Pete Romo worked as a firefighter for three different fire departments. He was a volunteer firefighter for Marinwood from 1989 to 1991 and the San Antonio Volunteer Fire District in Sonoma County from 2002 to 2006. From 2006 through trial of his WCAB case, he was employed full time as a paid firefighter for the City of Mill Valley. While working for Mill Valley, Romo was diagnosed with prostate cancer.

Romo filed a claim for workers’ compensation benefits with each of the three fire departments for which he had worked. Mill Valley and San Antonio stipulated that the statutory presumption that cancer suffered while employed as a firefighter arises out of the employment would apply to them if the elements set forth in labor code section 3212.1 were proven.

Marinwood contested the application of the presumption. It was established in the 1950s as an all-volunteer fire department. By the 1980s, it had a paid fire chief and two paid professional firefighters for each shift. At the time Romo was a volunteer firefighter there, Marinwood had a total of seven paid firefighters and 24 volunteer firefighters.

The WCJ concluded that Romo was “an active volunteer firefighting member of [Marinwood] from mid-1989 to early 1991 within the meaning of Labor Code sections 3212.1 and 3361” and that he “is entitled to the extension of the presumption under Labor Code section 3212.1, since he is within 120 months of the ‘last date actually worked in the specified capacity.’ ” The WCAB denied Marinwood’s Petition for Reconsideration.

The Court of Appeal affirmed the WCAB in the published decision of Marinwood Community Services v WCAB (Ramos)

Section 3352 excludes certain categories of persons from the term “[e]mployee” as used in the workers’ compensation statutes. Subdivision (i) of that section generally excludes volunteers. Section 3361 is a nuanced exception to this exclusion for “Each member registered as an active firefighting member of any regularly organized volunteer fire department…” Marinwood contends it is not (and was not when Romo was a volunteer firefighter there) a “regularly organized volunteer fire department” within the meaning of section 3361.

The Court of Appeal concluded that the language “volunteer fire department” in section 3361 is ambiguous in regard to whether it extends to a department comprised predominantly, but not exclusively, of volunteers. “The WCAB’s interpretation of section 3361 is reasonable, and we give it weight. Its interpretation is consistent with the purpose of the statutory scheme.”

Marinwood next contends the WCAB misconstrued section 3212.1 presumption terms that it “shall be extended to a member following termination of service for a period of three calendar months for each full year of the requisite service, but not to exceed 120 months in any circumstance, commencing with the last date actually worked in the specified capacity.” Marinwood argues the above-quoted sentence should be applied separately to each employer for whom a firefighter worked.

The WCJ and WCAB interpreted the language in subdivision (d) “last date actually worked in the specified capacity” to mean the last day worked in the capacity of a firefighter for any employer. The Court of Appeal agreed and concluded that “the WCAB’s interpretation of section 3212.1 in this and other cases furthers the purpose of the cancer presumption.”

Daniel Ramirez sustained an injury to his lower leg and ankle in the course of his job as an office assistant for the State Department of Health Care Services. The claims were administered by the State Compensation Insurance Fund.

Ramirez settled his case by stipulations providing him with further medical treatment for the injury. The treatment included a gym/swim membership, and, over the course of about one and a half years.

His physician prescribed another 12 sessions of acupuncture. The utilization review recommended that the requested treatment be denied. Ramirez appealed the utilization review denial under the independent medical review process. IMR upheld the UR decision.

Ramirez appealed the decision of the independent medical review to the Board. The grounds for the appeal were that the independent medical reviewer “may have been subject to a material conflict of interest that is in violation of Section 139.5,” and the “determination may have been the result of bias on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability.”

Ramirez wanted discovery to determine whether the doctor performing the independent medical review was biased or had a conflict of interest. He also raised constitutional violations regarding the UR/IMR process which were beyond the jurisdiction of the WCAB. The appeal was taken off calendar pending resolution of the constitutional issues.

Ramirez filed a petition for writ of review with the Court of Appeal. His constitutional challenges were rejected in the published case of Ramirez v WCAB.

The Court concluded that the Board had no jurisdiction to review a utilization review that was alleged to be defective for failure to follow the medical treatment utilization schedule. Whether the utilization review followed the medical treatment utilization schedule is directly related to a determination of medical necessity. By statute, a review of a determination of medical necessity is limited to the medical professionals performing the independent medical review.

On the constitutional challenges, the Court affirmed the prior decision of Stevens v. Workers’ Comp. Appeals Bd. (2015) 241 Cal.App.4th 1074 on these issues.

Safety violations citations issued to staffing firm Barrett Business Services following a September 28, 2011 carbon monoxide warehouse incident in Anaheim that sent eight temporary workers to the hospital were upheld by the Occupational Safety and Health Appeals Board (OSHAB).

For months prior to the incident, the workers contracted by Barrett Business Services to package fruits and nuts in L&L Foods’ warehouse in Anaheim had complained to their supervisor that they were experiencing headaches, nausea and other health issues caused by forklifts operating in an enclosed area with poor ventilation. Neither the Ontario-based staffing company nor host employer L&L Foods took any action.

On the day of the incident, a forklift driver became ill and was hospitalized for carbon monoxide (CO) poisoning, while seven other workers were taken to the hospital for treatment.

Cal/OSHA tested the facility and found the workers were exposed to CO levels of 250-350 parts per million, which exceeded the ceiling limit of 200 parts per million. Following an investigation, Cal/OSHA issued citations in 2012 to both Barrett Business Services and L&L Foods for numerous safety violations, including willful violations for failing to take action on known hazards.

Both employers filed appeals protesting the citations; L&L Foods settled its case on April 22, 2013. Following a lengthy appeal process that started in 2013, an administrative law judge last April denied Barrett’s appeal and imposed total civil penalties of $80,050.

Barrett objected to the appeal decision and on August 29, 2016, filed a petition for reconsideration with the Appeals Board.

The Board rendered its decision last December, citing evidence gained from Cal/OSHA’s investigation that the employer did not properly train its employees, disregarded workers’ reports of health hazards and failed to monitor the worksite.

The evidence revealed that L&L Foods had sealed all of the vents at the facility to prevent vermin from entering the establishment. Barrett did not assess the safety conditions for the enclosed environment, failed to control the increased carbon monoxide levels in the workplace and continually disregarded worker’s reports of headaches and nausea from the fumes.

The citations issued included three violations for one general, one willful general and one willful serious category violation. A willful violation is cited when the employer is aware of the law and violates it nevertheless, or when the employer is aware of the hazardous condition and takes no reasonable steps to address it.

A serious violation is cited when there is a realistic possibility that death or serious harm could result from the actual hazard created by the violation.

A general violation is cited when an accident or occupational illness resulting from violation of a standard would probably not cause death or serious physical harm, but would have a direct or immediate relationship to the safety or health of employees.

Peter Sylves was employed by the County as a deputy sheriff. He took a service retirement and then worked for the Pauma Police Department on a reservation belonging to the Pauma Band of Luiseno Indians.

He filed an application for adjudication of claim on July 16, 2014. He claimed a continuous trauma for “hypertension, GERDS [gastroesophageal reflux disease], left shoulder, low back and both knees.”

After a hearing, the WCJ issued his findings of fact. Under the heading titled “Statute of Limitations,” he found: “Pursuant to Labor Code section 5500.5, applicant’s continuous trauma is limited to the last year of injurious exposure, even if it is with the Pauma Tribal Police.” The WCJ found that Sylves’s knee and left shoulder injuries, his GERDS, and his sleep disorder were not compensable injuries arising in and out of employment. However, he also found that Sylves’s hypertension and back injury were compensable and arose from employment with the County.

Both parties requested reconsideration. An opinion and decision after reconsideration found “substantial medical evidence support[ing] industrial injury to [Sylves’s] left shoulder, bilateral knees, GERD and sleep disorder.”

With respect to the statute of limitations, the WCAB explained that the time in which to file a claim did not begin to run until a doctor told him the symptoms for which he had been receiving treatment were industrially related; since medical confirmation did not occur until 2013, Sylves’s 2014 application was timely. The WCAB further found that section 5500.5 “is not a Statute of Limitations but provides for a supplemental proceeding in which multiple defendants have an opportunity to apportion liability.” Finally, it agreed with Sylves that section 5500.5 cannot limit liability to the Pauma Police Department in this case because the WCAB lacks jurisdiction over the tribe.

The Court of Appeal granted review  in the published case of County of Riverside v WCAB and Peter Sylves in order to provide better clarity regarding the application of section 5500.5. It affirmed the WCAB decision after reconsideration.

Limiting the liability of the defendants in a workers’ compensation case is not the same as prescribing the time in which that case can be filed. Since neither the language nor the history of section 5500.5 evidences a concern with the limitations period for filing an application for workers’ compensation benefits, the court rejected the County’s suggestion that the WCAB violated section 5500.5(a) when it found Sylves’s claims to be timely. Section 5500.5(a) does not relate to the statute of limitations for filing an application for adjudication of benefits.

Section 5500.5(a) provides that “In the event that none of the employers during [last year] of occupational disease or cumulative injury are insured for workers’ compensation coverage or an approved alternative thereof, liability shall be imposed upon the last year of employment exposing the employee to the hazards of the occupational disease or cumulative injury for which an employer is insured for workers’ compensation coverage or an approved alternative thereof.”

The WCAB lacks jurisdiction over federally recognized Indian tribes. The fact that the Pauma Police Department is not subject to the WCAB’s jurisdiction means the department was not “insured for workers’ compensation coverage or an approved alternative thereof.” Consequently, liability is imposed on the next employer in line that had workers’ compensation insurance. In this case, that employer is the County.

A legal battle has pitted a major national insurer and its pharmacy benefit manager (PBM) against each other in dueling legal actions in litigation that seeks class action status that could include tens of thousands of claimants.

Anthem is one of the nation’s largest health insurers with more than 38 million members. Express Scripts handled more than 175 million claims for Anthem in 2015 alone, according to the complaint.

The saga starts when Anthem sued Express Scripts last March, accusing it of excessive pricing and operational failures. It also sought the right to terminate its 10-year contract with Express Scripts, which began in 2009.

Express Scripts was contracted as Anthem’s exclusive provider of PBM services for Anthem-administered health insurance plans for a ten year period. Part of the agreement was a “periodic pricing review” to ensure that Anthem was receiving competitive benchmark pricing for drugs. However, when Anthem engaged Health Strategy, LLC. as a private consultant to conduct a comprehensive market analysis Anthem discovered that Express Scripts did not provide competitive benchmark pricing.

Based on the Health Strategy’s analysis, ESI’s current pricing to Anthem exceeded competitive benchmark pricing by more than $3 billion annually, and $13 billion over the remaining term of the Agreement. This was the basis of the March Anthem v Express Scripts litigation.

In its counterclaims against Anthem, Express Scripts said the insurer rejected several proposals to renegotiate prices. In addition, Express Scripts’ legal document says Anthem was offered a choice of “less money up front but lower pricing” or a bigger upfront payment “with higher pricing for Express Scripts’ services.”

It chose the higher prices over the course of the contract in exchange $4.6 billion more in upfront fees, according to the PBM’s counterclaim. That money, Express Scripts’ documents allege, was then used by Anthem to buy back its own stock, rather than passing it along to health plan members. The stock buyback “applied upward pressure to Anthem’s stock price, thereby enriching shareholders and management,” the filing alleges.

Two months later, two health plan participants sued both companies under the Employee Retirement Income Security Act challenging Express Scripts’ alleged overbilling.

Express Scripts Inc. and Anthem Inc. are accused in a proposed class action of breaching their ERISA fiduciary duties by entering into the 10-year, multibillion-dollar prescription-drug agreement that caused plan participants to overpay for benefits ( Burnett v. Express Scripts, Inc. , S.D.N.Y., No. 1:16-cv-04948, complaint filed 6/24/16 ). “This action seeks to recover losses suffered by the plaintiffs…who overpaid and continue to overpay for the portions of the costs of prescription drugs…they are responsible for paying as plan participants,” says the lawsuit.

Express Scripts spokesman David Whitrap said the firm denies “the allegations and will defend ourselves vigorously.” Anthem, too, denied the allegations and said it would fight the charges. However, the “denied” allegations echo those in Anthem’s March lawsuit against Express Scripts, and counterclaims filed shortly thereafter by Express Scripts against Anthem.

The court has not yet decided if the suit will have class action status.

The federal judge has dismissed two of the six counterclaims that Express Scripts raised in Anthem $15 billion lawsuit. In a decision recently made public, U.S. District Judge Edgardo Ramos in Manhattan dismissed Express Scripts’ claim that Anthem breached an implied covenant of good faith and fair dealing, saying it duplicated a breach of contract claim. He also dismissed an unjust enrichment claim filed by Express Scripts.

Express Scripts has contracts with insurers and other administrators of workers’ compensation benefits in California. It is unclear if any of Anthem’s allegations apply to any of the California workers’ compensation pharmacy benefit contracts.