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Rise in Occupational Silicosis Triggers 17 L.A. Lawsuits and Cal/OSHA Action

Advanced occupational silicosis has become more common in the past 10 years due to the rising popularity of engineered slabs for new construction and renovation.

Although engineered stone slabs, when undisturbed, appear to pose little danger to the original manufacturers, retailers, or consumers, they pose a tremendous risk to workers who fashion, shape, cut, polish, and install the slabs. The health risks associated with processing engineered stone appear to be significantly higher than those associated with other silica-containing stone, such as granite or marble, because engineered slabs have a higher silica content (often 90 to 95% as respirable crystalline silica, compared to 30 to 50% in granite or quartz) and because the binders themselves may be toxic.

Raphael Metzger, a toxic-tort lawyer based in Long Beach, has filed 17 lawsuits against dozens of countertop manufacturers on behalf of sick workers or survivors of those who died. He filed his most recent complaint April 18 on behalf of Martin Melendez Murillo, who was diagnosed with silicosis in December after cutting, polishing and installing artificial-stone countertops for 20 years. The complaint alleges, as do previous ones, that the plaintiff was sickened by “inherently hazardous products” that generated “toxic airborne dusts and particulates,” about which workers weren’t properly warned.

Because of the large number of defendants, Metzger has asked the Judicial Council of California to assign all his cases to a single judge. A hearing on his motion is set for June 8.

And workplace regulators in California are drafting an emergency rule to address an epidemic of silicosis – a deadly, preventable lung disease – among fabricators of artificial-stone countertops.

In December, Public Health Watch, LAist and Univision revealed what’s believed to be the nation’s biggest cluster of the disease, in the Los Angeles area. And according to a follow up report by Public Health Watch,the news outlets’ stories – and a petition citing them triggered a burst of activity by California’s Division of Occupational Safety and Health, known as Cal/OSHA.

Since 2019, the California Department of Public Health has identified 69 cases of silicosis among fabrication workers – “likely an underestimate,” the department said in a statement this week.

The men who are falling ill are at the bottom of a chain that includes contractors, kitchen showrooms and home-improvement stores, as well as companies that manufacture the countertops. They work or worked mostly in small, unobtrusive fabrication shops that can move on short notice, making them especially hard to police.

Silicosis is an incurable illness caused by the inhalation of pulverized silica, a common mineral found in the earth’s crust. Artificial-stone countertops, which have become immensely popular with consumers because of their price and versatility, often contain more than 90 percent silica. The mineral is released into the air as a powder when workers cut or grind the slabs.

Cal/OSHA said it is working with the Department of Public Health to develop “a possible emergency regulation to prevent silicosis.” It did not offer details. Any such rule would have to be approved by California’s Occupational Safety and Health Standards Board.

In a petition to the board, the Western Occupational and Environmental Medical Association (WOEMA), which represents more than 500 physicians and other professionals in five states, argued for an emergency silica standard that would, among other things, prohibit dry-cutting of artificial stone and increase penalties for violations.

The petition says that “this emerging epidemic of advanced silicosis cases is a public health problem of great urgency, because irreversible end-stage lung disease has now been shown to develop in fabrication workers after only a few years of poorly controlled occupational exposure.” Stricken workers, it says, may require lifelong care that can run into millions of dollars when a lung transplant is involved.

Public Health Watch has confirmed 40 silicosis cases among countertop fabricators in Southern California alone, most of them diagnosed in the past two years. All of the victims are Latino men; most are younger than 50.

When the stories were published and aired, Public Health Watch and its partners reported 30 silicosis cases among fabrication workers in Southern California: 25 diagnosed at Olive View-UCLA Medical Center in the San Fernando Valley and five diagnosed elsewhere.

Since that time, six more cases have been diagnosed at Olive View, said Dr. Jane Fazio, a pulmonary physician at the hospital. Fazio said she’s learned of five additional cases diagnosed elsewhere – two in Los Angeles, two in San Diego and one in Northern California.

“I expect more,” she said. “I think we’re still at the very tip of the iceberg.”

In a statement Tuesday, Cal/OSHA said it had joined the California Department of Public Health “to identify employers throughout the state who are likely to be engaged in cut stone, artificial stone, and fabrication operations and have employees exposed to this harmful health hazard. As a result, 814 employers were identified and every single one of them have been contacted by Cal/OSHA just this last week.”

The businesses received letters in both English and Spanish, pointing out the dangers of silica and their obligations to protect employees and report the use of a carcinogen. Silica exposure can cause lung cancer as well as silicosis.  

“For employers who do not report their carcinogen use, they will be placed in the top tier for a randomized targeted enforcement inspection,” the agency said. “Our message is clear and simple: comply with our regulations, seek free assistance from our Consultation Services, or possibly face a Cal/OSHA Enforcement inspection.”

NLRB Reverses Discipline Rules for Egregious Protected Activity Misconduct

The National Labor Relations Board has been repeatedly asked to determine whether employers have unlawfully discharged or otherwise disciplined employees who had engaged in abusive conduct in connection with activity protected by Section 7 of the National Labor Relations Act.

Notably, the legal standard for making this determination has been radically changed twice, in the last few years.

In a July 2020 decision issued in General Motors LLC, 14-CA-197985 369 NLRB No. 127 (2020), the National Labor Relations Board modified the standard for determining whether employees have been lawfully disciplined or discharged after making abusive or offensive statements – including profane, racist, and sexually unacceptable remarks – in the course of activity otherwise protected under the National Labor Relations Act (Act).

In that case Charles Robinson worked as a union committeeperson at the automotive assembly facility in Kansas City, Kansas. He was suspended for three separate incidents of abusive conduct. In the first incident, Robinson yelled and cursed at a manager during a conversation about employee training. In the second incident, Robinson made racially offensive comments during a meeting with managers and other union representatives. In the third incident, Robinson played sexually explicit and racially offensive music loudly during a meeting with managers and other union representatives.

The NLRB held that the union representative’s conduct was not protected by the National Labor Relations Act (NLRA) because it was “so egregious” that it outweighed the employee’s right to engage in protected concerted activity.

The standard announced in General Motors replaced a variety of setting-specific standards – one for encounters with management (Atlantic Steel), another for exchanges between employees and postings on social media (a “totality of the circumstances” test), and a third for offensive statements and conduct on the picket line (Clear Pine Mouldings). These tests were based on the view that employees should be permitted some leeway for impulsive behavior when engaging in activities protected under the Act. They often resulted in reinstatement of employees discharged for deeply offensive conduct.

This is a long-overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace,” said Chairman John F. Ring. “For too long,” he added, “the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. Our decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.

Chairman Ring was joined by Members Marvin E. Kaplan and William J. Emanuel.

However In Lion Elastomers, 372 NLRB No. 83 (2023) the National Labor Relations Board overturned this recent Board precedent from the previous Trump administration Board and reinstated the use of a trio of context-specific standards for determining whether an employer violates the Act by disciplining an employee for abusive conduct.

While the Lion Elastomers case was pending, the Board issued General Motors on July 21, 2020. Following the issuance of General Motors, the Board filed an unopposed motion with the Fifth Circuit, asking the court to “remand the instant case to determine whether General Motors affects the Board’s analysis in this case.” On June 15, 2021, the court granted the Board’s motion.

After remand, NLRB reversed the General Motors decision. It said “We have carefully reviewed the statements of position and the General Motors decision. We have decided to overrule General Motors and to return to earlier Board precedent, including Atlantic Steel, applying setting- specific standards aimed at deciding whether an employee has lost the Act’s protection.”

In justifying this reversal, the Biden administration board said “General Motors marked a sweeping change in Federal labor law. The Board reversed four decades of unbroken precedent: Atlantic Steel was decided in 1979; Clear Pine Mouldings, in 1984. But, the policy rationale that informs those decisions goes back much farther in the history of the Act. More than 35 years ago, the Board observed that it had ‘long held . . . that there are certain parameters within which employees may act when engaged in concerted activities.’ Consumers Power Co., 282 NLRB 130, 132.”

And “the General Motors Board broke sharply with well- settled precedent, but its reasons for abandoning the set- ting-specific standards governing employee misconduct committed during Section 7 activity are unpersuasive.”

“We are not persuaded by the claim of the General Motors Board that the setting-specific standards are unacceptable because they assertedly yielded “unpredictable” results.”

“Finally, we reject the claim of the General Motors Board that the setting-specific standards ‘penalize employers for declining to tolerate abusive and potentially illegal conduct in the workplace.’ “

The dissenting opinion in Lion Elastomers by Member Marvin E. Kaplan noted “Today, despite the fact that it seems unlikely that the application of General Motors would affect the outcome of this case, and notwithstanding the serious due process concerns involved, my colleagues do not even consider that approach. Rather, they reflexively scrap the Board’s carefully considered change in direction without giving it time to prove its worth.”

Lion Elastomers applies retroactively to all “abusive conduct” cases currently pending. Employers now have two standards.

Specific Findings Required for Ordering One Carrier to Pay CT Benefits

Apolinar Del Hoyo claimed to have suffered continuous trauma injury while employed by Archstone Harborview. In the Findings and Award of July 21, 2020, the workers’ compensation judge issued various findings in the three case numbers for the three cases he filed.

Relevant to the instant petition for reconsideration, the WCJ found “in ADJ10259448 only” that “the responsible insurance carrier per the requirements of Labor Code section[s] 5500.5 and 5412 is the Irvine Company, insured by Federal Insurance.

In addition, the WCJ ordered that “the parties shall confer informally to resolve the remaining issues of permanent partial disability and need for further medical treatment. Should the parties be unable to resolve this issue, the case may be returned to the WCJ for further hearings.”

Defendant Irvine Company filed a timely Petition for Reconsideration of the WCJ’s decision. Irvine contends that in ADJ10259448, the WCJ erred in failing to explain why he determined Irvine is the “responsible insurance carrier” for the cumulative trauma from June 3, 2007 through June 29, 2015, pursuant to Labor Code sections 5412 and 5500.5. Irvine further contends that the WCJ erred in failing to issue a Summary of Evidence and in failing to analyze the facts and applicable law.

Reconsideration was granted, the Findings and Award of July 21, 2020 was rescinded, and the matter was remanded in the panel decision of Del Hoyo v Archstone Harborview – ADJ8555171 (MF), ADJ10259448, ADJ11129372 (May 2023).

Preliminarily, the panel observed that “WCAB Rule 10962(b) provides, in relevant part, that the WCJ’s Report must include ‘a discussion of the support in the record for the findings of fact and the conclusions of law that serve as a basis for the decision or order as to each contention raised by the petition [for reconsideration].’ (Cal. Code Regs., tit. 8, § 10962(b), italics added.)

Here, the WCJ’s Report is not compliant with Rule 10962(b) because it copies the WCJ’s Opinion on Decision and thus is unresponsive to each contention raised by Irvine’s petition for reconsideration.”

There are other problems with the record in this matter. The Minutes of Hearing (‘MOH’) of June 25, 2020 reflect that there were no disputed issues in case numbers ADJ8555171 or ADJ11129372. Yet these two cases proceeded to trial and the WCJ issued findings in them. It appears that the inclusion of these two cases in the trial record and in the Findings and Award of July 21, 2020 needlessly complicated this matter. In further proceedings, the parties and the WCJ should limit the record to ADJ10259448 if it is the only case involving unresolved issues.”

Even considering ADJ10259448 in isolation, the record is problematic. The alleged cumulative trauma injury in ADJ10259448 was identified in the MOH as a ‘claimed’ injury. Thus, the issue of injury apparently remained in dispute in ADJ10259448. However, the WCJ did not make a final finding on injury in ADJ10259448, and it also appears the WCJ issued a non-final Order in ADJ10259448. (See Capital Builders Hardware, Inc. v. Workers’ Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658, 662 [81 Cal.Comp.Cases 1122].) In short, the Findings and Award issued by the WCJ on July 21, 2020 did not satisfy the requirements of Labor Code sections 5313 and 5815.”

Turning to the key issue of defense liability for the (alleged) cumulative trauma injury in ADJ10259448, Labor Code section 5500.5(a) provides that liability for cumulative injury claims is limited to those employers who employed the employee during a period of one year immediately preceding either the date of injury, as determined pursuant to Section 5412, or the last date on which the employee was employed in an occupation exposing him or her to the hazards of the occupational disease or cumulative injury, whichever occurs first.

Section 5500.5(a) speaks to the issue of determining liability for a cumulative injury, while section 5412 speaks to the issue of the date of cumulative injury for purposes of applying the Statute of Limitations. The two issues are distinct but related, in that part of the analysis to determine liability under section 5500.5(a) requires an analysis of the date of cumulative injury under section 5412. (See County of Riverside v. Workers’ Comp. Appeals Bd. (Sylves) (2017) 10 Cal.App.5th 119 [82 Cal.Comp.Cases 301] (“Sylves”).)

Section 5412 requires a convergence of two elements: (1) the date when the employee first suffers disability; and (2) the employee’s acquisition of knowledge that such disability was caused by the employee’s present or prior employment.

In this case, the WCJ’s Report relies on the April 10, 2018 medical report of Dr. Whalen, the Panel Qualified Medical Evaluator (“PQME”) in chiropractic medicine, to support the WCJ’s conclusion that “there was one long cumulative trauma,” which “continued to occur during the two years and ten months that applicant was employed by the terminal employer, the Irvine Company.”

The panel concluded by stating that “the WCJ never squarely addressed or determined the two necessary elements of section 5412, which must be addressed to determine liability under section 5500.5(a).

SJDB Voucher Not Required in Total Disability Case

Angel Hernandez was employed by the California Highway Patrol and filed an industrial injury claim for cardiovascular disease and a stroke. In 2021 the parties entered into a Stipulations with Request for Award for permanent total disability. The WCJ issued an Award pursuant to the Stipulations with Request for Award.

In 2022 the State Fund refused to provide Hernandez with a Supplemental Job Displacement Benefit Voucher, correctly stating that Labor Code section 4658.7 applies only if the injury causes permanent partial disability. SCIF pointed out that applicant is not permanently partially disabled, but is in fact permanently totally disabled. The matter proceed to trial on the SJDB issue.  

A February 10, 2023 Findings and Award found that applicant is entitled to a Supplemental Job Displacement Benefit (SJDB) voucher when it failed to offer regular, modified, or alternative work following the receipt of the September 13, 2018 report of David W. Baum, M.D.

The State Fund Petition for Reconsideration was granted, and the Findings and Award was rescinded in the panel decision of Hernandez v State of California Department of Highway Patrol – ADJ11168233 (May 2022).

Defendant contends that applicant is not entitled to a SJDB voucher because applicant did not suffer permanent partial disability but rather suffered permanent total disability.

Applicant argued that he was not claiming he is entitled to a Supplemental Job Displacement Benefit Voucher in order to avail himself of the education-related retraining or skill enhancement contemplated by section 4658.7. He can never work again, so retraining would be pointless.

Instead, Applicant is claiming entitlement to a Supplemental Job Displacement Benefit Voucher only because that is the method promulgated by statute to apply for the $5,000.00 Return-to Work Supplement payment.

Labor Code, section4658.7(b)1 provides that an injured worker is entitled to a SJDB voucher if the industrial injury causes permanent partial disability and the employer fails to make an offer of regular, modified, or alternative work. (§ 4658.7(b).) Section 4658.7(b)(1) and (2) and Rule 10133.31(b) provide that the offer of regular, modified, or alternative work must be made no later than 60 days after receipt of the Physician’s Return to Work & Voucher Report (Form DWC-AD 10133.36) and must last for at least 12 months. (§ 4658.7(b)(1) and (b)(2); Cal. Code of Regs.tit. 8, § 10133.31(b).)

A different Appeals Board panel in Sanchez v. Forever 21, Inc. (ADJ11573028, December 5, 2022) [2022 Cal. Wrk. Comp. P.D. LEXIS 333] and Schmidt v. Fremont Swim School (ADJ12311590, December 7, 2022) [2022 Cal. Wrk. Comp. P.D. LEXIS 342] opined that a Physician’s Return to Work & Voucher Report is not necessary so long as applicant makes a showing that he sustained permanent partial disability and the employer failed to show that it offered regular, modified, or alternative work.

Here, Dr. Baum’s report serves as notice to defendant that applicant sustained permanent disability, which would trigger defendant’s duty to offer regular, modified, or alternative work within 60 days, or a SJDB voucher, if the permanent disability is partial.

Dr. Baum opined that applicant sustained a 55% whole person impairment (WPI) as a result of his stroke and a 50% WPI due to hypertensive cardiovascular disease, for a combined WPI of 78%.  It is unclear what percentage of permanent disability results from Dr. Baum’s impairment rating. If Dr. Baum’s impairment rating results in permanent partial disability, then the WCJ is correct that the SJDB statute is triggered at that time. If Dr. Baum’s impairment rating results in permanent total disability, then defendant is correct that applicant is not entitled to a SJDB voucher.

The panel went on to say that “applicant’s position that it is not seeking a voucher for its retraining purposes but merely as a step to obtain a Return-to-Work supplemental benefit is concerning. While we understand that the Return-to-Work supplemental benefit requires the issuance of a SJDB voucher, seeking a voucher in name only without intending to benefit from its intended purpose of retraining a worker is not proper. (See Finch v. Chicos (ADJ10123459, June 17, 2020 [2020 Cal. Wrk. Comp. P.D. LEXIS 233] [Appeals Board affirming the WCJ’s conclusion that a voucher “in name only” is not sufficient to trigger the applicant’s eligibility for the Return-to-Work Supplemental Program benefit].) We also note that applicant is represented by a guardian-ad-litem because he is deemed incompetent and we question the propriety of a voucher in circumstances where the applicant is deemed incompetent.”

Screenwriters Union Fighting Off Industry Wide AI Adoption

If you turned on your TV last night, you might have noticed that the late night shows have suddenly stopped. That’s because the Writers Guild of America went on strike. And according to a report today in the New York Times, there isNo End In Sight for Hollywood Strike.” The writers and entertainment companies remain far apart on several key issues, including money, and the standoff could last for months.

The Writers Guild of America is the joint efforts of two different American labor unions representing writers in film, television, radio, and online media: The Writers Guild of America, East, headquartered in New York City and affiliated with the AFL-CIO The Writers Guild of America West, headquartered in Los Angeles.

The Writers Guild of America, which represents 11,500 screenwriters, went on strike after contract negotiations with studios, streaming services and networks failed.

The Alliance of Motion Picture and Television Producers, which bargains on behalf of studios, streaming services and networks, has maintained that it hopes “to reach a deal that is mutually beneficial to writers and the health and longevity of the industry.” Privately, however, member companies say they are prepared to weather a strike of at least 100 days. The most recent writers strike, which began in 2007 and ended in 2008, lasted that long.

According to the NY Times, writers also want companies to agree to guarantee that artificial intelligence will not encroach on writers’ credits and compensation. Such guarantees are a nonstarter, the studio alliance has said, instead suggesting an annual meeting on advances in the technology. “A.I. raises hard, important creative and legal questions for everyone,” the studios said. “It’s something that requires a lot more discussion, which we have committed to doing.”

And according to a report by the Guardian, the fact that the studios haven’t agreed to that is a tell – “a dark indication of corporate America’s barely concealed enthusiasm for the idea of maximizing the use of algorithms in their ongoing quest to push labor costs down to zero.”

And the Guardian goes on to say “This strike matters for everyone. The story of the past half century of American society has been this: declining labor power, rising corporate power, rising inequality, collapsing democratic institutions. Reviving the power of working people, through organized labor, is the key to stopping our big national plummet to hell.”

And a report in CourtHouse News says that “generative artificial intelligence is already prompting widespread unease throughout Hollywood. Concern over chatbots writing or rewriting scripts is one of the leading reasons TV and film screenwriters took to picket lines earlier this week.”

AI is terrifying,” said Danny Strong, the “Dopesick” and “Empire” creator. “Now, I’ve seen some of ChatGPT’s writing and as of now I’m not terrified because Chat is a terrible writer. But who knows? That could change.”

AI chatbots, screenwriters say, could potentially be used to spit out a rough first draft with a few simple prompts (“a heist movie set in Beijing”). Writers would then be hired, at a lower pay rate, to punch it up.

CourtHouse News also says that screenplays could also be slyly generated in the style of known writers. What about a comedy in the voice of Nora Ephron? Or a gangster film that sounds like Mario Puzo? You won’t get anything close to “Casablanca” but the barest bones of a bad Liam Neeson thriller isn’t out of the question.

AI has already filtered into nearly every part of moviemaking. It’s been used to de-age actors, remove swear words from scenes in post-production, supply viewing recommendations on Netflix and posthumously bring back the voices of Anthony Bourdain and Andy Warhol.

Experts say the struggle screenwriters are now facing with regenerative AI is just the beginning. The World Economic Forum this week released a 296 page Future of Jobs 2023 Report predicting that nearly a quarter of all jobs will be disrupted by AI over the next five years.

Dramatizing their plight as man vs. machine surely doesn’t hurt the WGA’s cause in public opinion. The writers are wrestling with the threat of AI just as concern widens over how hurriedly regenerative AI products has been thrust into society,” was the conclusion of the CourtHouse News report.

Silicon Valley AI Company Makes InsurTech Top 100 List

According to recent research, AI-based software revenue is expected to climb from $9.5 billion in 2018 to $118.6 billion in 2025 as companies seek new insights into their respective businesses that can give them a competitive edge.

The InsurTech100 2022 List is a ranking that recognizes the innovators that are providing solutions to address the most pressing challenges faced by the insurance and InsurTech industry today. One of the 100 on the list is based in Santa Clara, and just announced a new product for general liability claims.

CLARA Analytics is an AI as a service (AIaaS) provider that it says improves casualty claims outcomes for commercial insurance carriers and self-insured organizations. The company was founded in 2017 and is headquartered in California’s Silicon Valley.

Artificial Intelligence as a Service (AIaaS) is the third-party offering of artificial intelligence (AI) outsourcing. It enables individuals and companies to experiment with AI for various purposes without a large initial investment and with lower risk.

It showcased the company’s product suite and latest innovations, including the new general liability solution, at RISKWORLD, which was held May 1-3, 2023, at Georgia World Congress Center in Atlanta. It announced its AI platform for general liability claims. The addition of general liability completes CLARA’s casualty lines risk and exposure platform.

The company’s product suite applies image recognition, natural language processing, and other AI-based techniques to unlock insights from medical notes, bills and other documents surrounding a claim.

CLARA’s predictive insight gives claim professionals augmented intelligence to help them reduce claim costs and optimize outcomes for the carrier, customer and claimant.

CLARA says its customers include companies from the top 25 global insurance carriers to large third-party administrators and self-insured organizations.

CLARA’s casualty lines AI platform ingests both structured and unstructured claims data, using natural language processing to extract detailed information from claims reports, medical records, and legal correspondence. Tailored specifically for general liability claims, the platform uses machine learning algorithms to identify variables that correlate with litigation, medical escalation, and other outcomes that drive higher costs.

CLARA says it is leveraging its proven models and applying key learnings to its entire range of products to serve the general liability line of business:

– – CLARA Optics reduces document review time with automated medical records and legal demands transcription, extraction and organization to highlight important claim details.
– – CLARA Triage helps claims managers to focus on high-risk claims to determine the optimal path to resolving them while fast-tracking low severity claims.
– – CLARA Litigation offers insights on attorney performance and settlement guidance to help payers reach amicable settlements and avoid costly litigation.

A panel of analysts and industry experts voted from a longlist of over 1,400 companies produced by FinTech Global. The finalists on the InsurTech100 2022 List were recognized for their innovative use of technology to solve a significant industry problem, or to generate efficiency improvements across the insurance value chain.

Returning to this year’s list is Majesco, a SaaS software provider that they say empowers the success of the insurance industry’s digital transformation. The company acquired SaaS-based InsurTech Global IQX and also partnered with CyberCube to support growing demand for cyber insurance products

Another company on this year’s list, has also had a busy year, hyperexponential empowers actuaries, underwriters and executives to do what they do best with next generation pricing intelligence software. The company partnered with Canopius, a global specialty (re)insurer, to deploy its pricing platform.

According to research by FinTech Global, there were a total of 78 InsurTech seed deals in the first half of 2022 across 27 countries. With 66% occurring in the first quarter. The United States accounted for the most InsurTech seed deals in H1 2022 with 25 deals, a 32% share of total deals. Brazil and India were the second most active InsurTech seed deal country with six deals each this half.

$22M Donation to UCSD Health for AI Healthcare Launch

With artificial intelligence rapidly changing health care, UC San Diego Health is planning to treat the situation with a level of attention usually reserved for rocket launches and wildfires.

The Rancho Santa Fe Review reports that a $22 million donation from philanthropists Joan and Irwin Jacobs will help pay for a mission control center inside its main La Jolla medical center to consolidate the ever-growing streams of digital information that are increasingly providing actionable information at the bedside.

Hundreds gathered in a university auditorium Friday, May 5, to listen to the latest thinking about how this technological transformation is likely to unfold, with Irwin Jacobs sitting in the front row, soaking up every detail.

The digital communications pioneer with a doctorate in electrical engineering said during a lunch break that it was clear in the planning stages of UC San Diego Jacobs Medical Center, the state-of-the-art La Jolla hospital that now bears his name, that the proliferation of information technology in medicine would eventually require more coordination.

“It was kind of decided, well, we’re getting all of this data, but none of it’s really connected. We need to get it into one place including not just the hospital system, but also from outside, and then have a few different types of people in there who can react very quickly to what they’re seeing,” Jacobs said.

These days, everything from bedside monitors to air-handling equipment produces endless digital information, and recent advances in artificial intelligence are showing a stunning capacity to sift through this mountain of ones and zeros to find patterns that can spot errors and, increasingly, predict who might be about to develop a new set of symptoms.

A good example, said Dr. Christopher Longhurst, the university health system’s chief medical and digital officer, is an emergency room program that is using AI to analyze bedside and electronic health record data to predict which patients are at the greatest risk of developing sepsis, a runaway reaction to infection that can cause deadly organ failure.

“We implemented this algorithm six months ago, and our emergency department, in the last six months, we’ve had the lowest observed (versus) expected mortality and sepsis that we’ve ever seen at UC San Diego Health,” Longhurst said.

Other efforts are underway to use AI to predict which patients will develop bowel obstructions after surgery, and a remote telemonitoring program is now receiving data from the homes of more than 2,500 patients with chronic diseases.

More recently, UCSD has two systems nationwide to enable AI-enhanced recommendations for its doctors to review when responding to patient emails.

And this is just the beginning. Every new application, Longhurst notes, will generate its own set of notices. Asking bedside workers to parse this flow is impossible, meaning that a separate team of professionals will be necessary to decide what needs to be passed along to caregivers and what can wait.

Panelists who spoke during the May 5 symposium were asked what about the coming AI health care revolution excites them the most in the near term. Most said they were very optimistic about the ability of algorithms to help free up medical professionals’ time by assisting with routine tasks, such as responding to patient emails for medical testing and other routine communication that piles up during the work day and impinges on personal lives.

Having help grinding through the grist of modern health care, in theory, should free up time for meaningful conversations with patients.

Rochelle Walensky Abruptly Resigns as C.D.C. Director

Rochelle Walensky, the director of the Centers for Disease Control and Prevention who guided President Joe Biden’s response to the Covid-19 pandemic from his first day in office, is leaving her post. Her announcement comes days before the Biden administration plans to end the public health emergency in place since early 2020, and at a time when Covid fears have receded and life mostly returned to a pre-pandemic normal.

According to the report on her announcement by Politico, last summer, Walensky launched a reorganization of the CDC, acknowledging that its “performance did not reliably meet expectations” during the pandemic.

She said she wanted to modernize the agency and rehabilitate its reputation.

In a statement, Biden said, “Walensky leaves CDC a stronger institution, better positioned to confront health threats and protect Americans.”

In an internal email announcing her departure, Walensky wrote that she would step down on June 30.

She gave no specific reason for the decision to resign, writing that “at this pivotal moment for our nation and public health, having worked together to accomplish so much over the last two-plus years, it is with mixed emotions that I will step down.”

Walensky touted the administration’s Covid response, the CDC’s decision to declare racism a serious public health threat and its efforts to contain mpox among the accomplishments on her watch.

“I have never been prouder of anything I have done in my professional career,” she wrote.

Walensky had earlier this year notified top White House aides, including Chief of Staff Jeff Zients, that she planned to leave, an administration official granted anonymity to discuss her departure said. The two ultimately settled on making the decision public around the end of the Covid public health emergency.

Still, her resignation blindsided many health officials throughout the administration, many of whom had expected her to stay on at least through the end of the year – if not the end of Biden’s first term.

And Walensky in her email offered little in the way of a transition plan, writing only that “more information will be shared with you about next steps for CDC.”

Georges Benjamin, executive director of the American Public Health Association, said Walensky’s departure will not adversely impact the government’s transition out of the public health emergency.

“But it’s more turmoil for the agency, it’s always unfortunate when a leader leaves,” Benjamin said. “I think she did a good job and I’m sorry to see her go.”

But her critics, including many Republicans in Congress, see Walensky as responsible for confusing public health messaging that didn’t help end the pandemic, but did reduce trust in the government.

And public trust in the CDC has dropped dramatically since April 2020. Scores of lawsuits have been filed by critics of its pandemic performance challenging the agency’s authority, raising the very real question of whether Americans will listen to federal health officials’ recommendations the next time a national health crisis rolls around.

Walensky sought to regain lost ground by being more forthcoming about the CDC’s failings in recent months.

May 1, 2023 – News Podcast

Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: Failure to Prove Regulatory Compliance Ends Employer Medical Control. Arbitration Agreement Legalese & Unreadable Fine Print Is Not Unconscionable. Toluca Lake Man Accused of Impersonating a Doctor for Several Years. Bakersfield Pain Management Physician Sentenced for Tax Evasion. $1.47M Settlement Resolves Poultry Processor Wage Theft Citations. New Federal Workers Comp Program OIG Audit Shows Epic Failure. LA Metro Union Station Resolves “Long List” of ADA Violations. Legislature Seeks to Lower Burden of Proof to Discipline Physicians. ChatGPT Answers Beat Physicians in JAMA Internal Medicine Study. Sedgwick Launches OpenAI GPT-4 Tools for Work Comp Claims.

WCAB Finds Rule 10133.31(c) is “Antithesis of Substantial Justice”

Gary Gibson was employed by Apex Envirotech when he sustained a hearing loss industrial injury. The injury resulted in a permanent partial disability, but did not result in any period of temporary disability, and he lost no time from work.

His WCAB action was filed after he was laid off from work. The parties proceeded to trial solely on the issue of provision of the supplemental job displacement voucher (SJDV). The parties stipulated to all relevant facts and presented the matter solely as a question of applying the facts to the law.

Defendant argued that per Rule 10133.31(c), defendant was not obligated to provide a return to work offer to applicant because applicant did not lose time from work, and thus, no SJDV is due. (Cal. Code Regs., tit. 8, § 10133.31(c).)

Applicant argued that defendant either misconstrues the regulation, or in the alternative, the regulation exceeds the scope of its enabling statute in requiring applicant sustain compensable temporary disability as a precursor to receipt of a voucher.

A Findings and Award issued on February 15, 20231, which found that defendant was not excused from providing applicant a return to work offer per Rule 10133.31(c) (Cal. Code Regs., tit. 8, § 10133.31(c),) when the reason that applicant missed no time from work was because applicant had been laid off prior to filing latent injury claims. Although there were two injuries plead, the parties stipulated to a single joint award of permanent disability based upon the fact that the hearing loss was inextricably intertwined. As the permanent disability was intertwined, only one voucher was awarded.

Reconsideration of this award was denied for the reasons stated by the WCJ in his Report. The case is Gibson v Apex Envirotech ADJ13603159 – ADJ16641427 (April 2023).

For injuries occurring on or after January 1, 2013, Labor Code section 4658.7 controls whether defendant is liable to provide a supplemental job displacement voucher (SJDV).

In Dennis v. State of California (April 30, 2020) 85 Cal.Comp.Cases 389 [2020 Cal. Wrk. Comp. LEXIS 19] (Appeals Board en banc), the Appeals Board held: “[A]n employer’s inability to offer regular, modified, or alternative work does not release an employer from the statutory obligation to provide a SJDB voucher.” “Thus, absent a bona fide offer of regular, modified, or alternative work, regardless of an employer’s ability to make such an offer, and regardless of an employee’s ability to accept such an offer, an employee is entitled to a SJDB voucher.”

Here, defendant argues that applicant never lost time from work and thus, defendant is deemed to have provided a job offer per Rule 10133.31(c).

Rule 10133.31(c) provides that “An employee who has lost no time from work or has returned to the same job for the same employer, is deemed to have been offered and accepted regular work in accordance with the criteria set forth in Labor Code section 4658.7(b).”

According to the WCJ “This argument creates a hyper-technical application of the rule that does not comport with the purpose of the rule or its enabling statute. The purpose of the SJDV is to assist people who are not working, regain employment. When you read the entire Labor Code and regulatory scheme together, it is clear that Rule 10133.31(c) presumes that applicant is actually working for the employer. If applicant continues to work throughout the duration of litigation in the same position and never left that position due to the injury, the employer is deemed to have offered regular work.”

In this case applicant was not working at all during the pendency of this litigation. The reason applicant technically lost no time from work was because he was laid off years prior to filing a latent injury claim. These facts do not excuse defendant from providing either a return-to-work offer, or a SJDV.”

Hyper-technical arguments tend to be the antithesis of substantial justice.

“As to applicant’s argument that Rule 10133.31(c) is invalid, the rule appears well intentioned, but it may exceed the scope of its authorizing statute. The intent of the rule is based upon a commonsense question: Why would you give someone a return to work offer if they never left work?”