In 2020, the Association of American Medical Colleges (AAMC) reported that 6% to 7% of the physician workforce left practice settings each year. Recent data suggest that physician turnover has increased substantially; a 2022 survey of more than 500 physicians by CHG Healthcare found that 43% of survey respondents had changed jobs over the course of the prior 2 years, including 8% who retired and 3% who left medicine to pursue nonclinical careers. Another 2023 survey of 500 physicians by the Massachusetts Medical Society found that 27% of survey respondents indicated that they would "definitely" or "likely" leave medicine within the next 2 years, suggesting that high rates of physician turnover are likely to continue. Prior studies have shown that burnout is associated with higher physician turnover. A cross-sectional study of 1840 health professionals (including physicians, nurses, and midwives) employed by public hospitals and rehabilitation clinics in Switzerland found a significant association between burnout and thoughts of leaving medicine. Work-life imbalance was the strongest predictor of burnout symptoms among physicians, but effort-reward mismatch was the strongest predictor for having thoughts of leaving the medical profession. Another study looking at burnout and physician attrition in a cohort of 472 physicians at 2 Stanford University system hospitals who had completed a physician wellness survey reported that individuals who met criteria for burnout were more than twice as likely to have left the institution over the ensuing 2 years as compared with individuals who did not meet criteria for burnout4; importantly, in this study, individuals who reported moderate or greater intention to leave (ITL) the institution within the next 2 years on the baseline survey were at significantly increased risk of attrition during the ensuing 2 years compared with those who did not endorse ITL, suggesting that ITL is a significant risk factor for subsequent physician turnover. And last December new research was published in the JAMA Network Open which addressed the question of what proportion of academic physicians intend to leave their current institution within the next 2 years, and what factors are associated with intention to leave? In this new cross-sectional study of 18,719 academic physicians, approximately one-third reported moderate or greater intention to leave. Burnout, lack of professional fulfillment, and other personal and organizational factors were associated with intention to leave. "These results underscore the importance of the connections between academic physicians and both institutional leadership and mission, as well as point to the need for developing initiatives with a comprehensive approach that considers burnout, professional fulfillment, and other organizational and individual level well-being factors to help prevent physician turnover." In California, about half, or 49.09%, of the state's primary care needs were met in 2022, according to data from the Kaiser Family Foundation. Dr. Scott Robertson, the President and CEO of Pacific Central Coast Health Centers, was asked if there are enough doctors to match the need of our population. "We absolutely do not," he said. "I've been here for 20 years, both practicing primary care and being an administrator with Dignity Health, and during my entire time here we have not had enough." Dr. Robertson says, on the Central Coast, it often takes several weeks to a few months to get an initial appointment with a primary care physician. If there wasn't a shortage, that would be one to two weeks. The American Medical Association expects a wave of retirements as a significant portion of the physician workforce is nearing the retirement age. That's a third of doctors in California ...

The National Council on Compensation Insurance (NCCI) recently conducted its annual survey of insurance executives on top-of-mind issues in the workers compensation (WC) industry. The survey functions as a barometer of current industry sentiment and examines future challenges and opportunities. NCCI uses this extensive input to respond to the needs of its stakeholders in the workers compensation system. The 2023 Carrier Executive Survey includes responses from 101 executives representing 98 companies, including the largest multiline, multistate carriers; as well as many smaller, regional, and single-line workers compensation insurers. Insurers’ top concerns include rate adequacy, the shifting workplace and workforce, medical inflation, and economic uncertainty. While these results are somewhat consistent with NCCI’s recent surveys, executives also noted the emergence of new, complex topics that they are watching closely heading into 2024. This article connects what’s top of mind for carrier executives with current and relevant insights that NCCI delivers. NCCI’s workers compensation data shows a strong and healthy system. NCCI expects a 2023 combined ratio under 100, which would be the 10th consecutive year of underwriting profitability. Several factors give it confidence in this assessment: - - Claim frequency has steadily decreased for two decades. While data showed some volatility during the COVID-19 pandemic, 2022 returned to the long-term decline in claim frequency. - - Medical severity has been moderate in recent years. Even over the last two years as inflation has climbed, price pressure on medical WC claims costs has been slow to rise. Additionally, fee schedules in most states are functioning well as a control mechanism for most categories of medical costs. - - Wages have risen significantly since the pandemic and higher wages generally translate to higher indemnity payouts. However, because premiums are based on wages, higher indemnity costs are naturally offset by increasing premiums. - - Strong employment and wages, declining loss frequency relative to premium, and moderate changes in claim severity all contribute to a continuation of declining loss costs. Since 2019, workers compensation medical severity has grown at 1 percent annually. At the same time, medical indices show that price pressure is moderate, in the 2.5% to 3.5% range annually. That tells us that there are other factors in the mix offsetting overall increases in medical claim costs. The mix in medical conditions treated and the type and volume of medical services all contribute to changes in medical costs. In addition, as mentioned above, fee schedules in most states are functioning well as a control mechanism for most categories of medical costs. Projections from the Centers for Medicare & Medicaid Services (CMS) for the Personal Health Care index remain in the 2.5% to 3.5% range for 2024 through 2031. NCCI’s Quarterly Economics Briefing - Q3 2023 indicates a shift toward a more balanced labor market, rather than a deteriorating labor market. Although employment growth has slowed, it still remains healthy, while wage growth remains elevated compared to the pre-pandemic levels, which in turn supports premium growth. The probability of a recession has diminished in the past quarter as consumer spending remains supported by strong employment levels, real income growth, further capacity for debt, and still-elevated excess savings. NCCI pays close attention to the concerns voiced in its annual Carrier Executive Survey and through its myriad of daily interactions with carriers, regulators, and other key stakeholders. This input helps to shape its plans to bring additional value to the workers compensation system through a set of strategic initiatives: ...

There have been heated battles in courtrooms and appellate courts over a parties contractual right to arbitrate disputes. These battles are largely fought by plaintiffs lawyers seeking to avoid arbitration in favor of jury verdicts in forums such as employment law, PAGA actions, and other arenas. This month the arbitration battled was at issue again in the arena of uninsured motorist coverage which is part of most automobile insurance policies. Kathryn Tornai had an automobile insurance policy with CSAA Insurance Exchange which provided uninsured motorist coverage of up to $300,000 per accident. On February 2, 2022, she was injured in a traffic accident with another driver. In September,Tornai settled with the driver’s insurance carrier for $25,000, his policy limits. Tornai than made a written demand to CSAA Insurance Exchange under the policy for $275,000 - the policy limits of $300,000, less the $25,000 she had already received from the settlement with the UIM. CSAA Insurance Exchange refused to tender the $275,000 demanded, or make any offer. She filed a lawsuit against CSAA Insurance Exchange for breach of contract and bad faith. The policy had a clause in the UM/UIM coverage endorsement, which read in part that the carrier would pay damages for bodily injury caused by the driver of an uninsured vehicle. "Determination whether an insured person is legally entitled to recover damages or the amount of damages shall be made by agreement between the insured person and us. If no agreement is reached, the decision will be made by arbitration." CSAA Insurance Exchange filed a motion in Superior Court to compel arbitration of her underinsured motorist claim. The trial court denied the motion, citing Insurance Code section 11580.2 and several cases. The trial court concluded that her "claims involve different alleged wrongdoing and disputes. She alleges [in her opposition] . . . , and provides evidence demonstrating, that after she made a demand under the Policy, Defendant unreasonably failed to investigate the claim or settle the claim, Defendant has failed to make any effort to address Plaintiff’s request for payment, resolve the matter in any way, or pay any funds whatsoever, even though Plaintiff demonstrated that her medical bills and expenses amount to $30,451.98, so that she is unequivocally entitled to at least that amount." The Court of Appeal concluded that the denial of arbitration was error, and reversed in the published case of Tournai v. CSAA Insurance Exchange -A167666 (Decided on 12/18/23, Certified for Publication on 1/11/24). One of the issues raised by the Plaintiff was a claim the carrier "waived" arbitration for a number of reasons. One of them relied on was Davis v. Blue Cross of Northern California (1979) 25 Cal.3d 418 where the Supreme Court concluded that a health insurance carrier had waived its right to arbitrate a dispute by deliberately failing to advise its insureds of the availability of and procedure for initiating arbitration at the time it rejected the insureds’ claims. However, in Davis the arbitration clause was ‘buried in an obscure provision of a hospitalization agreement, such that the carrier knew the insureds would not be aware of it, and that the insureds were proceeding without legal representation. In this case the Court of Appeal concluded that none of the concerns regarding "basic fairness of the arbitration process" presented in Davis exists in this case and that none of the Plaintiff's claims of waiver were meritorious. Moving then to the arbitrability of the dispute, Insurance Code Section 11580.2 requires insurers to provide coverage for bodily injury or wrongful death caused by uninsured or underinsured motorists. The California Supreme Court in Bouton v. USAA Casualty Ins. Co. (2008) 43 Cal.4th 1190 explained, "section 11580.2, subdivision (f) requires the parties to arbitrate the narrow issues of whether the insured is entitled to recover damages from the uninsured or underinsured motorist, and if so, the amount of those damages." As such, "an insurer’s contractual right to arbitrate the value of a UIM claim does not prevent an insured from filing suit for bad faith." Put slightly differently, "if the insured files a lawsuit for ‘bad faith’ before resolving the UM/UIM claim, the UM/UIM claim is still subject to arbitration, even if the ‘bad faith’ action is not subject to arbitration." The parties here "plainly failed to reach an agreement as to the amount of damages owed, thereby triggering the requirements of section 11580.2, subdivision (f) and the terms of the policy for arbitration of that issue." Therefore that issue must be sent to arbitration pursuant to the policy and section 11580.2, subdivision (f). In declining to order arbitration in this case, the trial court erred. It cited a number of reasons for its ruling, but in our view, none of those reasons justified the denial of defendant’s motion to compel arbitration. The Court of Appeal reviewed those cases including was McIsaac v. Foremost Ins. Co. Grand Rapids, Michigan (2021) 64 Cal.App.5th 418 (McIsaac), which "held that an insurer was entitled to arbitration under . . . section 11580.2(f) where there was a dispute over the amount of damages owed to the plaintiff, even though the plaintiff had brought a bad faith claim against the insurer" "The quoted language plainly supports defendant’s right to compel arbitration of the amount of UIM damages." ...

The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), is the 2013 update to the Diagnostic and Statistical Manual of Mental Disorders, the taxonomic and diagnostic tool published by the American Psychiatric Association (APA). In 2022, a revised version (DSM-5-TR) was published. In the United States, the DSM serves as the principal authority for psychiatric diagnoses. In 1993 Labor Code 3208.3 was amended to require that a compensable psychiatric injury must be diagnosed "using the terminology and criteria of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Third Edition-Revised, or the terminology and diagnostic criteria of other psychiatric diagnostic manuals generally approved and accepted nationally by practitioners in the field of psychiatric medicine." Pursuant to L.C. 3202.3, diagnosis in California industrial injuries must now be made using DSM-V-TR which is the latest edition published by the APA. Financial conflicts of interest are a pernicious problem across medicine, including psychiatry. A study, published in 2006, found that there were strong financial ties between the pharmaceutical industry and DSM-IV panel members in charge of developing and modifying the diagnostic criteria for mental illness. These connections were notably strong in diagnostic areas that had pharmacological treatment as the first line intervention. In 2007, the American Psychiatric Association (which produces the DSM) developed a conflict of interest policy. In 2012, a year before DSM-5 was published, the same authors replicated their earlier study. Unfortunately, the American Psychiatric Association’s new disclosure policy had not been accompanied by a reduction in financial conflicts of interest. In fact, on three quarters of the panels a majority of members had financial ties to the pharmaceutical industry. Once again, the panels with the most conflicts of interest were concentrated among mental disorders where drugs are the first line of treatment. Perhaps this is not surprising: transparency alone won’t prevent academics or researchers from having financial relationships with industry, and more robust measures are needed to protect the integrity of the DSM’s revision process. And this January 2024 a new study was published in the BMJ examined the extent and type of conflicts of interest of panel and task force members of the recently published text revision of DSM-5, the Diagnostic and Statistical Manual of Mental Disorders, fifth edition, text revision (DSM-5-TR). In this newest study, 168 individuals were identified who served as either panel or task force members of the DSM-5-TR. 92 met the inclusion criteria of being a physician who was based in the US and therefore could be included in Open Payments. Of these 92 individuals, 55 (60%) received payments from the industry. Collectively, these panel members received a total of $14.2 million. The authors of the study concluded that "Conflicts of interest among panel members of DSM-5-TR were prevalent. Because of the enormous influence of diagnostic and treatment guidelines, the standards for participation on a guideline development panel should be high. A rebuttable presumption should exist for the Diagnostic and Statistical Manual of Mental Disorders to prohibit conflicts of interest among its panel and task force members. When no independent individuals with the requisite expertise are available, individuals with associations to industry could consult to the panels, but they should not have decision making authority on revisions or the inclusion of new disorders." ...

California Healthline reports that Gov. Gavin Newsom is revisiting California’s phase-in of a nation-leading $25 minimum wage for health workers in the face of a projected $38 billion deficit, less than three months after he approved the measure. But renegotiating wages could threaten a delicate compromise between unions and the health industry. Newsom, whose administration initially opposed the wage deal as too costly, signed the bill, SB 525, into law without knowing the final price tag. His Democratic administration now projects the first-year cost to be $4 billion, though that number has been questioned by labor leaders. Citing data from the U.S. Bureau of Labor Statistics, finance officials said the law would boost wages for at least 500,000 workers who directly provide health care, not including related employees like janitors, groundskeepers, and security staff who also are covered under the law. According to the Department of Finance, it would also increase wages for state employees and boost the cost of health services by increasing Medi-Cal managed care payments. About half that cost is expected to be paid by California taxpayers and the rest covered by federal payments to Medi-Cal providers. The governor’s latest budget asks the state legislature to add an annual trigger making the minimum wage increases contingent on state revenues and to clarify which state employees are included, citing "the significant fiscal impact" of the law. Newsom acknowledged that negotiations are ongoing, a month after his office said talks would begin. The governor insisted he had reservations all along and pledged to work with fellow Democrats, who control the legislature, to make the law more affordable. But the bill he signed did not include built-in triggers, such as those used by his predecessor, Democratic Gov. Jerry Brown, that could have delayed the increase in the face of a budgetary downturn. Newsom did, however, reject a number of spending bills last year. David Huerta, president of Service Employees International Union California and SEIU United Service Workers West, said in a statement Jan. 10 that the union looks forward to working with the administration and the legislature "to ensure that these critically needed workforce investments are implemented while maximizing federal funds and holding the healthcare industry accountable for investing their resources in their workers and in patient care." Yet last month, SEIU-United Healthcare Workers West President Dave Regan asserted the state must "hold fast to its commitment." SEIU-UHW is a local affiliate of SEIU California. Assembly Speaker Robert Rivas, who helped negotiate the earlier deal, wouldn’t comment on reopening the negotiations, and State Sen. María Elena Durazo, the Los Angeles Democrat who introduced the bill, also declined comment. The phase-ins are set to start in June, giving state officials time to roll them back before the new fiscal year. Proponents of the law say it covers about 3,000 employees in the state departments of Corrections and Rehabilitation, Veterans Affairs, and Developmental Services because they operate facilities licensed as hospitals, clinics, or nursing homes. But undoing one portion of the law threatens to unravel the entire intricate compromise between labor and the health industry. For instance, as part of the deal United Healthcare Workers West agreed in a separate memorandum of understanding to halt for four years its repeated attempts to impose regulations on dialysis clinics. The union also previously advocated for health worker minimum wage increases in several California cities. The compromise banned such local boosts for 10 years, a big relief to the California Hospital Association. Finance Department spokesperson H.D. Palmer acknowledged the administration’s calculation did not include offsets such as a reduction in the number of lower-income workers relying on Medi-Cal ...

Ramirez was employed by Visalia Unified School District (VUSD) for more than 20 years. She served as the local union chapter vice president and president between 2016 and 2018. In 2015, VUSD initiated termination proceedings against Ramirez. The parties settled the dispute the next year, and Ramirez agreed to transfer into a position with Visalia Charter Independent Study (VCIS). VCIS "operates traditional and online independent study programs" and "is a dependent charter school, meaning it is part of" VUSD. In either December 2017 or January 2018, a parent complained a student was erroneously assessed an absence. The VCIS principal investigated the complaint, learned the parent was correct, and, when other attendance discrepancies were noticed, initiated a larger investigation. All told, Ramirez incorrectly entered attendance more than 100 times between September 2016 and January 2018, i.e., the entire period she was assigned to perform the task. Ramirez was placed on leave on January 22, 2018, pending further investigation. Two weeks prior to Ramirez’s placement on leave, she attended a school board meeting and criticized district policy - and the superintendent - requiring certain employees to appear on school property to write "book reports. The superintendent investigated "deeper" into Ramirez’s errors. This investigation concluded Ramirez "falsif[ied] school district records," "created numerous transcript and system errors .... creating incorrect and false permanent academic records for students," failed to implement policy on double-checking attendance, and misadvised 'students and parents ...." The investigation placed VCIS’s potential liability for misreporting attendance to the state at nearly $750,000. VUSD subsequently initiated termination charges against Ramirez. Ramirez contested the charges at a hearing provided by VUSD. Numerous witnesses. The hearing officer concluded all charges, except for falsifying records, were substantiated. About one week later, the VUSD school board voted to terminate Ramirez’s employment. California School Employees Association (CSEA) filed an unfair practice charge with the Public Employment Relations Board (Board or PERB). The filing alleged Visalia Unified School District (VUSD) violated Government Code section 3543.5, subdivision (a), by firing an employee - a secretary and local union chapter president - "in retaliation for engaging in protected union activity." The Board, which has exclusive jurisdiction to adjudicate anti-union allegations brought by public employees against public employers, subsequently filed a formal complaint against VUSD. (See § 3541.5.) The formal complaint charged VUSD with violating section 3543 by terminating the employee for engaging in protected activity: serving as a union officer and advocating on the union’s behalf. The matter proceeded to a formal hearing presided over by an administrative law judge. The same parties testified to the same general facts. Among other findings, the Board held VUSD failed to establish "it would have terminated Ramirez regardless of her protected activity because of her ongoing performance issues." The Board recognized "concern with the impact of Ramirez’s errors on students [was] a legitimate one," but believed that was pretextual. The Court of Appeal concluded that the Board correctly interpreted the law, properly found an inference VUSD retaliated against the employee for her union activity, but erred in holding VUSD failed to prove its affirmative defense it would have terminated the employee for poor performance notwithstanding any protected activity in the published case of Visalia Unified School Dist. v. Pub. Employment Relations Bd. - F084032 (January 2023). VUSD asserts on appeal the the Education Code hearing conclusively established sufficient cause to terminate Ramirez. Education Code section 45113, subdivision (b) provides that "the governing board’s determination of the sufficiency of the cause for disciplinary action shall be conclusive." (See Board of Education v. Round Valley Teachers Ass’n (1996) 13 Cal.4th 269, 287 ["school board’s determination of sufficiency of cause for disciplinary action" is conclusive via statute].) The Court of Appeal noted that there is no decisional law discussing the intersection between Education Code section 45113 and the Educational Employment Relations Act (EERA). Education Code section 45113 vests in school boards the power to determine cause. PERB is entitled to review facts and resolve disputes to determine whether retaliation has occurred, but when Education Code section 45113 applies, it cannot override a finding sufficient cause for discipline existed. After reviewing the evidence provided by VUSD the Court of Appeal noted that "Ramirez’s errors, and their discovery, were entirely divorced from any union activity. Those errors were real, not fancied or imagined. The attendant investigation originated not in union activity but in a parent’s legitimate complaint." And it went on to say that "Here, VUSD was legitimately concerned the state would close VCIS due to misreporting attendance. That is a disastrous consequence. Employers need not await disaster to abate catastrophe. (Social Services, supra, PERB Dec. No. 2624-S at. p. 8.) Potential liability and likely recurrence are sufficient to act." The Public Employment Relations Board published decision number 2806-E [46 PERC ¶ 115] was set aside. The Board was directed to modify the decision consistent with this opinion and dismiss the complaint issued against VUSD. (§ 3542, subd. (c).) ...

California has clearly established a very liberal test to resolve the classification of an employee or independent contractor by its passage of AB-5 which codified the A-B-C test. For workers' compensation claims under California jurisdiction, the A-B-C test is appropriate. However employers with out-of-state employees need to be aware that there are other standards. For example, this week the Department of Labor published a final rule, Employee or Independent Contractor Classification Under the Fair Labor Standards Act, to provide guidance on whether a worker is an employee or independent contractor under the FLSA. This rule will help to ensure that workers who are employees are paid the minimum wage and overtime due them, and that responsible employers that comply with the law are not placed at a competitive disadvantage when competing against employers that misclassify employees. Importantly, the final rule rescinds the Trump administration 2021 Independent Contractor Rule, which the DOL believes is out of sync with longstanding judicial precedent and increased the likelihood of misclassification. The new rule’s realignment of the department’s guidance with judicial precedent will reduce confusion, improve compliance and better protect working people. Specifically, the final rule revises the department’s guidance by: - - Returning to the multifactor, totality-of-the-circumstances analysis to assess whether a worker is an employee or an independent contractor under the FLSA. - - Explaining that all factors are analyzed without assigning a predetermined weight to a particular factor or set of factors. - - Using the longstanding interpretation of the economic reality factors. These factors include opportunity for profit or loss depending on managerial skill, investments by the worker and the potential employer, the degree of permanence of the work relationship, the nature and degree of control, the extent to which the work performed is an integral part of to the potential employer’s business, and the worker’s skill and initiative. The DOL claims that the "economic reality test in our new regulations is nimble enough to continue to provide a useful analysis for the broad range of work arrangements that exist today. The final rule will help the Wage and Hour Division to continue addressing misclassification and prioritizing the most vulnerable workers who are being misclassified - because that’s what we must do. In addition, the rule will help to ensure that independent contractors, including freelancers, who are in business for themselves are properly classified. We recognize that independent contractors play an important role in our economy - and this rule won’t change that." "Proper classification of employees and independent contractors results in workers who are employees under the FLSA receiving the hard-earned wages and protections they’re legally entitled to, while also ensuring that independent businesses continue to thrive. Employees across industries and workplaces should have access to both flexibility and essential worker rights." Workers and employers alike are urged to check out the DOL website to learn more about the new rule, which was published in the Federal Register on Jan. 10 and has an effective date of March 11 ...

Former California plaintiffs' personal injury lawyer Thomas Vincent Girardi has been indicted by a federal grand jury for allegedly embezzling more than $15 million from several of his legal clients, and has been just been declared competent to stand trial despite his claim of advanced dementia. Girardi owned the downtown Los Angeles-based Girardi Keese law firm. He was once a powerful figure in California’s legal community until creditors forced his law firm into bankruptcy in December 2020. Along the way he had at least 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." Last year, a Chicago law firm accused star Erika Jayne of acting as a "frontwoman" for her then-husband, Girardi. The court filing called Girardi’s now-shuttered law firm "the largest criminal racketeering enterprise in the history of plaintiffs' law." Girardi gave more than $1 million in gifts and payments to a state bar investigator and his wife, according to a corruption probe released by the State Bar of California. During a 16-month investigation, the State Bar team reviewed over 950,000 documents, issued 23 subpoenas, and interviewed, either voluntarily or under compulsion, 74 witnesses. The report indicated that Girardi intentionally cultivated relationships at many levels in the State Bar to increase his influence in the agency. The report outlines several instances of past State Bar staff exercising poor judgment, ignoring or poorly handling conflicts of interest, and otherwise behaving unethically. None of the individuals identified as engaging in unethical conduct remain affiliated with or employed by the State Bar. Girardi was finally disbarred in 2022. And late last month, a Los Angeles federal judge ruled that Girardi is competent enough to stand trial despite claims he suffers from late-onset Alzheimer’s disease and dementia. The 52 page Order written by U.S. District Judge Josephine Staton was filed under seal until attorneys for both sides are able to decide whether any information - such as health records - should remain confidential. The Order was unsealed on January 5. The decision comes after the federal judge presided over a three-day hearing last year. Girardi's lawyers argued that he resides in a dementia ward because he has no short-term memory. They said he does not recognize them or remember the criminal case. They entered a plea of not guilty on his behalf last year due to competency concerns. However, the Order noted that there "were no contemporaneous anecdotal reports (i.e., text messages, emails, letters) of Defendant’s alleged cognitive decline from 2017 through the end of 2020. The first of such anecdotal reports were made to Defendant’s lawyer and/or experts related to the conservatorship proceeding in 2021." However a number of his acquaintances were interviewed and recalled a decline in his memory and performance after a motor vehicle accident and a subsequent fall both of which caused head injuries. However there were many inconsistencies reviewed in the Order. For example the Judge noted that Girardi claimed difficulty remembering his wife of over 20 years, Erika, However the Order noted that during an interview with an evaluator he "refused to silence his cell phone, and took calls from his wife. Specifically, after having said earlier he did not remember having a third wife, he answered a phone call from the woman who had in fact been his third wife for twenty years, accurately remembering she was leaving for Spain on that day to film a television show and accurately identifying her as an 'ex.' " Dr. Diana S. Goldstein, a psychologist retained by the Government, conducted a psychological and neurocognitive evaluation of Girardi on three consecutive days in late April 2023. Dr, Goldstein, said "Mr. Girardi’s clinical presentation is not one of severe amnesia, but in my opinion a deliberate attempt at deception, an intentional embellishment of mild cognitive impairment for secondary gain, in this particular matter, an adaptive attempt to avoid prosecution." She opined that Girardi "meets both criteria of mental competency to stand trial." Dr. R. Ryan Darby, a neurologist with specialization in behavioral neurology and neuropsychiatry reviewed records and interviewed Girardi over the course of three days. Dr. Darby concluded that Girardi "is malingering or exaggerating the severity of his memory impairment." And found his "patterns of confabulation to be atypical and non-credible." Dr. Darby went on to say Girardi's decline in hygiene was noted to coincide with his forensic evaluations beginning in April 2023. Most notably, Defendant 'began wearing the same burgundy sweater to all evaluations. Dr. Darby found particularly probative the fact that, according to the assisted living staff, Girardi would search out the same clothes day after day. He explained that wearing the same clothes on successive days is found in "[p]atients with memory problems," but that is because they simply "forget to change" clothes. Such patients typically "do not actively seek out dirty clothes to wear," which tends to show intact memory rather than memory problems The Order also noted that the "timing of Defendant’s reported symptoms is highly suspect. On November 21, 2020, Defendant moderated a panel and commented appropriately on the detailed presentations of four other successful trial lawyers. A mere three weeks later, on December 14, 2020, when Defendant was facing a civil contempt sanction and facing accusations that he unlawfully withheld settlement funds from his clients, the very first claim of ongoing mental impairment arose." The Judge concluded the timing of defendant's reported symptoms and Multiple clinical observations by experts support a finding of partial malingering, and that he meets the competency criteria to stand trial ...

In 2020 Nicole DeMarinis and Kelly Patire filed a putative class action against Heritage Bank, asserting nine causes of action for (1) failure to reimburse business-related expenses; (2) failure to provide meal periods; (3) failure to provide rest periods; (4) failure to pay minimum wages; (5) failure to pay overtime compensation; (6) failure to provide accurate itemized wage statements; (7) failure to pay all wages due at separation of employment; (8) violation of the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200); and (9) violation of PAGA. In the PAGA cause of action, plaintiffs allege they are "aggrieved employees" as defined in Labor Code section 2699, subdivision (a), and bring the PAGA action on behalf of the State of California with respect to themselves and all persons employed by Heritage Bank in California during the relevant time period. Upon their hiring, plaintiffs purportedly executed a "MUTUAL AGREEMENT TO ARBITRATE CLAIMS" reflecting the parties' "mutual consent to the resolution by arbitration of all claims, arising out of my employment (or its termination) that the Company may have against me, or that I may have against the Company." The arbitration agreement covers claims for wages and other compensation, and for violations of any federal, state, or other law, statute, regulation, or ordinance. In 2022, the United States Supreme Court issued its much-anticipated decision in Viking River Cruises v Moriana, 142 S.Ct. 1906 (2022), which held the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.) preempts the ruling of Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian) "insofar as [Iskanian] precludes division of PAGA actions into individual and non-individual claims through an agreement to arbitrate." (Viking River, supra, at p. 1924].) Relying on Viking River, Heritage Bank moved to compel arbitration of plaintiffs' "individual claims (including individual PAGA claims)" and to dismiss "any class or non-individual PAGA claims." The trial court denied the motion. Observing that the waiver provision includes an improper waiver of the right of employees to bring "an action in court as proxy or agent of the LWDA und[er] the PAGA," and that the nonseverability clause and poison pill preclude severance of that unenforceable waiver, the court determined the entire agreement to arbitrate is null and void and provides no basis for compelling arbitration of plaintiffs’ individual PAGA claims. The Court of Appeal affirmed the denial of the motion to arbitrate in the published case of DeMarinis v. Heritage Bank of Commerce -A167091 (January 2024). The arbitration agreement in Viking River contained "a severability clause specifying that if the waiver was found invalid, any class, collective, representative, or PAGA action would presumptively be litigated in court. But under that severability clause, if any ‘portion’ of the waiver remained valid, it would be 'enforced in arbitration.' " (Viking River, 596 U.S. at p. ___ [142 S. Ct. at p. 1916].) The court interpreted this clause as permitting the employer to enforce arbitration of just the individual PAGA claim. (Viking River, 596 U.S. at p. ___ [142 S. Ct. at p. 1917].) The last word came just over a year later when the California Supreme Court held in Adolph that an aggrieved employee who was compelled to arbitrate his individual PAGA claim nonetheless maintained standing to pursue his nonindividual PAGA claims in court. (Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104.) Thus the Court of Appeal concluded this waiver provision is unenforceable under Iskanian's principal rule, which "Viking River left undisturbed" (Adolph, supra, 14 Cal.5th at p. 1117), because it requires plaintiffs to waive their right to bring any "representative" PAGA claim "in any forum," arbitral or judicial (see Iskanian, supra, 59 Cal.4th at pp. 360, 383). Adolph recognizes that an individual PAGA claim in a case may proceed to arbitration, while nonindividual PAGA claims in the matter remain in court. (Adolph, supra, 14 Cal.5th at p. 1123; see, e.g., Piplack supra 88 Cal.App.5th at p. 1289. To facilitate this, employers are free to draft a severability clause like the one that Viking River interpreted in conjunction with the PAGA waiver to permit arbitration of just the individual PAGA claim. "But here, Heritage Bank did not do so; instead, it used an arbitration agreement containing a nonseverability clause and a poison pill which together specified that all conditions in the waiver provision are material and may not be modified or severed, either 'in whole or in part,' and that if the waiver provision is found unenforceable, then 'the entirety' of the arbitration agreement is 'null and void.' " Division Two reached a similar conclusion in Westmoreland v. Kindercare Education LLC (2023) 90 Cal.App.5th 967, at page 972. "There, as here, the arbitration agreement included a waiver of 'class, collective, or representative' claims, as well as a poison pill stating in relevant part that 'if the Waiver of Class and Collective Claims is found to be unenforceable, then this agreement is invalid and any claim brought on a class, collective, or representative action must be filed in a court of competent jurisdiction.' " ...

Ariana Miles worked for Kirkland’s, a chain of home décor stores, from about February 2011 to July 2018. She alleges that Kirkland’s unlawfully required employees to (1) remain in the stores during their rest breaks, and (2) work off-the-clock by getting their bags checked after they had clocked out. Based on these two claims, Miles sought class certification for various subclasses for the class period from May 2014 to the present. The district court denied class certification because it found that common issues failed to predominate over individual ones under Rule 23(b)(3) of the Federal Rules of Civil Procedure for both the Rest Break and Bag Check Claims. For the Rest Break Claim, the district court assumed in part that on-premises rest breaks do not automatically violate California law. It then held that in the "absence of evidence that Kirkland’s Stores’ rest period policy, as implemented class-wide, violates California law," it "‘would have to conduct individualized inquiries’ into whether each Subclass member was denied a duty-free rest break while being required to stay on premises." And for the Bag Check Claim, the district court denied certification because "there is insufficient evidence to demonstrate a general practice across Kirkland’s Stores’ California facilities of unlawful bag checks that predominates over individualized inquiries." The 9th Circuit Court of Appeals reversed the district court’s denial of class certification for the Rest Break Claim, affirmed the denial of certification for the Bag Check Claim in the published case of Miles v Kirkland's Stores Inc., 22-55522 (January, 2024). With regard to the Rest Break Claim, under California law, employers may not require employees to work during rest periods. Cal. Lab. Code § 226.7(b). California’s Supreme Court has interpreted Section 226.7(b) to mean that employers must "relinquish any control over how employees spend their break time." Augustus v. ABM Sec. Servs., Inc., 385 P.3d 823, 826 (Cal. 2016) (citing Brinker Rest. Corp. v. Superior Court, 273 P.3d 513, 535-36 (Cal. 2012)). With regard to the Bag Check Claim, under California law, employers must pay employees for all hours worked. Cal. Lab. Code § 1194(a). Rule 23 requires the district court to engage in a rigorous analysis before certifying a class. Rule 23 is designed to promote efficiency and economy of litigation. "A party cannot plead or speculate her way to class certification. She must marshal facts showing, by a preponderance of the evidence, that class issues predominate." She must "show that the common question relates to a central issue in her claim." For a wage and hour claim, an employer’s official policies are relevant to the Rule 23(b)(3) analysis," but a district court abuses its discretion by "rely[ing] on such policies to the near exclusion of other relevant factors touching on predominance." Kirkland’s admitted that it had a "uniform employee handbook policy requiring employees to remain on premises during their 10-minute paid rest breaks until sometime in 2018." But a company’s policy by itself - even if it remains constant during the class period - "is not an elixir that turns canned allegations in a complaint into a pot of class action gold." Courts still need to look at evidence of whether the company consistently implemented and enforced the policy across all employees during the class period. The district court, after examining declarations of nine employees, determined that it "would have to conduct individualized inquiries into whether each Subclass member was denied a duty-free rest break while being required to stay on premises." "But the district court appears to have misinterpreted those declarations. The declarations cited by the district court only discuss store conditions in 2021, not the entire class period from 2014 to the present. These declarations do not establish that Kirkland’s employees could have left the store premises for their rest breaks from 2014 to 2018." And "Kirkland’s consistently enforced that policy across its stores from at least May 2014 to sometime in 2018." The 9th Circuit concluded that the district court erred in denying class certification of the Rest Break Claim, but that it properly denied certification of the Bag Check Claim. It remanded the case back to the district court to reassess the evidence and apply the remaining Rule 23 requirements to the Rest Break Claim, consistent with this opinion ...

A high tech startup out of Cambridge, UK has chosen Bakersfield to locate a high-tech center for clinical trials aimed at developing neural digital therapies. BIOS Health, whose real-time, AI-assisted neural data monitoring platform has won a partnership with the National Institutes of Health and investors including Kern Venture Group, said in a news release that the new center will attract an ecosystem of pharmaceutical and medical device companies, clinicians and clinical trial partners. The plan also calls for hosting neurotech conferences in Bakersfield. This news comes after BIOS Health announced earlier this year it had secured a growth round of funding from key partners, including KVG. BIOS also continues work as the data insights platform for the largest ever study of the human vagus nerve with the National Institutes of Health (NIH), and partners including the University of Minnesota, the Mayo Clinic, and Stanford University started in 2022. The company is partnering with the City of Bakersfield, Kern County, and Kern Venture Group (KVG) to establish a state-of-the-art precision medicine center in Bakersfield, California. BIOS Health is pioneering the technology to read and interpret neural signals in real-time with AI, giving crucial insights previously inaccessible to clinicians, and pharmaceutical and medical device companies. A major challenge in the healthcare industry today is a lack of any clear data and usable insights around the nervous system’s response to novel medicines and medical devices. This leads to high failure rates in clinical trials, costing the industry billions a year, and prevents potentially life-saving treatments from reaching patients - both of which the center aims to address. BIOS has developed adaptive dosing technology, using neural biomarkers and AI, to observe and adjust in real-time, the effects of drugs and stimulations on patients’ nervous systems. For example, during implantation of neural stimulation devices, clinicians and their patients can now access real-time measurements of the effectiveness of their treatment, optimizing the dosing in under 10 minutes compared to what normally takes 12 months or more of trial and error. BIOS’ neural insights platform could hold the key to a new generation of treatments for conditions including hypertension, diabetes, rheumatoid arthritis, and even diseases of the brain itself such as Parkinson’s or Alzheimer’s, and ultimately help millions of patients improve their quality of life. The company will establish its West Coast hub to serve as the premier center for neural clinical trials and R&D, and to accelerate its broader commercialization in the US market. By setting up a center dedicated to real-time neural research for clinical trials, BIOS aims not only to scale up operations and reach more patients faster, but to also create an ecosystem of clinicians, pharmaceutical and medical device companies, and clinical trial partners around this new capability in accessing and understanding neural data. It will also enable BIOS to partner with leaders in clinics, more rapidly commercialize its technology in the clinical environment, and better serve pharmaceutical, biotechnology, and healthcare partners in the United States. BIOS said in it's press release that it chose Bakersfield for its proximity to large customers, access to talent, efficient operational costs, and its existing network of innovation and medical research. In particular, KVG, a partner and existing investor in BIOS, is attracting leading deep tech companies to the area to establish the industries of the future, and has extensive experience in accelerating their growth there. KVG, Kern County, and the City will also bring together their existing networks of local research organizations and large healthcare systems to facilitate the work of the center. Jenni Byers, Interim Director, City of Bakersfield’s Economic & Community Development Department: "BIOS’s work is unique and has the potential to transform modern medicine as we know it today. Bakersfield is a prime West Coast location with an abundant labor force, robust job training programs, and has the resources to support BIOS's growth. We are confident that our support of BIOS will be an important investment in Bakersfield’s and BIOS’s future." This will be BIOS’s second international hub after launching an AI and neuroscience research site in Montreal, Canada, in 2018, and will accelerate its broader commercialization in the US market. BIOS Health is pioneering the technology to read neural data in real-time with AI to power a new generation of precision medicines. The human nervous system carries vast quantities of data, and BIOS’ ability to precisely link nerve activity to specific conditions through the discovery of their neural biomarkers is a game-changer for precision medicine, giving crucial insights previously inaccessible to clinicians and researchers. Similar to the DNA revolution in medicine, ...

California is poised to protect people who work in poorly ventilated warehouses, steamy restaurant kitchens, and other indoor job sites where temperatures can soar to potentially dangerous levels. According to the report by KFF Health News, the state has had heat standards on the books for outdoor workers since 2005, and indoor workplaces are next. If California adopts its proposal in the spring, businesses would be required to cool worksites below 87 degrees Fahrenheit when employees are present and below 82 degrees in places where workers wear protective clothing or are exposed to radiant heat, such as furnaces. If businesses are unable to lower the temperatures, they must provide workers with water, breaks, areas where they can cool down, cooling vests, or other means to keep employees from overheating. Only two other states, Minnesota and Oregon, have adopted heat rules for indoor workers, according to the U.S. Occupational Safety and Health Administration. Nationally, legislation has stalled in Congress, and even though the Biden administration has initiated the long process of establishing national heat standards for outdoor and indoor work, the rules are likely to take years to finalize. Neither workers nor businesses are satisfied with the plan. Some businesses fear they won’t be able to meet the requirements, even with the flexibility the regulation offers. Workers argue buildings should be kept even cooler. Although most instances of heat-related illness are relatively minor, severe cases can result in serious injuries and even fatalities. In California, 20 workers died from heat between 2010 and 2017, seven of them because of indoor heat, according to a 2021 study by the Rand Corp., which analyzed the state’s proposed indoor heat rules. After a record-breaking heat wave in the Pacific Northwest in 2021, Oregon in 2022 adopted protections for indoor workers that trigger when temperatures hit 80 degrees. Minnesota’s threshold temperatures range from 77 degrees to 86 degrees, depending on the type of work. The sheer size of California’s workforce, estimated at about 18 million, could usher in changes for the rest of country, said Juanita Constible, senior climate and health advocate at the Natural Resources Defense Council. California regulators have crafted the indoor rules to complement the state’s protections for outdoor workers. Those say that when temperatures exceed 80 degrees, employers must provide shade and observe workers for signs of heat illness. At or above 95 degrees, they must come up with ways to prevent heat illness, such as reducing work hours or providing additional breaks. The California Occupational Safety and Standards Board, which is charged with setting worker protections, is weighing the regulation that would require employers to cool their buildings with air conditioning, fans, misters, and other methods when the temperature or the heat index hits 82 or 87. Some employees would be exempt from the rule, including employees who work remotely and those involved in emergency operations. On May 18, 2023, the Board held a Public Hearing to consider the addition of new section 3396 to the General Industry Safety Orders of title 8. The Board received oral and written comments on the proposed revisions. On August 4, 2023, another 15-Day Notice was issued. This second 15-Day Notice was a result of further comments from stakeholders and added Board staff consideration. The most recent comment period was closed on November 28, 2023. The board is expected to vote on the rules in March, and they would take effect by this summer, board Chief Counsel Autumn Gonzalez said ...

The Division of Workers’ Compensation (DWC) is now accepting applications for the Qualified Medical Evaluator (QME) examination for April 2024. The examination will be held between April 6 to April 12, 2024. DWC will offer in-person computer-based testing (CBT) for the April 2024 QME examination using Pearson VUE. CPS HR consulting, the vendor managing the QME Exam, will notify interested candidates of the registration and scheduling process. The test sites will be announced on the Registration Notices. Notice regarding Public Access to Information about QME applicants Please note that completed QME applications and registration forms submitted to DWC become records accessible to members of the public for inspection and copying under the California Public Records Act (PRA; Gov. Code, § 7920 et seq.). Under the PRA, the names and contact information such as address, phone number and email address of providers who register to take or pass a QME examination may be disclosed to members of the public; the division does not regulate the purposes for which such information might be used. In addition, DWC makes the name, business address and area of specialty of approved QMEs available to the public through its online search portal. DWC recommends that providers use a business address, not a home (residential) address, on any correspondence with, or on any completed form submitted to the division. The application and registration packet for the QME exam can be downloaded from the DWC website. Applicants may also contact the Medical Unit at 510-286-3700 to request an application via U.S. mail, email, or fax. The deadline for filing the exam applications is February 21, 2024. No applications will be accepted after this postmarked date. For more information, contact the Medical Unit at 510-286-3700 or by email at QMETest@dir.ca.gov ...

UCLA has acquired the former Westside Pavilion shopping mall, which the university will transform into the UCLA Research Park - bringing together scholars and industry experts from around the world to create a nexus for discovery and innovation that will benefit Southern California and beyond. The 700,000-square-foot property, located 2 miles south of the Westwood campus, will initially host two multidisciplinary research centers: the California Institute for Immunology and Immunotherapy at UCLA and the UCLA Center for Quantum Science and Engineering. The vast new space, which straddles the southeast and southwest corners of Pico Boulevard and is connected by an enclosed pedestrian bridge over Westwood Boulevard, features a broad metal and glass facade and open areas with 17-foot ceilings, panoramic windows and expansive atriums inside and out. In addition to research labs and offices, the property has the potential for additional uses, including classrooms, lecture halls and event venues. A fixture of West Los Angeles since its opening in 1985, the Westside Pavilion quickly became a much-visited retail location and gathering spot and continued to evolve over the following three decades. At one time, the site featured a three-level bookstore and multiple movie theaters and appeared as a backdrop to numerous movies and TV shows. Over the past decade, it suffered from a decline alongside other indoor malls across the country, leaving storefronts largely empty. The new UCLA Research Park is made possible in part by an intended $500 million investment, with $200 million already allocated, from the state of California to establish and fund the immunology and immunotherapy institute at UCLA. The institute is also supported by a group of founding donors from the biotechnology, academic, entrepreneurship and philanthropic communities led by Meyer Luskin, Dr. Gary Michelson, Dr. Eric Esrailian, Dr. Arie Belldegrun, Sean Parker and Michael Milken. In addition, Google - which previously leased part of the property - helped enable and support UCLA’s acquisition. Favorable real estate market conditions helped create the historic opportunity for the university as well. "The California Institute for Immunology and Immunotherapy has the potential to reshape the future of science and medicine," said the institute’s founding donors. "We are proud to join UCLA, UC President Drake, Gov. Newsom and the state Legislature in helping make California a world leader in decoding the still-mysterious workings of the human immune system and translating breakthrough discoveries into lifesaving immunotherapies. Launching a research park that joins biosciences with quantum science and engineering - as well as other emerging technologies, like next-generation artificial intelligence - is a once-in-a-generation event, and we are honored to be a part of it all.” The acquisition caps a multiyear effort by Dr. John Mazziotta, vice chancellor for health sciences and CEO of UCLA Health, to establish the institute at UCLA and provide it with leading-edge facilities. "UCLA’s goal is to build the immunology equivalent of Silicon Valley in Los Angeles," said Mazziotta. "Given the university’s expertise and state-of-the-art facilities, we are expecting to attract the world’s best scientists in immunology and immunotherapy, as well as top students." The institute will draw on the expertise of UCLA faculty members, scholars from different higher education institutions, and other leading scientists and practitioners in clinical and biomedical scientific research, including human genetics, genomics, computer science, engineering and information science. Researchers will pursue new tools, treatments and vaccines for cancer, autoimmune and immune deficiency disorders, infectious diseases, allergies, heart conditions, solid organ transplantation and other major health-related issues. The UCLA Research Park will also be home to the UCLA Center for Quantum Science and Engineering, which conducts research in the emerging field of quantum science and technology - including quantum computing, communication and sensing - with the aim of dramatically increasing information processing power by harnessing the unusual behavior of subatomic particles. This latest major acquisition - UCLA’s third in the past 15 months - is part of a transformative expansion designed to broadly extend UCLA’s top-flight resources and institutional expertise, deepen the campus’ connections to Los Angeles’ diverse and dynamic communities, and meet the growing demand for top-tier higher education across the city and region. Each acquisition has been an adaptive and sustainable development, repurposing existing structures for new uses while avoiding the need for major construction. In June of this year, UCLA bridged the gap between Westwood and downtown Los Angeles with its purchase of UCLA Downtown, a 334,000-square-foot building in downtown’s Historic Core. And in September 2022, the university acquired its UCLA South Bay campus, including the 24.5 acres of the former Marymount California University campus in Rancho Palos Verdes and an 11-acre residential site in San Pedro — allowing UCLA to expand its offerings, serve more students and advance the University of California’s 2030 systemwide goals ...

The Workers’ Compensation Insurance Rating Bureau of California (WCIRB) has released its Quarterly Experience Report. This report is an update on California statewide insurer experience valued as of September 30, 2023. Highlights of the report include: - - Written premium through the third quarter of 2023 of $12.1 billion is 2% higher than the same period in 2022. - - The average charged rate for the first nine months of 2023 continues to decrease; it is 5% lower than 2022 and the lowest in decades. - - After five consecutive increases, the projected loss ratio, including the cost of COVID-19 claims, dropped 2 points in accident year 2022. - - After increasing over the prior five years, the projected combined ratio for accident year 2022, including COVID-19 claims, is 6 points lower than in 2021. - - Average claim closing rates have steadily increased in 2022 and 2023 but remain below the pre-pandemic level. - - Projected severity on indemnity claims for 2022 is 4% higher than 2021 and 16% above 2017. - - The average severity in 2022 is the highest it has been in more than a decade, since before the SB 863 reforms. - - Following several years of modest changes, indemnity severity has increased steadily since 2017. Accident year 2022 indemnity severity is 6% higher than 2021 and 23% higher than 2017. Recent growth in indemnity claim severities has been in part driven by above average wage inflation during the pandemic. - - The projected medical severity for 2022 is 2% higher than 2021 and 14% higher than 2017. Some of the recent growth in medical severities may be attributable to claims staying open longer since the start of the pandemic and increasesto medical fee schedule reimbursements effective in early 2021. - - The average paid medical service cost per claim in 2022 is higher than 2021, driven by higher payments per transaction. Some of the paidperclaim growth in 2021 and 2022 is attributable to higher fee schedule reimbursement levels for evaluation and management and medical-legal services effective in early 2021. The full report is in the Research section of the WCIRB website ...

The Labor Code provides in essence that persons employed by the owner or occupant of a residential dwelling are generally not considered employees for purposes of workers' compensation and therefore not entitled to benefits if they work less than 52 hours, or who earned less than $100 in wages for an employer, during the period of 90-calendar days prior to the date of the alleged injury. Those who exceed those limits are employees of the owner or occupant, and a number of cases in the worker's compensation literature illustrate examples, such as in Fichera and Allstate Ins. Co. v. W.C.A.B. (May) (1981) 46 Cal.Comp.Cases 26 (Writ Denied), the Board held that an injured house and animal sitter was included within the definition of an employee even though she had only worked 38 hours before sustaining an injury where the Board found that the contract of employment provided for more than 52 hours of work per week. To assist homeowners in securing coverage for workers' compensation liability, the legislature passed Insurance Code section 11590 in 1977 which provided that no policy providing comprehensive personal liability insurance may be issued or renewed in this state on or after January 1, 1977, unless it contains a provision for coverage against liability for the payment of workers compensation, as defined in Section 3207 of the Labor Code, to any person defined as an employee by subdivision (d) of Section 3351 of the Labor Code. Any such policy in effect on or after January 1, 1977, whether or not actually containing such provisions, shall be construed as if such provisions were embodied therein. However, such coverage shall not apply if any other existing, valid and collectible, workers' compensation insurance for such liability is applicable to the injury or death of such employee. Homeowners' insurance policies in California are the method by which owners and occupants of residential properties secure coverage for industrial injuries. But not all homeowners are able to purchase homeowner policies if they live in areas where they are near the risk of forest fires or other catastrophes such as flooding. In response to insurers' reluctance to write basic property insurance for homeowners who live in high risk or otherwise uninsurable areas, in 1968, the California Legislature enacted the "Basic Property Insurance Inspection and Placement Plan." The 1968 law provides for the 'the equitable distribution among admitted insurers of the responsibility for insuring qualified property for which basic property insurance cannot be obtained through the normal insurance market by the establishment of a FAIR Plan, an industry placement facility and a joint reinsurance association.The FAIR plan provided for coverage of the property only, and did not provide for general liability or workers compensation coverage for the homeowner. Since 1968 the difficulty for homeowners in California to obtain homeowner insurance has substantially increased. Allstate, Farmers, and USAA, have either completely stopped writing new policies or significantly limited their activity in California. Additionally, four smaller insurers: Merastar, Unitrin Auto and Home, and Unitrin Direct Property and Casualty, have announced they will not renew existing policies in California starting in 2024. On November 14, 2019, the Insurance Commissioner issued Order No. 2019-2, which required the FAIR Plan to submit a new revised plan of operation to effectuate various business operational changes to the FAIR Plan, including requiring the FAIR Plan to sell HO-3 policies in California. An HO-3 policy is a homeowner's insurance policy and refers to the name of the standardized insurance form issued by the Insurance Services Office, Inc. On December 13, 2019, FAIR Plan filed a petition for writ of mandate in California Fair Plan Association v. Lara, case number 19STCP05434, challenging Order No. 2019-2. On December 19, 2019, the Commissioner issued Order No. 2019-3, in which the Commissioner promulgated his own revised plan of operation to be followed by FAIR Plan to effectuate the aforementioned business operational changes.On August 19, 2021, the Court entered its judgment granting in part and denying in part the writ petition, directing the Commissioner to set aside those parts of Order Nos. 2019-2 and 2019-3 that require the FAIR Plan to offer a comprehensive HO-3 Policy. In response, on September 17, 2021, the Commissioner issued Order No. 2021-2, which requires FAIR Plan to offer a "Homeowners' Policy" that "insures against, at a minimum, the following perils to the insured property not currently covered under the FAIR Plan's dwelling fire policy: accidental discharge or overflow of water or steam; premises liability; incidental workers' compensation; theft; falling objects; weight of ice, snow, or sleet; freezing; and loss of use, including coverage for additional living expenses and fair rental value." On October 14, 2021, the Fair Plan Association filed another petition seeking to nullify Order No. 2021-2. On November 27, 2023 the Superior Court of the County of Los Angeles denied the Petition for Writ of Mandate in case 21STCV38060. Thus, currently Order No. 2021-2 (as amended) remains in effect. Homeowners who are unable to obtain homeowners insurance will at least be offered a policy with workers compensation and general liability insurance under the FAIR plan, although the coverage is not the equivalent of an HO-3 policy ...

Farmers hired Andrew Rudnicki in 1979. He worked his way up as a trial lawyer to supervising attorney, co-managing the Los Angeles office, and divisional supervisor. In 2013, he was promoted to senior vice president of claims litigation and led Farmers’s branch legal offices. The branch legal offices provide legal representation to Farmers’s insureds. In this role, Rudnicki was responsible for outside counsel that represented Farmers’s insureds, legal bill review, and legal vendors. In 2013, Lisa Sepe-Wiesenfeld reported to Rudnicki, who tasked her with participating on a conference call with multiple attorneys to address some of their gender-based concerns regarding women in leadership/promotions. Participants included Catherine Meta Pugh, who worked in human resources, and attorneys Christine Campbell, Karen Wasson, and Bethany Soule. Rudnicki then had multiple phone conversations with these three attorneys regarding gender issues. On April 29, 2015, Lynne Coates filed a class action lawsuit against Farmers, alleging that "Farmers systematically pays female attorneys less than similarly-situated male attorneys. Not only are male attorneys paid more, they are routinely given higher profile work assignments; are given raises and promotions more frequently; and are recognized for their accomplishments while female attorneys are not. In general, Farmers advances the careers of its male attorneys more quickly while treating its female attorneys more like support staff." In October or November of that year, Wasson became the lead plaintiff in Coates. Farmers retained Paul Hastings, LLP to represent it in the Coates action. In late 2015, Rudnicki went to Farmers chief claims officer, Keith Daly’s office to explain that he had been prepared by Paul Hastings and expected to give a deposition in Coates; he stated that he would be testifying about what he believed were some HR failures, specifically, the fact that the gender disparity issue had been raised and that HR denied his requests for gender demographics and pay disparity documents in 2013. Daly became red-faced and agitated. Daly unhappily said something like "I don’t see that you need to testify about that." Rudnicki replied that he did not get to dictate which questions were asked of him. Thereafter, Daly treated Rudnicki with an icy chill. For example, in February and March 2016, Daly did not ask Rudnicki to speak at Farmers’s big conference, even though he had spoken there every year for the preceding 10 years. At another event, when every other department head was asked to speak, Rudnicki was excluded. The Coates litigation settled in principle on April 13, 2016, before Rudnicki was ever deposed. One month later, on May 13, 2016, Farmers terminated Rudnicki’s employment. When asked for a reason, Daly and Elliott told Rudnicki that there were "HR issues" and that he was responsible for the Coates settlement. Elliott told Rudnicki that his "behavior ha[d] become a risk to the organization." But, Daly did not review Rudnicki’s personnel file before terminating his employment; he was only familiar with his own reviews of Rudnicki. Elliott also did not review Rudnicki’s personnel file before Rudnicki’s employment was terminated. On August 10, 2016, Rudnicki filed a lawsuit, alleging nine causes of action against Farmers. Only five claims survived Farmers’s motion for summary judgment/adjudication: (1) age discrimination, (2) gender discrimination, (3) disability discrimination, (4) retaliatory termination, and (5) a derivative claim for wrongful termination. Following a 24-day trial, the jury found in favor of Rudnicki on his claim for retaliation, awarding him $5.4 million in compensatory damages and $150 million in punitive damages. The trial court reduced the punitive damage award to $18.9 million, but left the rest of the verdict standing. The Court of Appeal affirmed in the unpublished case of Rudnicki v Farmers Insurance Exchange -B321691 (January 2024). Farmers argued that the Court of Appeal should reverse the judgment on liability because (1) Rudnicki could not prevail on a claim for retaliation; and (2) the trial court issued certain erroneous evidentiary rulings. Alternatively, if it does not reverse on liability, Farmers asks it to eliminate or substantially reduce the damage award. The Court of Appeal was not persuaded by these arguments. It found "Farmers engaged in misconduct that can be characterized as moderately reprehensible. It caused physical harm in a foreseeable manner." ...

In his latest newsletter, Bill Zachary reported on "Kinesiophobia" and how well it explained some of the barriers that injured workers face during their journey to recovery from work-related injuries. The path to recovery and return to work for injured workers is fraught with challenges, and one significant obstacle is kinesiophobia - the fear of movement and physical activity due to the anticipation of pain and, particularly, the fear of reinjury. Kinesiophobia is not only a significant barrier to optimum recovery, but it's also one of the major obstacles preventing injured workers from returning to their jobs. It is crucial to identify when Kinesiophobia is impacting recovery and return to work and to take the necessary steps to overcome these barriers. Here are some important facts about kinesiophobia: Discomfort (also known as pain) plays a crucial role in learning and recovery. For instance, sticking one's finger in a pot of scalding hot oil quickly teaches the importance of avoiding such actions. However, in the context of physical therapy and rehabilitation, a certain degree of discomfort may be necessary to stretch and strengthen tissue and regain an optimum range of motion. Acknowledging the distinction between harmful pain and therapeutic discomfort is vital in addressing kinesiophobia and achieving successful recovery and return to work. Pain is a subjective experience. What one individual perceives as excruciating and unmanageable, another may consider uncomfortable but manageable. After an intense workout in the gym, some may find muscle discomfort to be a positive experience (proof of exercising) rather than a negative one. Personal perception of pain can significantly impact treatment and recovery. Recognizing that pain tolerance varies among individuals, it's essential to tailor rehabilitation approaches to consider each worker's pain threshold when developing treatment programs. Physicians and therapists who are not aware of these issues may find that surgery, other treatments, and physical therapy fail when not acknowledging and understanding issues like Kinesiophobia. Sometimes, the anticipation of pain can be more daunting for injured workers than the actual pain they will experience. Each of us brings our unique life experiences and beliefs to the experience of pain. Part of a Physical Therapist’s job is to manage the anticipatory fears of patients and have them perform required movements at a controlled intensity. Once the patient experiences this minor pain, the fear diminishes. Human memory has a fascinating way of moderating our perception of pain. I have little accurate memory of how severe the pain was after my shoulder surgery. I remember that I was "uncomfortable" but do not really remember the severity of the pain in the immediate days following the surgery. You may also reflect on not remembering the severity of the pain after a broken bone or even a stubbed toe. The phrase "Time heals all wounds" can be applied to most people who have had severe pain. Their perception of the pain severity fades over time. Repeated instances of minor pain during home exercises will aid the change in perception from daunting pain to mere discomfort. Digital health, such as Plethy’s Recupe app, are excellent at encouraging exercise adherence, thus creating these memories of minor discomfort. Kinesiophobia is best treated by first recognizing its existence. One of the most common tools for diagnosing and evaluating the level of kinesiophobia is the Tampa Scale of Kinesiophobia (TSK), consisting of 17 self-reporting questions that assess levels of fear, pain catastrophizing, and disability. It is important to note that despite the fear of physical activity, physical activity can also be a form of treatment (and often is the best treatment that will facilitate full recovery). There are specific strategies or techniques to help individuals manage the anticipation of pain effectively. Kinesiophobia can be treated through a multidisciplinary approach, involving a rehabilitation physician, a psychologist, and a physical therapist. The focus of most treatment includes counseling, reassurance, education, relaxation training, mirror therapy, and small incremental steps in treatment. Proven treatment includes mindfulness exercises, cognitive-behavioral techniques, medication for anxiety and limited low-dose analgesics. Active care activities, such as exercises in the home and clinic, are also key to reducing this fear through exposure. Here, adherence is key, especially with home exercises as the patient will spend far more time at home than in the clinic. Thus, Recupe and other digital health show great promise towards the treatment of kinesiophobia. In concluding his article Mr. Zachary said "It is essential for claims professionals to engage in identifying potential cases and intervene to overcome the barriers. If an injured worker refuses to return to light or modified duties, determining the underlying reasons, such as the fear of reinjury, is crucial. Providing this information to the doctor and supporting the appropriate clinic and home treatment can facilitate a more comprehensive approach to rehabilitation and recovery." ...

A storm is brewing in the world of medicine, with drugmakers poised to unleash a price hike on over 500 drugs this January. According to the report in Reuters, tt's a decision that's sending ripples through the entire system, leaving patients, governments, and even the drug companies themselves caught in the tide. Pfizer, Sanofi, and Takeda plan to increase prices on over 500 unique drugs in early January. This includes more than 140 distinct brands of drugs across various doses and formulations. While overall price increases have slightly decreased compared to previous years, newly launched drugs continue to see significant price hikes, reaching record levels. This decision comes despite the Biden administration's efforts to control drug pricing through measures like the Inflation Reduction Act (IRA), which allows Medicare to negotiate prices for some drugs starting in 2026. On the surface, it's a classic case of supply and demand. Drugmakers point to rising costs, from inflation to research and development, as the reason for cranking up the price tags. They argue it's the only way to keep the wheels of innovation turning and new life-saving drugs rolling out of their labs. But not everyone is buying it. Critics see a system rigged against affordability, where transparency is as scarce as a magic cure. They worry about patients caught in the crossfire, forced to choose between their health and their wallets. The burden, they argue, falls heaviest on those already struggling to stay afloat, with potentially life-saving medications becoming another luxury they can't afford. This isn't just a domestic squabble, it's a global game of chess. Governments, tired of footing the ever-growing healthcare bill, are flexing their muscles. The US, for example, recently passed the Inflation Reduction Act, a game-changer that gives Medicare the power to negotiate prices for some drugs. It's a tiny pebble in the pond for now, but its ripples could create waves across the industry. For patients, the future is as murky as a medicine bottle label. Will they have to ration their pills, switch to cheaper (but potentially less effective) alternatives, or simply forgo treatment altogether? It's a chilling proposition, leaving many scrambling for solutions - solutions that, like the perfect pill, remain elusive. So, where does this story go? Will the drugmakers hold firm, clinging to their pricing power? Will governments find the right formula to tame the price monster? How much of this will be reflected in the cost of administrating workers' compensation claims? Only time will tell, but one thing's for sure - this is a story with no happy ending in sight, at least not yet ...