Congress passed the Ryan Haight Online Pharmacy Consumer Protection Act in 2008, which requires the DEA, in conjunction with HHS, to promulgate permanent rules to allow practitioners to prescribe certain controlled medications via telehealth through a special registration pathway. As of today, the agency still had not done so. In the advent of the Public Health Emergency, the DEA allowed DEA-registered practitioners to issue prescriptions for certain controlled substances to patients via telemedicine without requiring an in-person medical evaluation. The DEA authorization was temporary and is set to expire at year-end. The American Telemedicine Association reports that these flexibilities have been a lifeline for countless individuals across the country, ensuring uninterrupted access to essential mental health care, substance use treatment, end-of-life care, and many other crucial treatments during a time when in-person visits were impossible or unsafe. The ongoing challenges in accessing mental health and substance use treatment services, particularly in rural and underserved areas, underscore the importance of maintaining these flexibilities. More than half of U.S. counties do not have a psychiatrist. The shortage is even more prominent in rural areas, with nearly three quarters of rural counties lacking a psychiatrist. Telemedicine has proven to be an effective tool in bridging the gap between patients and providers, reducing barriers to care, and supporting those most in need. At its pandemic peak, telehealth represented 40% of mental health and substance use outpatient visits, and still remains strong, representing 36% of outpatient visits currently. Given the widespread provider shortage across medical professions and specialties, this flexibility has been essential in ensuring that patients receive timely and necessary care. Continuing these practices is vital to sustaining access to treatment and addressing the ongoing healthcare challenges in underserved areas. For these reasons, this week, more than 330 stakeholder organizations asked Congress and the White House to intervene to ensure ongoing access to remote prescribing of controlled substances. The letters were co-led by the American Telemedicine Association (ATA) and ATA Action alongside other like-minded partners and organizations. Stakeholders anticipate, based on current reporting, that the Drug Enforcement Administration (DEA) will dramatically limit virtual prescribing, either through new regulations or by allowing the existing flexibilities to expire at year-end. "This is a predictable and preventable crisis that is looming come January 1 and we are quickly running out of time to save countless patients from being abandoned, left without lifesaving clinically appropriate care," said Kyle Zebley, the ATA’s senior vice president, public policy, and executive director, ATA Action. "With each day, we are losing precious time the DEA needs to properly develop a rule that appropriately permits and regulates the prescribing of controlled substances through telehealth without jeopardizing the health and safety of Americans, especially those in underserved communities." Specifically, the letters to House and Senate leaders urge Congress to include a two-year extension of pandemic-era remote prescribing flexibilities for controlled substances in an end-of-year legislative package. The letter to the White House recommends that the Biden Administration work with the DEA and other relevant agencies to use existing authorities to extend these flexibilities for two years, providing the DEA with additional time to fulfill its congressional mandate to establish a special registration pathway that balances access to medically necessary care with appropriate enforcement. "President Biden has already pledged to do all he can to protect all Americans, especially those who are vulnerable, from losing access to vital healthcare services, and we are grateful for the Administration’s longstanding commitment to establishing telehealth as a permanent part of care delivery," Zebley added. "It’s in the hands of our policy champions in the Administration and Congress to safeguard the American people, create predictability for our providers, and modernize our healthcare system to make sure patients receive timely and necessary care. We continue to stand ready to work with policymakers to make telehealth a permanent option in a modernized healthcare system." ...

The American Hospital Association (AHA) released a new report finding that hospital and health system performance on key patient safety and quality measures was better in the first quarter of 2024 than it was before the COVID-19 pandemic, and that hospitals made these improvements while caring for patients with more significant health care needs. For the report, Vizient provided a risk-adjusted analysis of data from a wide spectrum of 715 general acute care hospitals across 49 states and the District of Columbia with data from the fourth quarter of 2019 through the first quarter of 2024. The 2023 and 2024 data provide a timelier snapshot on hospitals’ performance on key measures compared to some other reports that often use older or outdated data. Key findings from the report include: - - Despite being sicker and having more complex conditions, hospitalized patients in the first quarter of 2024 were on average over 20% more likely to survive than expected given the severity of their illnesses compared to the fourth quarter of 2019. - - Based on Vizient's analysis, the AHA using national hospitalization data projects that while caring for sicker patients, hospitals’ efforts to improve safety led to 200,000 Americans hospitalized between April 2023 and March 2024 surviving episodes of care they wouldn’t have in 2019. - - Hospitals cared for more patients overall in the first quarter of 2024 than in the last quarter of 2019, including providing care to a sicker, more complex patient population. - - Hospitals’ central line-associated bloodstream infections (CLABSI) and catheter-associated urinary tract (CAUTI) infections in the first quarter of 2024 were at rates lower than those recorded in 2019. - - Not only did multiple key preventive health screenings rapidly rebound to pre-pandemic levels, but ongoing improvement has led to a 60%-to-80% increase in breast, colon and cervical cancer screenings compared to 2019. "Hospitals and health systems are continuously working to advance patient safety and quality - which is always the hospital field’s top priority," said AHA President and CEO Rick Pollack. "This report shows hospitals have made significant improvements on pre-pandemic performance in key patient safety outcomes. Hospitals’ commitment to improving patient outcomes and enhancing the patient experience continues to drive these efforts forward." "The data in this report underscore the resilience and unwavering commitment of hospitals and health systems - and the millions of hospital team members across the country - to delivering better care and outcomes to the patients and communities they serve," said AHA Chief Physician Executive and Senior Vice President Chris DeRienzo, M.D. "While hospitals are proud of the progress they continue to make, they also recognize that there is still work to be done." "The recent findings from the American Hospital Association highlight the critical role of data in understanding hospital performance on essential patient safety and quality measures," said Vizient Chief Medical Officer David Levine, M.D ...

On March 8, 2018, Tatyana Litvinova filed a putative collective-action complaint against the City and County of San Francisco alleging that the City violated the Fair Labor Standards Act by not paying staff nurses time-and-a-half for overtime work, including per diem shifts. Litvinova v. City and County of San Francisco, No. 3:18-cv-1494-RS (N.D. Cal.). She moved to certify a collective action under 29 U.S.C. § 216(b), and the district court granted the motion. On October 22, 2020, Kristen Silloway, Christa Duran, and Brigitta van Ewijk filed a similar complaint on behalf of themselves and "similarly situated dual-status registered nurses." Silloway v. City and County of San Francisco, No. 3:20-cv-7400-RS (N.D. Cal.). Given the factual similarity between the two cases, the district court issued an order treating them as related. Between the two separate collective actions, a total of about 353 plaintiffs opted in. On cross-motions for summary judgment, the district court granted summary judgment in favor of the City, concluding that the staff nurses were paid on a "salary basis" and therefore exempt from the FLSA overtime requirements. Litvinova v. City and County of San Francisco, 615 F. Supp. 3d 1061, 1069 (N.D. Cal. 2022). The district court treated the published salary ordinance, which referred to staff nurses as salaried employees, as "dispositive evidence" that the nurses were compensated on a salary basis. The district court found the nurses' hourly pay rates to be a mere "accounting fiction" used for administrative purposes, and it rejected plaintiffs’ allegations of improper pay deductions by finding that the City’s expert report provided adequate explanations for those discrepancies. Silloway timely appealed the district court’s decision. Litvinova filed a Motion for Reconsideration under Federal Rules of Civil Procedure 59 and 60 and then, after it was denied, timely appealed as well. The United States Court of Appeals for the 9th Circuit consolidated the two appeals for argument and decision. It reversed the grant of the summary judgment motion in favor of the City in the published case of Kristen Silloway, et.al. v City and County of San Francisco 22-16079 (September 2024). The City of San Francisco employs staff nurses in its hospitals, jails, and clinics. Many work more than 40 hours in a week. The Fair Labor Standards Act provides that employees should generally receive time-and-a-half pay for working overtime, but one of the Act’s exemptions from that requirement applies to employees working in a bona fide professional capacity. The City claims that staff nurses fall into that exemption. The plaintiffs disagree. The 9th Circuit concluded that the district court erred in granting summary judgment to the City. The salary ordinance, which the district court found to be dispositive evidence that the staff nurses were paid on a salary basis, is neither the starting point nor the ending point for that inquiry. Rather, the salary basis test asks whether an employee actually receives a predetermined amount of compensation on a weekly or less frequent basis as a matter of practice. In this case, the parties dispute several factual issues that are material to answering that question. The most significant is whether staff nurses are guaranteed the opportunity to work the hours corresponding to their full-time equivalency every week. According to an expert report submitted by the City itself, the City recorded staff nurses as working or being credited for fewer hours than their full-time equivalencies in at least 72 employee pay periods out of more than 2,200 reviewed. Because staff nurses are paid according to the number of hours they are recorded as working or otherwise credited, it is uncertain whether staff nurses received their predetermined amounts of compensation during these irregular pay periods. Additionally, the FLSA’s "actual practice" and "window of correction" provisions offer the City no refuge, at least on summary judgment. Assuming that the 72 abnormal pay periods represent improper deductions - as must be done in reviewing a grant of summary judgment against the plaintiffs - the City made improper deductions much more frequently than in cases where courts have found that no "actual practice" existed. Questions about the propriety of these 72 deductions leave material factual issues in dispute as to whether the City maintained an "actual practice" of making improper deductions. As for the "window of correction" defense, the City has not provided evidence showing that the staff nurses were reimbursed for any of these possibly improper deductions, so summary judgment cannot be granted or affirmed on that ground, either. The panel reversed the district court’s summary judgment for the City and County of San Francisco, and remanded, in both cases ...

The emergence of medical innovations, new technologies and cutting-edge procedures spurred most of the annual changes presented in the release of the Current Procedural Terminology (CPT®) 2025, the nation’s uniform data-sharing code set for medical procedures and services published by the American Medical Association (AMA). "The CPT code set is the foundation for the efficient and effective exchange of standardized information in a data-driven health system, facilitating the reporting, measuring, analyzing, researching, and benchmarking of medical services and procedures with the goal of delivering better patient care, improved outcomes and lower costs," said AMA President Bruce A, Scott, M.D. "The latest updates to the CPT code set reflect advancements in contemporary clinical practice and ensures the code set fulfills its vital role as the trusted universal language of medicine." There are 420 overall updates in the CPT 2025 code set, including 270 new codes, 112 deletions, and 38 revisions. The CPT code set continues to expand in new areas of medicine with proprietary laboratory analyses assigned to the largest proportion of new codes (37%), mostly for novel genetic testing. Category III CPT codes for emerging medical services accounted for about a third of new codes (30%). Updates to the CPT code set are considered through an open editorial process managed by the CPT Editorial Panel, an independent body convened by the AMA that collects broad input from the health care community and beyond to ensure CPT content reflects the demands of a modern health care system. This rigorous editorial process keeps the CPT code set current with contemporary medical science and technology so it can fulfill its vital role as the trusted language of medicine today and the code to its future. Key updates in the CPT 2025 code set include: - - Digital medicine - Remote therapeutic monitoring (RTM) services were editorially revised. Code 98975 was updated to include digital therapeutic intervention, while codes 98976-98978 were revised to include device supply for data access or data transmissions to support RTM of patients. - - Augmented/Artificial Intelligence (AI) - The AI Taxonomy introduced in 2023 has been implemented in category III CPT codes to classify AI medical services and procedures as assistive, augmentative, or autonomous based on the work performed by the AI application on behalf of the physician or other qualified health care professional (QHP). Seven category III code have been established for AI augmentative data analysis involved in electrocardiogram measurements (0902T and 0932T), medical chest imagining (0877T-0880T), and image-guided prostate biopsy (0898T). - - General surgery - Updates were made to CPT’s general surgery section to reflect novel approaches in skin grafts for wound care and recovery (15011-15018) and advancements in surgical techniques for the elimination of tumors within the abdomen (49186-49190). The AMA invites the health care community to the world’s only medical coding event delivered by the authority on the CPT code set. Get guidance on the updates for the CPT 2025 code set by virtually attending the CPT & RBRVS 2025 Annual Symposium in November. Coding books and products are available from the AMA Storefront on Amazon, including the CPT 2025 Professional Edition codebook. CPT data products, including the CPT 2025 Standard Data File, are available via the AMA Intelligent Platform ...

Anna Nicole Smith was an American model, actress and television personality. On February 8, 2007, Smith was found dead at the Seminole Hard Rock Hotel and Casino in Hollywood, Florida. Broward County Medical Examiner and Forensic Pathologist Dr. Joshua Perper announced that Smith died of "combined drug intoxication" with the sleeping medication chloral hydrate as the "major component." Dr. Perper claimed that Dr. Khristine Elaine Eroshevich, an Encino psychiatrist had issued 11 prescriptions to Smith. Eroshevich was with Smith when she checked into the Florida hotel, where she later died. More than 600 pills - including about 450 muscle relaxants - were missing from prescriptions that were no more than five weeks old. Eroshevich also is the teal party in interest and lien claimant who seeks payment for services rendered to workers’ compensation claimants in approximately 1,100 lien claims. Much of the history in this case appears in a 2020 Opinion and Decision After Reconsideration in her consolidated cases. On September 23,2009, Dr. Eroshevich was charged with six felony counts. On October 28,2010, and after more than two months of trial, Dr. Eroshevich was found guilty by a jury of Count 7, conviction for prescription fraud. On October 12, 2011, The Medical Board of California, Department of Consumer Affairs issued an accusation against Dr. Eroshevich seeking disciplinary action pursuant to Business and Professions Code section 2236, based on her conviction for "a crime substantially related to the qualifications, functions, or duties as a physician and surgeon." On January 19, 2012, the California Attorney General and Dr. Eroshevich entered into a Stipulated Settlement and Disciplinary Order (Medical Board Stipulation) based on the First and Sixth cause for discipline. The Stipulation contains the following reservation: "The admissions made by Respondent herein are only for the Pgrpgse.s of this proceeding, or any other proceedings in which the Medical Board of California or other professional licensing agency is involved, and shall not be admissible in any other criminal or civil proceeding." On May 6,2016, the Medical Board terminated probation and reinstated Dr. Eroshevich's license based on good cause pursuant to Business and Professions Code section 2307 and California Code of Regulations, title 16, section 1360.2. On February 16,2018, the Chief Judge of the Department of Workers'Compensation issued a Consolidation and Order Staying Liens.On March 14, 2018, lien claimant filed a response to the Consolidation Order requesting that her suspension from the workers' compensation system be vacated. This matter went to trial on September 10, 2019. The WCJ admitted into evidence the parties exhibits and found as follows: Dr. Eroshevich was convicted of four felony counts that were reduced to one misdemeanor; Dr. Eroshevich stipulated to a determination by the Medical Board of California based on certain acts in workers' compensation claims such that her medical license was suspended after a stay of revocation; Dr. Eroshevich was suspended from participating in the Workers' Compensation system pursuant to an order issued on November 29,2017; and that Dr. Eroshevich filed liens in each of the cases involved in this consolidated matter. The WCJ further found that lien claimant failed to meet the burden of proof required to rebut the presumption of Labor Code3 section 139.21(9). Erosevich's Petition for Reconsideration was granted, and the WCAB rescinded the F&O, and returned this matter to the trial level for further proceedings consistent with this decision.in Tang (1) v Solar Link International, Dr. Khristine Eroshevich Real Party In Interest -SAU6852145 (April 2020). Following remand, another Findings of Fact & Order after Remand by the Workers’ Compensation Appeals Board (F&O), issued on September 22, 2020 by a workers’ compensation administrative law judge (WCJ). The WCJ found in pertinent part that lien claimant was convicted of a misdemeanor for fraudulently prescribing a controlled substance in violation of Health and Safety Code section 11173, subdivision (a) (11173(a)); that this conviction was the only basis for the WCJ’s determination; and, that lien claimant failed to meet the burden of proof required to rebut the presumption set forth in Labor Code2 section 139.21, subdivision (g) (section 139.21(g)); and, therefore, all liens and underlying bills for service and claims for compensation from lien claimant arise from the conduct set forth in the Order of Suspension of lien claimant pursuant to section 139.21, subdivision (a)(1)(A)(iv) (section 139.21(a)(1)(A)(iv)). And that lien claimant’s liens be dismissed with prejudice and that lien claimant shall have no right to payment on all underlying bills for service and claims for compensation within the jurisdiction of the workers’ compensation system. Sometime after the September 22, 2020 Finding of Fact & Order, the WCAB again granted the Petition for Reconsideration filed by lien claimant Kristine Eroshevich, M.D., Ph.D. "in order to study further the legal and factual issues raised therein." . It was arguably what is referred to as a Grant-and-Study Order. Then the Court of Appeal issued three different published opinions indicating that Grant-and-Study orders are not compliant with the Labor Code, and that the WCAB lacks jurisdiction to grant reconsideration if its fully reasoned grant of reconsideration did not occur within 60 days. See Earley v. Workers’ Comp. Appeals Bd. (2023) 94 Cal.App.5th 1 - Zurich American Ins. Co. v. Workers’ Comp. Appeals Bd. (2023) 97 Cal.App.5th 1213 - And recently Mayor v. Workers' Compensation Appeals Bd A169465 (August 2024). Nearly 4 years after the September 22, 2020 Findings of Fact & Order after Remand the WCAB issued its "Opinion and Decision after Reconsideration" on August 30, 2024 in the case of Tang (2) v Solar Link International, Dr. Khristine Eroshevich Real Party In Interest -SAU6852145 (August 2024), and affirmed the F&O in part, but amended the Findings of Fact and the Orders to find that lien claimant did rebut the section 139.21(g) presumption; that lien claimant’s lien claims are not dismissed with prejudice; and, that adjudication of the merits of lien claimant’s lien claims are deferred pending decision by the workers’ compensation administrative law judge pursuant to section 139.21, subdivision (i), whether to adjudicate the liens or to transfer the liens back to the district offices having venue over the cases in which the liens were filed ...

The U.S. Drug Enforcement Administration has seen an increase in burglaries at independent pharmacies across the country. Nearly 900 burglaries involving the theft of controlled substances were reported to DEA in 2023. Stolen prescription medications adversely impact these small businesses while also putting patients and the community at risk. The Eastern District of Arkansas, representatives from DEA joined the U.S. Attorney’s Office to announce the results of a 21-month investigation into a Houston-based drug trafficking organization (DTO) responsible for hundreds of pharmacy burglaries across the country. The culmination of this investigation led to the arrest of an additional 24 members of the DTO in Houston, bringing the total number of people facing charges connected to this drug ring to 42. The results of the first phase of this operation were announced in December. DEA’s Little Rock District Office led the investigation after identifying a string of pharmacy burglaries and thefts of pharmaceutical medications throughout Arkansas. With the assistance of DEA’s Special Operations Division, this organization has been linked to more than 200 pharmacy burglaries across the United States, including Alabama, Arkansas, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, and Wyoming. Oxycodone, hydrocodone, alprazolam, and promethazine with codeine cough syrup were among the most common controlled substances stolen and transported to Houston to be sold illegally. "From November 2023 to July 2024, the DEA, with our law enforcement partners, took down 42 individuals behind nearly 200 pharmacy burglaries in 31 states. This Houston-based network targeted rural pharmacies, stealing powerful drugs like Oxycodone, Xanax, and Adderall to flood the streets," said Administrator Anne Milgram. "These criminals even crawled on floors to dodge security, but they couldn't escape us. We dismantled their entire operation-street dealers, burglars, and all. In the fight against the opioid epidemic, the DEA is relentless in shutting down those who profit from fueling addiction." In addition to this announcement, DEA has released a safety alert video and additional resources to help protect against pharmacy burglaries. This operation is part of an Organized Crime Drug Enforcement Task Forces (OCDETF) operation. OCDETF identifies, disrupts, and dismantles the highest-level criminal organizations that threaten the United States using a prosecutor-led, intelligence-driven, multi-agency approach. Additional information about the OCDETF Program can be found at https://www.justice.gov/OCDETF ...

In 1996 Saul Fox and Dexter Paine formed Fox Paine & Company (FPC), a private equity management firm. Fox’s relationship with Paine deteriorated, and a business deal "fell apart," resulting in the first of what would become a litany of litigation. In December 2007, the Delaware lawsuit was settled, in a settlement agreement that was to effect a "complete divorce" between the Fox parties and FPC and the Paine parties. Whatever the peace envisioned, it was short-lived, as in January 2008 Paine filed a pleading involving the settlement agreement. This was the first in a series of fights that would last for the next five years, as the Fox parties and Paine parties (including several former FPC directors and officers) became embroiled in lawsuits, arbitration proceedings, writs, and an appeal stemming from the August 2007 lawsuit and its settlement (the Fox-Paine litigation). The Fox-Paine litigation ended with a settlement agreement in August 2012, which agreement represented it "resolved all outstanding issues among" Fox and Paine and "effectively put an end to the Fox-Paine Litigation." However, there was more litigation to come. In addition to other litigation in non-California jurisdictions, in 2017, eight plaintiffs sued several defendants including three excess insurers, which insurers provided $40 million in excess coverage in four layers of $10 million each. There were four causes of action, breach of contract, declaratory relief, breach of the covenant of good faith and fair dealing, and aiding and abetting breaches of fiduciary duty. The three excess insurers each filed demurrers, The trial court overruled the demurrer of the first level excess insurer, but sustained the demurrers of the two other excess insurers without leave to amend, and entered judgments for them. Plaintiffs appealed. The Court of Appeal affirmed in the published case of Fox Paine & Co., LLC, et al. v. Twin City Fire Insurance Co. et al. -A168803 (September 2024). Plaintiffs’ first cause of action is breach of contract. Excess insurance ‘refers to indemnity coverage that attaches upon the exhaustion of underlying insurance coverage for a claim.’ The Court of Appeal reviewed case law that established that the interpretation of an insurance policy is a question of law. And if contractual language is clear and explicit, it governs. The trial court order addressed the question of exhaustion as to all three of the excess insurers, in a lengthy analysis. Following that analysis, the trial court sustained the demurrers of St. Paul and Liberty Mutual without leave to amend. This was correct. The St. Paul policy is triggered only if the "total amount of" underlying limits "has been paid." And Liberty Mutual’s policy "only provides coverage" when the underlying limit of liability "is exhausted" by the underlying insurers "paying or being held liable to pay." Such language demonstrates that the St. Paul and Liberty Mutual policies did not attach and no obligations arose. Hence, there was no breach of contract. The trial court order addressed the question of exhaustion as to all three of the excess insurers, in a lengthy analysis. Following that analysis, the trial court sustained the demurrers of St. Paul and Liberty Mutual without leave to amend. This was correct. Plaintiffs’ second cause of action was styled "declaratory judgment," more accurately called "declaratory relief." As noted, it is this cause of action it reads "the trial court erred in holding that plaintiffs had to establish actual exhaustion..." Code of Civil Procedure section 1060 provides in pertinent part that declaratory relief is proper as to a contract "in cases of actual controversy relating to the legal rights and duties of the respective parties." , Code of Civil Procedure section 1061 goes on to state that a court "may refuse to exercise the power" to grant declaratory relief "in any case where its declaration or determination is not necessary or proper at the time under all the circumstances." The Court of Appeal concluded that Code of Civil Procedure sections 1060 and 1061 both demonstrate that declaratory relief is not appropriate in this case. "Even if plaintiffs had established the existence of an actual controversy - and they have not - the trial court had discretion to dismiss the declaratory relief cause of action if a declaration was not necessary or proper at the time under the circumstances." Plaintiffs' third argument is that there was "no reason to dismiss plaintiffs’ other, unrelated tort causes of action," referring to their claims for violation of the covenant of good faith and fair dealing and aiding and abetting breaches of fiduciary duty. "Plaintiffs are wrong. There was good reason to dismiss these causes of action, as neither stated a claim." "It is clear that if there is no potential for coverage and, hence, no duty to defend under the terms of the policy, there can be no action for breach of the implied covenant of good faith and fair dealing because the covenant is based on the contractual relationship between the insured and the insurer." ...

Workplace-related mental injuries, marijuana reimbursements, independent contractors and the gig economy, and single-payer health insurance were among the top workers compensation focuses of state legislatures in 2024 according to a new report from the National Council on Compensation Insurance (NCCI). NCCI’s 2024 Regulatory and Legislative Trends provides an overview of developments affecting the workers compensation system in two parts: the Regulatory and Legislative Trends Report (Report) and two interactive navigation dashboards. The annual Report offers a wealth of resources on important workers compensation-related topics, including first responder presumptions, hallucinogens and psychedelics, and marijuana legalization. Notable highlights include legislative activity by geographical zone for an overview of regional happenings across the country. Through July 31, 2024, NCCI tracked 917 state and federal bills that could impact workers compensation stakeholders. This includes 474 bills in states where NCCI is a licensed rating or advisory organization. NCCI also monitored 266 proposed workers compensation-related regulations. "As the regulatory and legislative landscape evolves, it is imperative for industry leaders to stay informed and adapt strategically," said Bill Donnell, President and CEO of NCCI. "At NCCI, we are committed to delivering comprehensive updates and insights to help stakeholders navigate the road ahead." NCCI’s 2024 Regulatory and Legislative Trends also includes two intuitive and interactive dashboards: - - Enacted Legislation - Interactive Dashboard provides users with easy-to-use navigation for a countrywide, state, or regional view of workers compensation-related enacted legislation. - - Loss Cost/Rate Filing - Interactive Dashboard provides an overview of filed and approved loss cost/rate information based on the 2020-2021, 2021-2022, 2022-2023, and 2023-2024 filing seasons. "In 2024, NCCI closely monitored over 1,000 bills and proposed regulations nationwide, covering a broad spectrum of critical issues," said Tim Tucker, NCCI’s Executive Director of Legislative and Government Affairs. "NCCI’s annual Report provides a thorough analysis of the regulatory and legislative trends that may shape the workers compensation landscape." Check out the 2024 Regulatory and Legislative Trends and NCCI’s full suite of resources - including the Legislative Activity online resource, Court Case Insights tracker, and more on the NCCI website ...

On September 4, 2024, the Appeals Board issued en banc orders which consolidated multiple cases pending on removal and ordered the parties to produce supplemental pleadings in those cases. Upon a unanimous vote of its members, the Appeals Board issues this decision as an en banc decision. In each of the underlying cases, applicant’s attorney, Patrick C. Gorman, seeks either removal or disqualification of the entire Redding and Eureka district offices as relates to a dispute over the division of attorney’s fees between Mr. Gorman, and applicant’s former attorney, Steven D. Riley. Their dispute appears centered upon a contract for the sale of a law practice from Mr. Riley to Mr. Gorman. In each of these cases, the Appeals Board seeks additional information, particularly on the issue of jurisdiction as relates to the contractual claims alleged. Current attorney for applicants, Patrick C. Gorman, alleges that WCJs at those offices have approved attorney’s fees where it is alleged that former attorney for applicants, Steven D. Riley, failed to file a proper disclosure in compliance with Labor Code section 4906. These matters involve an alleged course of conduct that appears to have occurred across five (5) cases involving the current attorney for applicants, Mr. Gorman, and the former attorney for applicants, Mr. Riley. None of these matters have proceeded to a hearing on the merits of the issues raised in the disqualification petitions. The Appeals Board takes judicial notice of the Electronic Adjudication Management System ("EAMS") files in each of these cases. Based on the allegations in the pleadings submitted the WCAB wrote "it appears that the two attorneys entered into a contract for sale of a law firm from Mr. Riley to Mr. Gorman. It appears that the contract provided that the attorneys would thereafter split all fees in half for all cases transferred to Mr. Gorman. It appears that Mr. Gorman argues grounds to either invalidate the contract, or otherwise request that no fees be awarded to Mr. Riley for the cases transferred. Mr. Gorman represents that this same issue may exist across hundreds of cases." "It appears that Mr. Riley alleges that Mr. Gorman is in breach of their contract to split fees. In response to this alleged breach, Mr. Riley has filed attorney’s fee liens in the cases where Mr. Gorman has not paid pursuant to the contract." The WCAB ordered that current attorney for applicants, Mr. Gorman, and former attorney for applicants, Mr. Riley, meet and confer and provide supplemental pleadings. (Cal. Code Regs., tit. 8, § 10964.) Pleadings shall be verified under the penalty of perjury and may be joint as to any issues where they agree. Pleadings shall include a response to the following issues: 1. The attorneys shall advise the Appeals Board as to whether they can reach a mutual resolution of their dispute, and barring a resolution, whether they can agree on how they wish to proceed, either through mediation, arbitration, or litigation. 2. If the attorneys wish to proceed through litigation, they must clearly identify the stipulations and the issues, including any legal basis to support a conclusion as to disposition of each issue and the appropriate jurisdiction for consideration of each issue. 3. Do the attorneys agree that they are bound by the contract for the sale of the law practice? If not, please explain the basis for any contrary position. 4. Does either attorney seek to rescind the contract for the sale of the law practice? If so, explain the legal basis for the position and identify the proper venue to consider the issue. 5. If the attorneys agree that they are bound by the contract for the sale of the law practice, please address the following issues: - - a. whether they agree that the Appeals Board has jurisdiction to hear the issue of the liens for attorney’s fees; - - b. whether they agree that the Appeals Board has jurisdiction to hear the issue of any split of the attorney’s fees between them; and - - c. whether they agree that the terms of the contract should be considered by the WCAB in deciding any split of attorney’s fee? - - d. if the attorneys do not agree that the Appeals Board has jurisdiction please explain the basis for such disagreement and explain in which court jurisdiction exists to hear their dispute. 6. If the attorneys do not agree that they are bound by the contract for the sale of the law practice, do they agree that any issue as to splitting of attorney’s fees before the WCAB should be deferred pending resolution of the issue of whether the contract should be rescinded, modified, or upheld? "We encourage the attorneys to review the State Bar guidelines on attorney civility and professionalism as they meet and confer to resolve this dispute, and to consider the State Bar rules as to the division of attorneys’ fees. If the parties agree upon a disposition, they may file a joint letter to that effect. "Upon receipt of the supplemental pleadings, the WCAB will consider the responses and take further action as necessary." ...

Floyd Skeren Manukian Langevin, LLP, is pleased to announce that its Business Litigation team, led by Eric E. Ostling (partner), along with David Graziani (associate attorney), successfully defended its client in a complex, seventy-five million dollar lawsuit, in which plaintiffs alleged substantial damages for contract interference and interference with prospective economic advantage. The lawsuit was filed in 2020, and involved allegations against multiple businesses, including FSML’s client. The eight-day trial was held in Los Angeles County Superior Court, and Mr. Ostling obtained a defense judgment on all causes of action against FSML’s client. Mr. Ostling is a partner and the Managing Attorney of the Law Offices of Floyd Skeren Manukian Langevin’s Sacramento office. Mr. Ostling earned his undergraduate degree from the University of California, Davis, before attending the University of the Pacific, McGeorge School of Law, where he earned his Juris Doctor degree. He then obtained his Master of Law and Taxation Degree, also from the University of the Pacific. Mr. Ostling has been Certified as a Specialist in Workers’ Compensation Law by the State Bar of California Board of Legal Specialization since 2006. Prior to joining the Law Offices of Floyd Skeren Manukian Langevin, LLP in 2007, Mr. Ostling spent twenty years litigating civil, employment and workers’ compensation issues before various Federal District Courts, California Superior Courts, as well as the Workers’ Compensation Appeals Board (WCAB). As a result of this litigation experience, Mr. Ostling brings with him a breadth of knowledge on subrogation, employment and civil litigation to allow him to effectively represent Floyd Skeren Manukian Langevin’s clients in the WCAB, Superior Court, or Federal Court. Currently, Mr. Ostling represents employers, insurance entities, self-insured entities and third party administrators before the WCAB on standard workers’ compensation defense, §132a discrimination claims and serious and willful misconduct allegations. Mr. Ostling also represents clients in State and Federal Court proceedings involving subrogation, general liability defense (product defect, premises liability, motor vehicle), and labor and employment law matters (claims of discrimination, harassment, retaliation, privacy violations, wrongful termination, PAGA, and wage & hour violations) ...

The U.S. Department of Veterans Affairs announced that VA hospitals outperformed non-VA hospitals in two major independent, nationwide reviews for patient satisfaction and care quality: - - Patient Satisfaction Survey: VA outperformed non-VA hospitals in the most recent Centers for Medicare & Medicaid Services Hospital Consumer Assessment of Healthcare Providers and Systems star ratings, with 79% of VA facilities receiving a summary star rating of 4 or 5 stars compared to 40% of non-VA hospitals. This represents the ninth consecutive quarter in which VA facilities have outperformed non-VA counterparts. - - Hospital Quality Ratings: In this year’s CMS Overall Hospital Quality Star Ratings, more than 58% of VA hospitals included received 4- or 5-star ratings compared to 40% of non-VA hospitals. This is only the second year VA hospitals have been included in this review, and VA has outperformed non-VA health care in both years. These findings come at a time when Veteran trust in VA outpatient care has reached an all-time record high of 92%, based on a survey of more than 440,000 Veterans. Additionally, these findings are consistent with a recent systematic review that found that VA health care is consistently as good as - or better than - non-VA health care. The new quality assessment reviewed - in a report by Military.com - of U.S. hospitals by the Centers for Medicare and Medicaid Services said that despite the drop in overall scores from last year, VA Under Secretary for Health Dr. Shereef Elnahal told reporters that the ratings were "great news" for veterans and the VA employees who treat them. This year, 35 VA hospitals earned a five-star quality rating, one more than last year, and 15 of the 35 also earned five stars on CMS' patient survey ratings. "Veterans [are] able to see how VA hospitals are comparing to other options they may have in the civilian sector," Elnahal said. "[If] they have Medicare or private health insurance, they can get care at both options. What this will allow is for them to compare, including -- if they qualify for community care, as supported by VA -- choices in the civilian sector." The new star ratings, which can be found on the Care Compare website, mark the second year the VA was included in the database by CMS, a federal agency within the Department of Health and Human Services. The agency gave star ratings to 109 VA facilities, with the remaining VA hospitals or medical centers not being rated, either because they don't meet qualification thresholds or the level of metrics needed to assess them. In addition to the 35 VA hospitals that earned five stars, 27 earned four stars, 23 earned three stars, 14 earned two stars and 10 earned one star -- up from nine last year but with fluctuations on the one-star list. The facilities receiving the lowest ratings were the VA Southern Arizona Health Care System in Tucson; Bay Pines VA Health Care System and West Palm Beach VA Medical Center in Florida; Overton Brooks VA Medical Center in Shreveport, Louisiana; VA New Jersey Health Care System; Syracuse VA Medical Center and VA New York Harbor Health Care System in New York; VA Pittsburgh Health Care System; Providence VA Medical Center in Rhode Island; and VA Caribbean Health Care System in San Juan, Puerto Rico. New to the one-star list were the VA medical centers in Tucson, New Jersey, Syracuse and New York Harbor Health Care. Those that received one star on last year's list but have since increased their ratings include the James J. Peters VA Medical Center in The Bronx, New York; New Mexico VA Health Care System in Albuquerque; and the Memphis VA Medical Center, Tennessee, all of which are now two-star facilities. In Southern California, VA San Diego Healthcare System received five stars, while the remainder were all three stars. In Northern California Palo Alto VA Medical Center, VA N California Healthcare System in Mather, were also rated five starts, with two others rated at three. A one-star rating signifies that the facilities performed well below the average for specific measurements, such as death rates for patients with heart failure, surgical complications and pneumonia; readmission rates for certain ailments; hospital-acquired infections; patient satisfaction; and more. The data for this year's star ratings was collected between July 2019 and March 2023, according to the VA. Among the criticisms of the rankings from advocacy groups and industry associations such as the American Association for Physician Leadership, is that they don't take into account the socioeconomic status of patients or the surrounding community, which may not have access to routine health care and have worse health outcomes for acute and chronic conditions ...

The American Academy of Physician Associates (AAPA) is the national professional society for PAs (physician associates/physician assistants). It represents a profession of more than 178,700 PAs across all medical and surgical specialties in all 50 states, the District of Columbia, U.S. territories, and the uniformed services. It was founded in 1968. AAPA advocates and educates on behalf of the profession and the patients PAs serve. It works to ensure the professional growth, personal excellence and recognition of PAs. We also enhance their ability to improve the quality, accessibility and cost-effectiveness of patient-centered healthcare. AAPA sent a second letter to the American Medical Association (AMA), after the AMA did not respond to the request for a meeting included in AAPA’s July 30th letter. The follow-up continued to underscore AAPA’s intention to collaborate with the AMA on a better path forward and once again urged the AMA to put an end to its so-called "scope creep" campaign. However, the silence from the AMA and its continued spread of misinformation compels AAPA to respond on behalf of the PA profession. The newest communication served as the release of an open letter with 8,000 PA signatures condemning the AMA’s misrepresentation of the PA profession. AAPA claims that the "AMA’s repeated blocking of legislation aimed at expanding access to care and creation of false narrative about the profession reflects a troubling disregard for the urgent needs of patients and the healthcare system. These efforts by the AMA hinder progress and undermine the value PAs bring to patient care. We urge the AMA to stop using divisive rhetoric and instead engage in a constructive dialogue with AAPA" AAPA’s letter also included new survey results that illuminate the negative impacts of AMA’s campaign. The results of the survey reflect the opinions of more than 4,900 PAs. The findings make it clear that this campaign is hurting the PA profession, PA relationships with patients, and the healthcare system at large. Key findings of the survey shared with AMA include the following: - - 96.0% say the campaign has had a negative impact on addressing healthcare workforce shortages. - - 95.2% believe it has negatively impacted efforts to expand access to care for patients. - - 90.4% of PAs report that the campaign has negatively impacted the healthcare system. - - 81.0% report it has had a negative or very negative effect on their ability to provide care. - - 81.7% reported a negative or very negative impact of the campaign on their relationships with patients. - - 91.9% assert it has negatively impacted patients’ trust in the U.S. healthcare system. - - 89.5% believe the AMA’s scope creep campaign has negatively impacted patients’ understanding of PA qualifications to provide care. The AAPA further explains on its Stop Healthcare Obstruction page, that the AMA " 'scope creep' campaign is an effort led by the AMA to restrict the roles and responsibilities of PAs and other healthcare providers. It claims that PAs are seeking to expand their scope of practice beyond their traditional roles, which the AMA says will compromise patient safety and disrupt established healthcare hierarchies." Physician assistant (PA) scope of practice laws vary throughout the United States.Generally, the physician assistant scope of practice in California is more restrictive for PAs than in other states.Gov. Newsom signed Senate Bill 697 (SB 697) in 2019. This bill relaxed chart review and physician signature requirements. It also allowed physicians to create practice agreements with their PAs, as opposed to service agreements. This grants more freedom and flexibility to both parties when providing medical care. Because of SB 697, California does not require on-site or in-person physician oversight. It redefines "supervision" to not require the physical presence of the physician. Although they should be available through electronic communication. PAs must have an active license in the state of California to practice. The AMA's main arguments against PA autonomy include: - - The AMA contends that PAs lack the necessary training and experience to practice independently, and that their actions could pose a risk to patient safety. - - The AMA believes that physicians should maintain ultimate control over patient care, and that PAs should be supervised by physicians at all times. - - The AMA argues that PAs should adhere to the same standards of practice as physicians, and that they should be subject to the same oversight and disciplinary procedures. The debate over the scope of practice of PAs has been ongoing for many years, and it is likely to continue for some time. The outcome of this debate will have significant implications for the future of healthcare in the United States ...

Balfour Beatty Construction, LLC was hired by a local school district to construct a two-story classroom building at an elementary school. In June 2017, Balfour Beatty hired ABI as a subcontractor to perform concrete, framing, and structural steel work on the project and agreed to pay ABI over $700,000 for its work. When ABI began its work on the project in August 2017, it had a workers’ compensation insurance policy issued through State Compensation Insurance Fund. In December 2017, State Fund sent ABI a notice of cancellation, informing ABI that its 2017 2018 workers’ compensation policy would be canceled in January 2018 if ABI did not pay approximately $33,000 in outstanding premiums. ABI received the notice, but failed to pay, and its policy was canceled. ABI refused to pay outstanding insurance premiums charged on a prior policy, since ABI believed (correctly as it turns out) it was being overcharged As a result of the policy cancellation, ABI’s contractor’s license was suspended by operation of law on January 25, 2018, due to ABI’s "failure . . . to . . . maintain workers’ compensation insurance coverage." (Bus. & Prof. Code, §7125.2.) The Contractors' State License Board gave ABI notice of the license suspension on January 29 and informed ABI that its contractor’s license would be suspended if ABI failed to submit a valid insurance certificate or exemption certificate within 45 days. (See § 7125.2, subd. (b) [requiring registrar to give notice of license suspension].) ABI did neither. In mid-March, the Board sent ABI a letter notifying ABI that its license had been retroactively suspended effective January 25 under section 7125.2. Mr. Vo, ABI’s principal,filed an "Exemption from Workers Compensation" form with the Board in early April 2018, declaring under penalty of perjury that ABI does not need workers’ compensation insurance because it does "not employ anyone." This was false. As Vo later admitted at trial, ABI had at least nine employees working on the project at the time. Vo nonetheless decided to falsely claim the exemption because ABI was heavily invested in the project and he did not want to lose money. Upon receipt of the exemption form, the Board reinstated ABI’s license effective April 5, 2018. As for the construction project, Balfour Beatty refused to pay ABI for its work. Accordingly, in May 2019, ABI sued Balfour Beatty and several construction bonding surety companies for fraud, breach of contract, quantum meruit, recovery against bonds, and statutory penalties. Balfour Beatty cross-complained against ABI and Vo for fraud, express indemnity, and equitable indemnity. Balfour Beatty also asserted as its 31st affirmative defense that ABI "was not properly licensed at all times as required by Business and Professions Code section 7031," and as a result "is barred from recovering payment for any labor, materials or equipment furnished to the project." Several years into that litigation, ABI settled its old premium dispute with its workers’ compensation insurer and had the canceled policy retroactively reinstated as part of the settlement. ABI then applied to the Contractors' State License Board for retroactive reinstatement of its contractor’s license, asserting that ABI’s failure to file a certificate of workers’ compensation coverage had been "due to circumstances beyond [its] control," in that the policy had been canceled "unbeknownst to" ABI. The Board accepted ABI’s representation and retroactively reinstated its contractor’s license under Bus. & Prof. Code, § 7125.1. In November 2022, the trial court held a bench trial on the bifurcated issue of Defendants' 31st affirmative defense - ABI’s failure to be duly licensed. During trial, State Fund’s underwriting manager admitted that State Fund had overcharged ABI for premiums, that State Fund generally does not cancel a policy for nonpayment of a bill until the dispute over the bill is resolved, that State Fund should not have canceled ABI’s 2017-2018 policy, and that ABI’s license suspension occurred because of the way State Fund handled the dispute. The trial court found in favor of Defendants on the 31st affirmative defense, concluding ABI was "not 'a duly licensed contractor at all times during the performance' of the contract" and therefore "may not 'bring or maintain' this action 'or recover' compensation for its work." Defendants filed a motion for attorney fees under Civil Code section 1717 and the subcontract’s prevailing party fee provision, and also filed motions to tax costs. After granting the motions in part, the trial court entered an amended judgment in favor of Defendants and against ABI, which included an award of over $270,000 in costs and over $1.55 million in attorney fees to Defendants. The Court of Appeal affirmed in the published case of American Building Innovations v. Balfour Beatty Construction -G062471 (Sept 2024). This appeal involves the interplay of several statutes and what circumstances are "beyond the control of the licensee" for purposes of retroactive license reinstatement. In this case ABI was fully aware it was unlicensed and uninsured, and nevertheless continued its work. The Court of Appeal concluded section 7031 does indeed bar ABI’s current claims. A suspended contractor’s license can be retroactively reinstated under Bus. & Prof. Code, § 7125.1 only if "the failure to have a certificate on file was due to circumstances beyond the control of the licensee." (Id., subd. (b).) In this case, the lapse in coverage was not beyond ABI’s control. The record "demonstrates the policy cancellation occurred because ABI chose not to pay billed insurance premiums. ABI learned of the policy cancellation days after it took effect, yet ABI did not procure replacement coverage until years later when it settled the premium dispute with its insurer". "The insurer’s retroactive reinstatement of the policy following that settlement was essentially meaningless because it occurred long after the statute of limitations ran on any workers’ compensation claims, rendering the coverage illusory." "As the prevailing party in that action, Defendants are entitled to attorney fees; the fee award must therefore be affirmed." ...

Plaintiff T.J. Simers was a well-known and sometimes controversial columnist for Los Angeles Times Communications LLC. In August 2013, plaintiff was demoted to a senior reporter. Shortly thereafter, he obtained a position as a columnist with a rival newspaper and filed this action against The Times for constructive termination and age and disability discrimination in violation of the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.). There have been three jury trials in this case. In the first trial, the jury found defendant was liable for both discrimination and constructive termination. The jury awarded plaintiff $2,137,391 in economic damages for harm caused by his constructive termination, and $5 million in noneconomic damages, without identifying which noneconomic damages were caused by the constructive termination and which were caused by the discrimination. The trial court granted defendant’s motion for judgment notwithstanding the verdict (JNOV) on plaintiff’s constructive termination claim and granted a new trial on noneconomic damages. Both parties appealed. The Court of Appeal affirmed the trial court’s orders and remanded the case for a new trial on damages for plaintiff’s demotion. (Simers v. Los Angeles Times Communications LLC (2018) 18 Cal.App.5th 1248 (Simers).) In the second trial, the jury awarded plaintiff $15.4 million in noneconomic damages. The trial court, however, granted defendant’s motion for a new trial on two grounds. In the third trial, again the only issue was the amount of noneconomic damages plaintiff could recover for his demotion. Plaintiff’s counsel asked the jury to return a verdict between $30 and $50 million, and defense counsel argued that an award between $500,000 and $1 million was reasonable. The jury returned a verdict of $1.25 million. The jury’s verdict was the exact amount of an offer defendant made on December 7, 2021, shortly before the third trial began, to settle under Code of Civil Procedure section 998 (section 998). In June 2022, defendant paid plaintiff $1,292,123.29 in partial satisfaction of the judgment. In May 2022, plaintiff filed a motion for attorney fees, requesting fees of more than $15.5 million. This consisted of $7,860,475, based on hours spent multiplied by hourly rates (the "lodestar" amount), with a 2.0 multiplier based on contingent risk and other factors. The time spent included time on all three trials and on the appeals after the first trial.Plaintiff claimed costs of $577,890.29. Defendant opposed the attorney fee motion. Among other contentions, defendant argued that section 998 precluded any fee recovery after the December 7, 2021 section 998 offer; that plaintiff could not recover fees for work on the second trial because that would reward plaintiff for his counsel’s egregious misconduct; and that plaintiff could not recover fees for the appeals after the first trial because he did not prevail on his appeal and this court’s disposition stated that the parties would bear their own costs. The trial court awarded plaintiff $3,264,906 in attorney fees. The court granted defendant’s motion to tax costs in part, allowing plaintiff to recover $210,882.55 in costs. The defendant and the plaintiff both appealed. After the briefs were filed in these appeals, plaintiff T.J. Simers passed away. The motion of Virginia Simers, the sole beneficiary and executor of Mr. Simers’s will, to substitute herself as plaintiff was granted. The Court of Appeal found "no abuse of discretion in any part of the trial court's order" in the published case of Simers v. Los Angeles Times Communications LLC -B323715 (August 2024) The primary issue is the defendant’s contention that the plaintiff should not have recovered any fees for counsel’s work on the second trial, because the third trial was necessitated by counsel’s misconduct in closing argument at the second trial. Defendant also challenges fees awarded for certain work on plaintiff’s unsuccessful appeal after the first trial. Plaintiff contends he should recover his attorney fees for this appeal, despite the trial court’s order that he cannot recover any fees or costs incurred after he rejected the defendant’s offer of compromise on December 7, 2021, shortly before the third trial, and failed to obtain a more favorable judgment. "Section 998 expressly requires the court to exclude postoffer costs in determining whether the plaintiff has obtained a more favorable judgment than the offer. (§ 998, subd. (c)(2)(A).) That is exactly what the trial court did." The Court off Appeal said it "cannot find any failure to 'adequately' or 'independently' consider the factors defendant raises. The court clearly stated that it considered the misconduct that necessitated a third trial in making its award of fees that 'as a whole are reasonable.' We find no basis to conclude the trial court abused its discretion." ...

On March 2, 2023, a workers’ compensation administrative law judge (WCJ) issued an award of total permanent disability in favor of Mayor based on an industrial injury he suffered in December 2013 during his employment by Ross Valley. Ross Valley filed a petition for reconsideration with the Board on March 23, 2023. The Board’s electronic filing system, Electronic Adjudication Management System (EAMS), showed it was received the same day. Mayor filed his answer to the petition on April 3, 2023. At the time, former Labor Code section 5909 stated, "A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date of filing." On June 5, 2023, 74 days after Ross Valley filed its petition, Ross Valley wrote to the Board, inquiring about the status of its petition and noting that it had been more than 60 days since Ross Valley had filed it. On July 19, 2023, Mayor requested a hearing to enforce the WCJ’s award. On August 14, 2023, 144 days after Ross Valley filed its petition, the Board issued a document titled, "Opinion and Order Granting Petition for Reconsideration." Attached to the Board’s order granting reconsideration was a document titled, "Notice Pursuant to Shipley v. Workers’ Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104 [57 Cal.Comp.Cases 493]." This notice states, "Reconsideration has been sought with regard to the decision filed on March 2, 2023. Labor Code section 5909 provides that a petition for reconsideration is deemed denied unless the Workers’ Compensation Appeals Board (Appeals Board) acts on the petition within 60 days of filing. (Lab. Code, § 5909.) The petition(s) was filed on March 23, 2023. The Appeals Board first received notice of the petition(s) on or about June 15, 2023. (Shipley v. Workers’ Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104 [57 Cal.Comp.Cases 493] [allowing tolling as a matter of due process.].) The Opinion and Order Granting Petition for Reconsideration filed simultaneously with this Notice may be considered timely if issued within 60 days of the Appeals Board receiving notice of the petition(s). (Id.)" Mayor wrote to the Board in September 2023, asking it to clarify why it first received notice of the petition on June 15, 2023, when Ross Valley filed it on March 23, 2023. After receiving no reply, Mayor filed his petition for writ of mandate on January 9, 2024, asking the Court of Appeal to direct the Board to rescind its order granting reconsideration because former section 5909 dictated that the Board lost jurisdiction over the matter 60 days after Ross Valley filed its petition for reconsideration. On January 26, 2024, the Board issued a document titled, "Opinion and Order Granting Petition for Reconsideration and Decision After Reconsideration." The Board then reconsidered and rescinded that order and issued a revised version on February 2, 2024. The revised order stated that the Board was rescinding the WCJ’s award and returning the matter to the trial level for further proceedings. According to the revised order, "due to an administrative irregularity" that was not the fault of either party, the Board did not receive Ross Valley’s petition for reconsideration until more than 60 days after the date Ross Valley filed it, March 23, 2023. EAMS, which the Board does not control, does not give the Board direct notification of filings. Instead, the staff of the district office must manually notify the Board that a party is requesting reconsideration and transmit the case to the Board. Mistakes and delays from "normal human error" can thwart the manual transmission of information from the district offices to the Board. When this occurred, the Board’s practice was to treat the 60-day deadline in former section 5909 as tolled and issue a decision on the petition within 60 days of receipt of the petition. The Board’s order stated that Ross Valley secured a statutory right to reconsideration upon timely filing its petition for reconsideration, so its conduct "is not and should not be at issue." The Court of Appeal agreed with Mayor and the recent decision in Zurich American Ins. Co. v. Workers’ Comp. Appeals Bd. (2023) 97 Cal.App.5th 1213 (Zurich) that the Board’s action after 60 days exceeded its jurisdiction in the published case of Mayor v. Workers' Compensation Appeals Bd A169465 (August 2024). Mayor argues that when the Board failed to act on Ross Valley’s petition for 60 days, former section 5909 dictated that it was denied by operation of law. According to Mayor, the Board’s attempt to grant the petition on August 14, 2023, 144 days after it was filed, was therefore in excess of its jurisdiction and must be set aside. Zurich American Ins. Co. v. Workers’ Comp. Appeals Bd recently accepted this argument in factual and procedural circumstances essentially identical to those here, and Mayor urged the Court of Appeal to follow it. The Board, conversely, seeks to minimize, distinguish, or refute Zurich’s reasoning on a variety of grounds. Thus the Court of Appeal began by reviewing it and the legal principles it applied. After doing so it concluded that for "the reasons Zurich set forth at length, we agree with Mayor that former section 5909 was mandatory and the Board exceeded its jurisdiction in purporting to grant Ross Valley’s petition after 60 days had passed since Ross Valley filed it. It went on to say that the "Board’s various attempts to avoid or defeat Zurich’s reasoning are unpersuasive." Among other reasons the Opinion said "Given the goal of average or substantial, but expeditious, justice in workers’ compensation proceedings, opposing parties need not subordinate their rights to prompt resolution of disputes to accommodate open-ended delays that the Board claims are necessary for it to rule on petitions for reconsideration." In doing so, it overruled anything said in Shipley v. Workers’ Comp. Appeals Bd to the contrary. It must be noted that while Mayor’s petition was pending in the Court of Appeal, the Legislature enacted Assembly Bill 171 which amended former Labor Code section 5909 which now states, "(a) A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date a trial judge transmits a case to the appeals board. [¶] (b)(1) When a trial judge transmits a case to the appeals board, the trial judge shall provide notice to the parties of the case and the appeals board. [¶] (2) For purposes of paragraph (1), service of the accompanying report, pursuant to subdivision (b) of Section 5900, shall constitute providing notice. [¶] (c) This section shall remain in effect only until July 1, 2026, and as of that date is repealed." The former version of section 5909 is currently set to be reinstated on July 1, 2026 ...

California’s Division of Occupational Safety and Health (Cal/OSHA) cited nine employers in Sun Valley within the greater Los Angeles area following efforts to address the growing number of silicosis cases among stone workers in California. As California faces an increase in silicosis cases among stone workers, Cal/OSHA continues ramping up enforcement efforts and today announced citing nine more employers, this time in Sun Valley. The safety violations include over $168,000 in fines. Cal/OSHA cited the following employers: - - Miguel Clavel - Total Fine: $18,320 - - Gasper Marble and Tile - Total Fine: $18,785 - - Jose Sandoval Marble and Granite - Total Fine: $18,785 - - Valley Marble - Total Fine: $18,785 - - Edward Ponce - Total Fine: $18,785 - - Durango Marble - Total Fine: $18,785 - - Nacho Brothers Marble Inc. - Total Fine: $18,785 - - M & M Three Marble Inc. - Total Fine: $18,785 - - LB Quality Stone Experts Inc. - Total Fine: $18,785 The Van Nuys District Office conducted inspections and it was determined that all the employers were in violation of multiple Title 8 Safety and Health Regulations, including failure to use methods to effectively suppress dust and failed to provide their employees with full-face, tight-fitting power air purifying respirators. Cal/OSHA’s workplace safety laws and emergency temporary standard are key components to ensure that workers are safe. Increasing awareness to employers and employees of the dangerous effects of inhaling respirable crystalline silica dust from tasks like grinding, drilling and cutting, can help save lives and avoid incurable health conditions like silicosis, lung cancer and kidney diseases. With cases of silicosis increasing across the state, Cal/OSHA has intensified its enforcement and education efforts. In December of last year an emergency temporary standard was adopted to enhance existing guidelines for respirable crystalline silica hazards. The Occupational Safety and Health Standards Board (OSHSB) voted to readopt the emergency temporary standard at its August 15 meeting. DIR and Cal/OSHA recently launched a bilingual public awareness and education campaign that offers employers and workers resources and information about the proper use of safety equipment and safe worksite practices. The campaign website, worksafewithsilica.org, also provides vital information for workers on workplace safety rights and how to report safety violations. Since 2019, the California Department of Public Health (CDPH) has confirmed a total of 176 cases of silicosis related to engineered stone, including at least 13 deaths and at least 19 individuals who have undergone a lung transplant. A total of 105 of the 176 cases occurred in Los Angeles County, with the remainder occurring in other parts of the state ...

Disbarred 85 year old plaintiffs' personal injury attorney Thomas Vincent Girard,of Seal Beach California, was found guilty this week of leading a years-long scheme in which he embezzled tens of millions of dollars of money that belonged to his clients, some of whom awaited payment for treatment of severe physical injuries.He was found guilty of four counts of wire fraud. Throughout his more than 50-year career, Girardi had two claims to fame: he played a key role in winning a $333 million settlement for residents of Hinkley, California, in their lawsuit against Pacific Gas & Electric, a case that later became the basis for the film "Erin Brockovich." Decades later, he and his wife Erika Jayne were cast on the reality show "Real Housewives of Beverly Hills." According to evidence presented at a 13-day trial, Girardi - a once-powerful figure in California’s legal community - ran the now-defunct law firm Girardi Keese. For years, Girardi misappropriated and embezzled millions of dollars from client trust accounts at his law firm. The scheme involved defendant Girardi stealing millions of dollars in client settlement funds and failing to pay Girardi Keese clients - some of whom had suffered serious injuries in accidents - the money they were owed. In carrying out this scheme, from October 2010 to late 2020, Girardi provided a litany of lies for failure to pay clients and directed a law firm employee to pay previously defrauded clients or other unrelated expenditures. Girardi sent lulling communications to the clients that, among other things, falsely denied that the settlement proceeds had been paid and falsely claimed that Girardi Keese could not pay the settlement proceeds to clients until certain purported requirements had been met. These bogus requirements included addressing supposed tax obligations, settling bankruptcy claims, obtaining supposedly necessary authorizations from judges, and satisfying other debts. Girardi diverted tens of millions of dollars from his law firm’s operating account to pay illegitimate expenses, including more than $25 million to pay the expenses of EJ Global, a company formed by his wife related to her entertainment career, as well as spent millions of dollars of Girardi Keese funds on private jet travel, jewelry, luxury cars, and exclusive golf and social clubs. At the end of 2020, as Girardi and his law firm faced mounting legal problems related to his years-long theft of client funds, Girardi Keese was forced into involuntary bankruptcy. The State Bar of California disbarred Girardi in July 2022. United States District Judge Josephine L. Staton scheduled a December 6 sentencing hearing, at which time Girardi will face a statutory maximum sentence of 20 years in federal prison for each count. Relatedly, co-defendant Christopher Kazuo Kamon, 50, formerly of Encino and Palos Verdes and who was residing in The Bahamas at the time of his November 2022 arrest on a federal criminal complaint, awaits trial in this matter in January 2025. Kamon, the former chief financial officer at Girardi Keese, is charged with multiple fraud counts for allegedly aiding and abetting Girardi’s scheme to defraud clients. Kamon allegedly also embezzled millions of dollars from the law firm’s accounts for his own personal enrichment. Kamon, who remains in federal custody, has pleaded not guilty to these charges. Girardi, Kamon, and David R. Lira, Girardi’s son-in-law and a former lawyer at Girardi Keese, also face federal fraud charges in Chicago. Trial in that case is scheduled for March 3, 2025 ...

Researchers from the Department of Public Health, University of Texas at San Antonio, Department of Medicine, Uniformed Services University of the Health Sciences School of Medicine, Bethesda, Maryland, Department of Human Development and Family Studies, and Pennsylvania State University, State College analyzed all deaths from 1999 to 2023. The data search was then reduced to deaths in which the International Statistical Classification of Diseases and Related Health Problems, 10th Revision code was P81 (environmental hyperthermia of newborn), T67 (effects of heat and light), or X30 (exposure to excessive natural heat) as either the underlying cause or as a contributing cause of death, as recorded in the Multiple Cause of Death file. Data were accessed through the Centers for Disease Control and Prevention’s WONDER platform,which combines death counts with population estimates produced by the US Census Bureau to calculate mortality rates. For each year, researchers extracted age-adjusted mortality rates (AAMRs) per 100,000 person-years for heat-related deaths. The AAMR accounts for differences due to age structures, allowing direct comparisons across time. The approach of analyzing cause-specific mortality rates rather than excess mortality is warranted because the excess mortality methodology is subject to confounding from the COVID-19 pandemic from 2020 to 2023. This study used publicly available, deidentified aggregate data; thus, it was not considered human subjects research. Joinpoint version 5.2.0 (National Cancer Institute) regression6 was used to analyze AAMRs to assess trends and determine elbow points where the trend began to shift to a new trajectory. Results of joinpoint analyses are reported as average annual percentage change (AAPC) in rates with 95% CIs. The resulting new study just published in the Journal of the American Medical Association found that heat-related mortality rates in the US increased between 1999 and 2023, especially during the last 7 years. This study is the first to the knowledge of the authors to demonstrate a reversal of this trend from 2016 to 2023. Recent studies have found exposure to extreme heat to be associated with mortality, with variability by age, sex, and race and ethnicity. Recent research suggests that heat-related mortality risk is increasing globally, but formal analyses of heat-related mortality trends in the US through 2023 are lacking. This study examined trends in heat-related mortality rates in the US population from 1999 to 2023. From 1999 to 2023, 21,518 deaths were recorded as heat-related underlying or contributing cause of death. The warmest average temperature recorded since 1850 occurred in 2023. The lowest number of heat-related deaths in the study period was 311 in 2004, whereas the highest, 2325, was in 2023. The number of heat-related deaths showed year-to-year variability, with spikes in 2006 and 2011, before showing steady increases after 2016. These results align with site-specific data analyzed in a global study that suggest increases in heat-related mortality.As temperatures continue to rise because of climate change,he recent increasing trend is likely to continue. Study limitations include the potential for misclassification of causes of death, leading to possible underestimation of heat-related mortality rates; potential bias from increasing awareness over time; and lack of data for vulnerable subgroups. The researchers concluded by saying "Local authorities in high-risk areas should consider investing in the expansion of access to hydration centers and public cooling centers or other buildings with air conditioning." ...

In 2010, Ari Resnik Resnick and Dr. Ismael Silva, an orthopedic surgery specialist, discussed forming a factoring business to purchase medical accounts receivable, including workers' compensation liens, from healthcare treatment providers at a discount and then collect on them. They agreed to each invest $500,000 into the new company. Silva owned or controlled several entities even if he is not formally named as an officer, owner, or manager, including cross-defendants Healthcare Management Associates, Inc.(HMA), National Intra-Operative Monitoring, Inc. (NIOM), Orangewood Surgical Center, LLC (Orangewood), Starbase, Inc. (Starbase), and American Financial Investment Services, Inc. (AFIS), and non-parties Healthpointe Medical Group, Inc. (Healthpointe) and ProCare. Other than NIOM and Healthpointe, these companies were headed, on paper, by Silva’s relatives, including cross-defendants Mary Aviles for HMA, James Aviles for Orangewood and ProCare, and Silva’s son, Geli Silva (Geli) for AFIS and Starbase, and non-party Medina for ProCare. Healthcare Financial Solutions, LLC was a company that factored healthcare-related receivables. When the parties that formed it, Ari Resnick through R.O.A.R. Management Company, Inc. and Dr. Ismael Silva, Jr. through Healthcare Management Associates, Inc, could not agree how to dissolve it, litigation commenced. HMA sued Resnick, ROAR, and another Resnick-owned company for breach of the HFS operating agreement, theft of trade secrets, and various business-related torts. Resnick and ROAR (the Resnick parties) filed a cross-complaint against HMA and another individual for declaratory relief and breach of fiduciary duty. The Resnick parties assert that during the litigation they learned that a decade’s worth of Silva’s past assurances, including his statements about the lack of merit to numerous prior civil suits and a criminal case against Silva, were untrue. The Resnick parties then filed a first amended cross-complaint (FAXC), asserting Racketeer Influenced and Corrupt Organizations Act (RICO; 18 U.S.C. § 1961 et seq.) claims and a civil fraud cause of action against Silva and others allegedly affiliated with him based on Silva’s alleged misrepresentations. Silva and the cross-defendants named in these RICO and fraud claims either filed or joined in an anti-SLAPP motion to strike portions of the FAXC. Silva and his fellow cross-defendants argued certain allegations of the FAXC described statements made in connection with prior litigation and, thus, were protected activity. They further argued the Resnick parties had not demonstrated that these claims had minimal merit. The trial court denied the special motion to strike. It found the challenged allegations were not protected activity because they related to statements about judicial proceedings and not to statements made in connection with judicial proceedings. As its analysis of the first prong of section 425.16 was dispositive, the court did not address whether the Resnick parties’ claims had minimal merit. Silva and his fellow cross-defendants argued on appeal that the trial court erred because statements made about legal proceedings to interested nonparties are protected conduct under the anti-SLAPP statute, and the Resnick parties failed to show those allegations have minimal merit. The Resnick parties counter that the trial court properly denied the special motion to strike because the challenged portions of the FAXC are only context or evidence of the wrongs complained of, and do not supply the elements of any cause of action. To the extent any of the subject allegations involve protected activity, the Resnick parties have abandoned any effort on appeal to contend such claims have minimal merit. Instead, the Resnick parties argue the appropriate disposition would be to strike only those claims involving protected activity and not their causes of action, which they contend they can state without any stricken allegations. The allegations challenged by the special motion to strike fall into four categories: (1) statements Silva or other cross-defendants made about other lawsuits to interested parties; (2) statements Silva made in other lawsuits (most of which he made in an unrelated family law divorce case); (3) information the Resnick parties learned from the other lawsuits; and (4) allegations that appear to have nothing to do with any prior lawsuit. As to the first category, case law establishes that statements by a litigant about a lawsuit to an interested person are protected conduct and, here, those protected statements supply at least one element of the RICO and fraud causes of action alleged in the FAXC. However, as to the remaining categories, none of the allegations concerning litigation-related statements supply an element of the challenged claims. Accordingly, the Court of Appeal reversed in part, and remand with instructions to strike only the statements in the first category. It affirmed the denial of the special motion to strike as to the remaining allegations in the unpublished case of Healthcare Management v. R.O.A.R. Management -B330809 (August 2024) Of interest to the workers' compensation community are the allegations of the FAXC. The FAXC alleged that as a result of the litigation, the Resnick parties more closely scrutinized Silva’s representations and actions since 2010, " 'connect[ed] the dots,' " and determined cross-defendants had defrauded them. The allegations also show the inter relatedness and entanglement of the multitude of organizations that were involved. And that Silva, his companies, and his family members were involved in lawsuits and a criminal prosecution. The list of "dots" connected by the Resnik parties begins by learning that in 2011, a physician at Healthpointe sued it and Silva in Orange County Superior Court, asserting claims that included fraud and breach of contract. Among other things, the physician alleged that Silva overbilled insurance companies for physician services at Healthpointe, pressured physicians to perform unnecessary medical procedures, and concealed conflicts of interest from Healthpointe patients. The FAXC does not state when the Resnick parties learned of this lawsuit or that Silva made any representations to Resnick about this lawsuit. On October 16, 2013, WorkCompCentral, a workers’ compensation industry publication, reported that Healthpointe was involved in a qui tam case asserting it had overbilled for procedures and devices, used counterfeit medical implant hardware, and paid illegal kickbacks to doctors. The publication further asserted Silva controlled Healthpointe. In response to this article, Silva reassured Resnick there was no problem with HFS continuing to accept business generated by Healthpointe. However, HFS scaled back its purchase of liens from Healthpointe. Silva and Mary Aviles formed ProCare, which accepted lien referrals from Healthpointe. In May 2015, Resnick discovered that Silva, Starbase, and Healthpointe had been named in a civil RICO lawsuit filed by the State Compensation Insurance Fund (SCIF). When Resnick emailed Silva about the lawsuit, Silva assured Resnick that the allegations were not true, but that they might have to deal with bad publicity. In 2017, the Orange County District Attorney filed a felony complaint against Silva and Geli for fraud and kickbacks related to patient and client referrals. The complaint asserted that Healthpointe doctors referred workers’ compensation applicants for urine toxicology tests administered by Christopher King and Tanya Moreland King, and Silva aided the Kings in submitting fraudulent claims for payment. In exchange, the Kings made payments to Starbase. Resnick learned about the lawsuit, but Silva assured Resnick that Starbase and AFIS would cooperate to protect HFS and that Geli, but not Starbase, had been named as a criminal defendant ...

United States Attorney Martin Estrada announced that the U.S. Attorney’s Office for the Central District of California (USAO-CDCA) has implemented a new Voluntary Self-Disclosure, Whistleblower Pilot Program encouraging individuals to disclose criminal conduct undertaken by or through companies, exchanges, and other institutions. The program, which is effective immediately, is designed to prompt individuals to come forward about previously unknown fraud, bribery, and other misconduct. It does so by setting forth conditions under which the voluntary self-disclosure (VSD) of misconduct to the USAO-CDCA, coupled with the agreement to fully cooperate in the investigation of others involved, may make the disclosing individual eligible to avoid prosecution. The program applies to circumstances where an individual voluntarily discloses to the USAO-CDCA information regarding criminal conduct undertaken by or through public or private companies, exchanges, financial institutions, investment advisers, or investment funds involving fraud or corporate control failures or affecting market integrity, or criminal conduct involving state or local bribery or fraud relating to federal, state, or local funds. It is designed to facilitate the investigation of misconduct that is not already known to the USAO-CDCA and target those equally or more culpable in the misconduct, and only offers benefits to those who did not play a leading role in the misconduct, and who are not corporate CEOs or those in similar positions of control or federal, state, or local officials. This Pilot Program provides transparency regarding the circumstances in which USAO-CDCA prosecutors will offer deferred or non-prosecution agreements (DPAs or NPAs) to incentivize individuals (and their counsel) to provide original and actionable information. Receiving such information will help us investigate and prosecute criminal conduct that might otherwise go undetected or be impossible to prove, and will, in turn, further encourage companies to create compliance programs that help prevent, detect, and remediate misconduct and to report misconduct when it occurs. Under the VSD pilot program, the USAO-CDCA will enter into a DPA or NPA in exchange for the individual’s cooperation where the following conditions are met: - - The misconduct has not previously been made public and is not already known to our Office or to any component of the Department of Justice; - - The individual voluntarily discloses the criminal conduct to our Office and not in response to a government inquiry, and prior to imminent threat of disclosure or government investigation; - - The individual is able to provide substantial assistance in the investigation and prosecution of at least one equally or more culpable persons, did not play a leading role in the disclosed conduct, and is prepared to cooperate fully with this Office in its investigation and prosecution of the disclosed conduct, including by providing testimony if requested; - - The individual truthfully and completely discloses all criminal conduct in which the individual has participated and of which the individual is aware; - - The individual is not a federal, state, or local elected or appointed and confirmed official; not an official or agent of a federal investigative or federal law enforcement agency; or is not the CEO or equivalent, or a person who otherwise exercises primary control - regardless of title - over the operations of a public or private company; and - - The individual has not engaged in any criminal conduct that involves: the use of force or violence, any sex offense involving fraud, force, or coercion, or a minor, any offense involving terrorism or implicating national security or foreign affairs and does not have a previous felony conviction or a conviction of any kind for conduct involving fraud or dishonesty. In instances in which an individual discloses such information, but does not meet the above requirements, prosecutors may consider exercising - with supervisory approval - discretion to extend a DPA or NPA. To self-disclose pursuant to this policy, please email: USACAC.VDP@usdoj.gov ...