rates of post-acute inpatient readmission at both 7 and 60 days - - Lower rates of revision surgeries - - Lower rates of post-surgical stay orthopedic specialist visits, emergency department visits, and inpatient days - - Lower episode-level and orthopedic-specific standard dollar amounts When Clarify Health stratified hip and knee replacements by place of service (inpatient (IP), outpatient (OP), and ambulatory surgical center (ASC) settings), volume-outcome relationships largely remain. - - Post-surgical ED utilization rates are approximately 21% lower for high-volume surgeons in an IP setting compared to low-volume surgeons, 35% lower in an OP setting, and 34% lower in an ASC setting - - Readmission rates are approximately 32% lower for high-volume surgeons in an IP setting compared to low-volume surgeons, 47% lower in an OP setting, and 74% lower in an ASC setting - - Revision surgery rates are approximately 7% lower for high-volume surgeons in an IP setting compared to low-volume surgeons, 40% lower in an OP setting, and 5% higher in an ASC setting Its findings imply clinical benefits for patients who undergo hip and knee replacement surgeries with high-volume surgeons, even after adjusting for patient and other characteristics. Payers and health systems have begun to concentrate volume of surgeries and other procedures at specific sites within their networks, often referring to these locations as "centers of excellence" (COEs). For orthopedic surgeries, COEs are often implemented in OP or ASC settings. COEs have higher relative volume, are actively educating care teams about best practices and current medical research, often obtain special accreditations from national organizations and consistently generate improved outcomes versus lower-volume sites of care ...
Read More
/ 2023 News, Daily News
In a landmark NLRB decision, the Board broadly expanded the monetary award that may be given to prevailing workers in unfair labor practice disputes. Prior to the new Thryv, Inc. and International Brotherhood of Electrical Workers, Local 1269 - (20-CA-251105) December 2022 decision, monetary damages had been limited to "back pay." This limit has been expanded by the NLRB to award monetary damages to include "make whole" relief. To make the employee "whole,"examples of additional forms of relief may include "consequential damages" such as increases in insurance premiums, co-pays, coinsurance, deductibles, and other out-of-pocket expenses, extra medical expenses, expenses incurred in connection with a search for other work, credit card debt interest and late fees on credit card debt, penalties suffered by employees who are forced to make early withdrawals from retirement accounts; and increased transportation or childcare costs. In this case the California employer, Thryv, Inc., operates a marketing agency engaged in the business of selling Yellow Pages advertising, as well its eponymous product "Thryv," an application for small businesses. While all parties agree that Yellow Pages advertising has increasingly declined since the advent of the Internet, Thryv still generates annual revenues in excess of $1.1 billion, with print and electronic advertising accounting for 88 percent of that amount. The Union represents a unit of employees that includes the Thryv outside sales force, which in turn consists of three subsets of "premise" representatives, so named because they go to customer premises to solicit advertising sales. Around mid-July of 2019, Thryv began implementing its proposal to lay off all of its New Business Advisors in the Northern California Region. The Assistant Vice President of Labor Relations emailed the Union stating that Thryv "will administer a force adjustment" and lay off the six New Business Advisors in the Northern California Region effective September 20. The email stated, "[i]f the Union desires to exercise its right to meet and discuss the Company’s plan within the 30-day period, please contact [Labor Relations Manager] Ralph Vitales to arrange such discussions." The Union and Thryv met several times to discuss the layoff of the New Business Advisors, but failed to arrive at an agreement. And Thryv then unilaterally implemented its layoff decision just nine days after the first bargaining session. While the trial judge did not find this to be unlawful, the NLRB reversed, and found that Thryv "violated Section 8(a)(5) and (1) by unilaterally laying off six New Business Advisors" without responding to the union request for additional documentation it needed to evaluate the offers made by Thryv. In concluding the appeal, the NLRB next turned to the issue of "the proper remedy." It went on to conclude "that it is necessary for the Board to revisit and clarify our existing practice of ordering relief that ensures affected employees are made whole for the consequences of a respondent’s unlawful conduct." Previously, the Board had issued a Notice and Invitation to File Briefs, which sought briefing on whether the Board should include, as part of its make-whole remedy, "relief for consequential damages." In it's amicus brief, the U.S. Chamber of Commerce pointed out that " By its terms, Section 10(c) identifies "back pay" as the only monetary relief that the Board can award to employees who suffer harm from an unfair labor practice. On finding that a person has committed an unfair labor practice, the Board "shall issue . . . an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of [the Act]" 29 U.S.C. § 160(c). That language has been present e unchanged since the Wagner Act’s adoption in 1935." Despite arguments by amicus to the contrary, the Board concluded that "in all cases in which our standard remedy would include an order for make- whole relief, the Board will expressly order that the respondent compensate affected employees for all direct or foreseeable pecuniary harms suffered as a result of the respondent’s unfair labor practice." In rejecting the argument of the Chamber of Commerce (and several other amicus briefs) the Board supported their ruling by noting "The Supreme Court has held that our authority to fashion such a remedy "is a broad discretionary one." NLRB v. J. H. Rutter-Rex Manufacturing, 396 U.S. 258, 262-63 (1969), and several other case decisions. "Make-whole relief" is more fully realized when it consistently compensates affected employees for all direct or foreseeable pecuniary harms that result from a respondent’s unfair labor practice. Where, as here, employees have been laid off in violation of the Act or been the targets of other unfair labor practices, they may be forced to incur significant financial costs, such as out-of-pocket medical expenses, credit card debt, or other costs simply in order to make ends meet. We cannot fairly say that employees have been made whole until they are fully compensated for these kinds of pecuniary harms if the harms were direct or foreseeable consequences of the respondent’s unfair labor practice. The Board has a "statutory obligation to provide meaningful, make-whole relief for losses incurred by discriminatees . . . . " ...
Read More
/ 2023 News, Daily News
Claims administrators are reminded that the Annual Report of Inventory (ARI) must be submitted in early 2023 for claims reported in calendar year 2022. The California Code of Regulations, title 8, Section 10104 requires claims administrators to file, by April 1 of each year, an ARI with the Division of Workers’ Compensation (DWC) indicating the number of claims reported at each adjusting location for the preceding calendar year. Even if no claims were reported in the prior year, the report must be completed and submitted to the DWC Audit Unit. Each adjusting location is required to submit an ARI unless its requirement has been waived by DWC. When ARI requirements are waived, claims administrators must file an annual report of adjusting locations. This report is to be filed annually on April 1 of each calendar year for the adjusting location operations as of December 31 of the prior year. Claims administrators are required to report any change in the information reported in the ARI or annual report of adjusting location within 45 days of the effective date of the change. Penalties of up to $500 per location for failure to timely file this Report of Inventory may be assessed under Title 8, California Code of Regulations, Section 10111.1(b)(11) or 10111.2(b)(26). The form for 2022 can be found on the DWC website. Questions about submission of the ARI or the annual report of adjusting locations may be directed to the Audit Unit:: State of California Department of Industrial Relations Division of Workers’ Compensation - Audit Unit 160 Promenade Circle, Suite #340 Sacramento, CA 95834-2962 Email: DWCAuditUnit@dir.ca.gov, FAX 916.928.3183 or phone 916.928.3180 ...
Read More
/ 2023 News, Daily News