On August 30, 2014, Isaul Alvarado, an employee of Ventura Coastal, sustained a serious leg injury when he stepped into an uncovered screw conveyor (also known as an auger) located below ground level on Ventura’s premises.

The Division of Occupational Safety and Health conducted an inspection of Ventura’s facility and issued a citation to Ventura under the California Occupational Safety and Health Act for a serious violation of a regulation requiring screw conveyors at or below floor level to be guarded by railings or substantial covers or gratings.

Ventura appealed the citation to the Board, arguing that it did not violate the safety order or, if there was a violation, it was misclassified as serious. The ALJ upheld the citation, finding Ventura committed the violation alleged, and it was properly classified as a serious violation. The ALJ did, however, reduce the proposed penalty.

The Board, on its own motion, ordered reconsideration of the ALJ’s decision regarding the penalty. Ventura also filed a petition for reconsideration by the Board, asserting as grounds for reconsideration that the evidence did not justify the findings of fact, and the findings of fact did not support the decision.

On September 22, 2017, the Board issued its decision after reconsideration, upholding the decision of the ALJ.

On October 20, 2017, Ventura filed a second petition for reconsideration with the Board. It asserted three of the Board’s factual findings were not supported by the evidence, so the decision exceeded the Board’s authority. Alternatively, at a minimum, the violation should be reclassified from serious to general.

On December 15, 2017, Ventura filed a petition for a writ of mandate in the superior court, seeking review of the Board’s September 22, 2017 decision. The Board filed a motion to dismiss or for judgment on the pleadings, asserting the writ petition was statutorily required to be filed within 30 days after the Board’s decision was issued. The trial court granted the Board’s motion and entered a judgment of dismissal.

The Court of Appeal reversed and remand with directions in the published decision of Ventura Coastal LLC, v Occupational Safety and Health Appeals Board.

Ventura’s second petition for reconsideration was not properly filed and had no effect on the timeliness of its petition for writ of mandate. The Board’s decision after reconsideration was filed on September 22, 2017, and Ventura’s time for filing a petition for writ of mandate for review of that decision expired 31 days thereafter, on October 23, 2017 (because October 22 fell on a Sunday). Its petition for writ of mandate was not filed until December 15, 2017.

In light of the recent Supreme Court decision in Saint Francis Memorial Hospital v. State Dept. of Public Health (2020) 9 Cal.5th 710, the time limitation for filing the writ petition is subject to equitable tolling, and the employer should have been allowed to amend its petition to allege facts supporting application of that doctrine.

The requirements for its application present questions of fact that have not yet been addressed by the trial court. This includes questions regarding whether the conduct of Ventura, the reason for its delay in filing the petition, and the length of the delay were reasonable and in good faith. Additionally, if tolling is appropriate, the trial court must determine the length of the tolling period and whether the petition was timely filed, in light of any tolling period that is allowed. The trial court must also address the issues of notice and prejudice to the Board.

A list of pending COVID-19 litigation filed by employees against their employers maintained by NCCI, reports two that have been filed against California employers.

Norma Zuniga, the surviving spouse of Pedro Zuniga, an employee, who died on April 13, 2020, after contracting COVID-19, sued the employer, Safeway and Albertsons on May 13, 2020 in California Superior Court.

For approximately 22 years, decedent Pedro Zuniga was employed by Safeway as a material handler in the produce department at the Safeway Northern California Distribution Center in Tracy, California.

Plaintiff alleges that in March 2020, workers at the Distribution Center began to fall ill with COVID-19. These employees were mandated to continue working not only regular shifts, but also additional shifts (6 days per week, rather than 4 or 5) with longer hours (16 hours per day).

By mid-March 2020, employees at the Distribution Center, including Decedent, began complaining to their supervisors about the dangerous working conditions and their fears associated with the same. These complaints were met by superiors with threats of retaliatory disciplinary action, including the potential for accruing ‘points’ which could lead to termination.

On April 1, 2020, after experiencing a fever and other symptoms, Decedent received a COVID-19 test, which came back positive a few days later. On April 13, 2020, Decedent died in the Intensive Care Unit at Memorial Medical Center in Modesto, California, of cardiopulmonary arrest and hypoxic respiratory failure allegedly caused by COVID-19. I

Plaintiff’s Complaint filed in Alameda County Superior Court in May, asserts six causes of action for: (1) Negligence, (2) Gross Negligence, (3) Violations of Federal Occupational Safety and Health Act of 1970 (29 U.S. Code § 654); (4) Violations of the California Occupational Safety and Health Act of 1973 (Title 8, California Code of Regulations § 3203 and California Labor Code § 6400 et seq.); Fraudulent Concealment of Injury (California Labor Code § 3602(b)(2)); and (6) Wrongful Death.

In July, Safeway removed the case to the United States Federal District Court for the Northern District of California, and filed a 33 page Motion to Dismiss the complaint asserting that the California Workers’ Compensation Act provides the sole and exclusive remedy for the injuries suffered by the employee.

In their motion, Safeway argues that “The rule of workers compensation exclusivity is not any different for the contraction of Coronavirus in the workplace and any resulting harm. To wit, the State of California has established that COVID injuries and death are to be processed via workers compensation. See Executive Order N-62-20.”

Subsequently, the parties completed a private mediation on August 11, 2020, but were unable to resolve the action. Thus, the stay of proceedings in federal court was lifted, and the matter was allowed to proceed.

On November 20, Safeway filed a Motion to Change Venue to the Eastern District. And plaintiff Norma Zuniga filed a Motion to Remand the case back to the state courts. Both motions are scheduled for December 29, 2020.

The Plaintiffs remand motion is based in part on her First Amended Complaint which removed the federal cause of action and any federal law relied upon in her initial complaint, thus rendering Defendants Notice of Removal moot.

The second case reported on the NCCI list, Brooks v. Corecivic of Tennessee the Federal Court granted the employer’s Motion tp Dismiss as to Plaintiff’s claims for negligent supervision and intentional infliction of emotional distress, and denied the motion as to Plaintiff’s wrongful constructive termination claims.

39 year old Robert Zermeno Delara, of Fillmore, was arrested and charged with insurance fraud for allegedly denying his injured employees health and disability benefits to which they were entitled, and failing to notify his insurance carriers of industrial injuries sustained by his employees.

Delara is the owner-operator of two farm-labor contracting businesses located in Ventura County, Pacific Coast Farm Labor and B&R Farm Labor.

Through these businesses, Delara provides farm-labor and harvesting services to local agricultural producers who rely upon him to provide a skilled workforce while adhering to the safety and workplace injury reporting requirements of California law.

Delara is charged with three felony counts of violating Insurance Code section1871.4 for making false or fraudulent statements to discourage injured employees from seeking medical care.

He is charged with four additional felony counts of violating Penal Code section550(b)(3) for concealing or failing to disclose information that would impact his injured employees’ entitlement to benefits.

It is alleged that Delara’s failure to report workplace injuries resulted in premium losses to his workers’ compensation carriers of approximately $555,326, as well as additional costs related to the denial of benefits.

Delara faces a maximum possible sentence of 11years.

His arraignment is scheduled on November 30, 2020,at 9:00 a.m. in courtroom 12 of the Ventura County Superior Court.

Edward Marquez worked for the County of Los Angeles for approximately 20 years as an officer for the Los Angeles County Office of Public Safety. When that agency merged into the Los Angeles County Sheriff’s Department, Marquez was conditionally offered the position of deputy sheriff, provided he could establish that he was qualified for the position by passing a background check, medical examination, psychological examination, and polygraph examination.

Marquez failed the psychological examination and the Sheriff’s Department subsequently demoted him to the position of custody assistant. He was placed in a temporary assignment. He only worked in that position for a few months before he took a medical leave, and applied to the Los Angeles County Employees Retirement Association for a service-connected disability retirement under Government Code section 31720.

The Association granted Marquez’s application for a disability retirement, it found that his disability was not service connected because it related to a personnel decision, not the performance of his job duties.

Marquez challenged that decision by filing a petition for a writ of administrative mandamus. The trial court found that Marquez’s psychological incapacity was service connected because the psychological examination was required by the Sheriff’s Department as a condition of Marquez’s employment.

The Court of Appeal concluded that the court erred in its legal analysis. It reversed the judgment and remand for further proceedings.in the unpublished case of Marquez v. Los Angeles County Employees.

The only questions are whether Marquez’s psychological disability arose “out of” and “in the course of” employment, and whether his employment “substantially contributed” to his disability, as required under section 31270.

Section 31720 requires that a disability applicant’s employment “must contribute substantially to, or be a real and measurable part of, the employee’s permanent disability,” in order to qualify the employee for a disability retirement.

Although he submitted to the fitness-for-duty test required for the position of deputy sheriff, he was not injured during the psychological examination. He was not injured by the examination. And he was not required to take any action as a consequence of the examination.

Marquez suffered psychological distress as a result of the Sheriff’s Department’s decision not to promote him to the position of deputy sheriff. That decision, and Marquez’s reaction to it, did not occur in connection with Marquez’s performance of his job duties.