Each year the California Chamber of Commerce releases a list of job killer bills to identify legislation that it claims will decimate economic and job growth in California. The CalChamber tracks the bills throughout the rest of the legislative session and works to educate legislators about the serious consequences it says these bills will have on the state. The program tracks more than 3,000 legislative proposals every year, sounding the alarm when a bill will hurt employers and the economy.

The organization released its preliminary list of job killer bills on March 29 to call attention to the negative impact that 18 proposed measures would have on California’s job climate and economic recovery if they were to become law. Another job killer has since been identified, bringing the total to 19.

Several of the pending bills characterized as job killers limit the use of arbitration in certain cases. The Chamber says that AB 2667 (Thurmond; D-Richmond) unfairly discriminates against arbitration agreements and therefore is likely preempted by the Federal Arbitration Act, which will lead to confusion and litigation, by prohibiting arbitration of Unruh Civil Rights violations made as a condition of a contract for goods or services.

And AB 2879 (M. Stone; D-Scotts Valley) unfairly discriminates against arbitration agreements and is likely preempted by the Federal Arbitration Act, which will lead to confusion and litigation, by prohibiting an employer from requiring an individual who is a member of the military to sign a mandatory arbitration agreement as a condition of employment.

Job Killer No. 20 stalled on Assembly Floor A day after being added to the California Chamber of Commerce job killer list, a bill dealing with release clauses fell short of votes needed to pass the Assembly. AB 2748 (Gatto; D-Glendale) is deemed a job killer because it would eliminate incentives to settle lawsuits and would instead expose businesses to multiple rounds of litigation by creating statutory prohibitions on “release” clauses in settlements pertaining to “environmental disasters.”

Thus far there are no worker’ compensation bills pending that have been identified by the CalChamber as a job killer.

“These job killer bills represent the worst of the worst legislative proposals currently under consideration by lawmakers,” said CalChamber President and CEO Allan Zaremberg. “As everyone knows, California has areas that are booming economically and other areas that are stagnating. Each part of California has unique problems and these job killers will negatively impact future economic growth. Whether they create barriers to providing affordable housing for workers, or increase costs for companies trying to grow or stay in business, these job killer bills should not become law.”

The CalChamber 2015 job killer list grew to 19 bills during the legislative session. By the end of the year, 18 of the 19 proposed laws were defeated.

An Orange County Social Services Agency (SSA) group counselor was sentenced for defrauding over $30,000 from the County of Orange by making fraudulent statements relating to his workers’ compensation claim.

Maluelue Tafua, 41, Orange, pleaded guilty to a court offer of two misdemeanor counts of insurance fraud and two misdemeanor counts of making fraudulent statements.

The defendant paid over $30,000 in restitution and was sentenced to three years informal probation, ordered to complete 100 hours of community service, and pay $100 to the Worker’s Compensation Fraud Assessment Fund as well as statutory fees.

On January. 8, 2014, Tafua claimed that he injured his right shoulder and elbow restraining someone while working at Orangewood Children’s Home. SSA attempted to accommodate his injury by assigning him to modified duties within the work restrictions prescribed by the treating physician. Tafua subsequently went to his doctor and claimed to be unable to use his right arm. SSA could not accommodate that restriction and placed Tafua on temporary total disability.

On June 3, 2014, Tafua bench pressed 315 pounds in a gym. During a medical appointment with his doctor the following day, Tafua claimed that his pain had not improved and that he had been complying with his treatment. The defendant failed to report that he exercised using weights at the gym.

On July 14, 2014, the County began investigating this case after observing inconsistencies in the defendant’s statements, what was observed at the gym, and what activities he told the doctor he was capable of performing.

Deputy District Attorney Pam Leitao of the Insurance Fraud Unit prosecuted this case.

The Partners of Floyd Skeren & Kelly, a statewide workers’ compensation and employment law defense firm are pleased to announce that Jason Hilfrink has been appointed to the position of Managing Attorney for the firms Fresno office effective May 23, 2016.

Jason was with FS&K for about 10 years before leaving to broaden his experience with another Southern California defense firm.

He started FSK’s Sacramento office in 2006 and after returning to Southern California served as a Senior Associate and as the Assistant Managing Attorney of the Westlake Village office until his departure in 2013.

Jason has a strong litigation and business development background that well qualifies him for this new assignment.

He is a graduate of Illinois State University with a major in psychology and then earned his Juris Doctorate at Pepperdine School of Law in 2002.

After his relocation to the Fresno area, he intends to become active in the workers’ compensation community. He assures that his office will continue to provide the firm’s clients excellence in legal representation with an eye toward managing overall legal costs.

In 1987, Robert Carrion sustained a severe knee injury while working as a chassis mechanic for Matson Terminals, Inc.. Although Carrion returned to his physically demanding job and worked for the next fifteen years, his knee continued to deteriorate. He took early retirement in 2002, when his pain became so great that he could walk only with difficulty. After Carrion’s former employer ceased paying for treatment, he filed for disability under the Longshore and Harbor Workers’ Compensation Act.

By the time he filed his claims in 2008, Carrion had endured decades of persistent pain without any actual or expected improvement. His doctors unanimously concluded that he eventually would require total knee replacement surgery. Even though no surgery was on the horizon, his employer classified the injury as a temporary disability.

The Administrative Law Judge determined that “[a]t first blush, it seems [Carrion’s] injury is permanent,” and acknowledging that Carrion’s “condition has lasted for a long period of time,” the ALJ nevertheless concluded that Carrion’s disability was temporary. The ALJ reasoned that Carrion was contemplating knee replacement surgery, which his doctors agreed would likely alleviate his symptoms, and thus “medical improvement through the knee replacement was available” once “his pain became too much.” The ALJ noted, however, that if Carrion decided against surgery and opted to “live with the knee pain indefinitely, he would be found permanently disabled.”

The employer appealed the ALJ’s timeliness determination to the Benefits Review Board (“BRB” or “the Board”), and Carrion cross-appealed the ALJ’s finding that his disability was temporary. The BRB affirmed the ALJ on both issues. The 9th Circuit Court of Appeal granted the cross-appeal and found Carrion to be permanently disabled in the published case of SSA Terminals and Homeport Insurance Co. v Carrion.

One of the questions addressed by the 9th Circuit Court of Appeals is whether, after such a protracted period of disability, the prospect of a hypothetical future surgery and its anticipated benefits can transform an otherwise permanent disability into a temporary one for purposes of the Longshore Act.

The Longshore Act creates “two independent areas of analysis,” one assessing the nature, or duration, (temporary versus permanent) and the other the degree of the disability (partial versus total).Four separate disability categories stem from this framework: permanent total disability; temporary total disability; permanent partial disability; and temporary partial disability.Two of these qualifiers, permanent and temporary, “go to the nature of the disability.” The Longshore Act does not define “temporary” or “permanent,” although the classification issue arises on a continuing basis.

Courts have held that “[a] disability is temporary ‘so long as there [is] a possibility or likelihood of improvement through normal and natural healing.” Castro, 401 F.3d at 968 (quoting Stevens, 909 F.2d at 1259) (second alteration in original). A disability may become permanent if (1) a claimant reaches “maximum medical improvement” – the point at which “the injury has healed to the full extent possible” and normal and natural healing is no longer likely, Stevens, 909 F.2d at 1257 (citing Watson v. Gulf Stevedore Corp., 400 F.2d 649, 654 (5th Cir. 1968)); or (2) the condition has “continued for a lengthy period, and it appears to be of lasting or indefinite duration, as distinguished from one in which recovery merely awaits a normal healing period.” Watson, 400 F.2d at 654. The Watson test clarifies that “permanent” is not tantamount to “eternal” or “everlasting” and “does not foreclose the possibility that [the] condition may change.”

The 9th Circuit concluded that evaluating an individual’s condition based on the presumed effect of a theoretical future treatment makes scant sense – particularly in light of the “vicissitudes of the individual’s responsiveness to medical treatment.”

In an extremely rare unanimous vote, the U.S. House of Representatives on Wednesday passed legislation to improve safety planning for children who are born dependent on opioid drugs. A similar bill is pending in the Senate. It is one of more than a dozen new measures that are aimed at addressing a U.S. epidemic of addiction to pain pills and cheap heroin.

The legislation came in response to a Reuters investigation last year, titled “Helpless and Hooked,” which revealed that at least 110 babies had died since 2010 after being born dependent or exposed to opioids and sent home with parents ill-prepared to care for them.

“It’s hard to imagine that stories like these could be any more tragic,” Rep. Lou Barletta, a Pennsylvania Republican who is the prime sponsor of the bill, said on the House floor. “Unfortunately, they are. Because they should have and in many cases could have been prevented.” The Infant Plan of Safe Care Improvement Act (H.R. 4843), which Barletta authored with Rep. Katherine Clark (D-MA), requires that states which receive federal funds for child protective services comply with federal law and enact certain guidelines for the welfare of children exposed to opioids. The category of opioids includes a variety of pain medications or other drugs, such as heroin.

“Every 25 minutes in America, a baby is born suffering from opioid withdrawal. It’s an eye-opening statistic, and the more you consider what it really means, the more tragic it becomes,” Barletta said. “Every 25 minutes, a child enters the world having already been exposed to drugs. Every 25 minutes, a newborn has to pay the price for something he or she was defenseless against. Every 25 minutes, another infant becomes a victim of the national opioid crisis. These are the victims this bill will help protect.”

Only nine of the 50 U.S. states followed a federal law requiring them to track and help those newborns, Reuters reported. The news agency found that more than 130,000 newborns were diagnosed with drug withdrawal over the last decade, but most of them weren’t reported to state child-protection authorities.

In April, the U.S. Department of Health and Human Services asked all states to report by June 30 whether and how they are following the existing law, known as the Child Abuse Prevention and Treatment Act. States receive federal funding after giving assurance they are complying.

Children’s advocates are seeking more federal funding to go with the commitment. “We would view this as a good first step, but they need to make it real and put some money in it,” said John Sciamanna, vice president of public policy for the Child Welfare League of America.

Among the other opioid-related bills adopted by the House on Wednesday was one designed to help states emulate a pilot program for drug-affected newborns in Huntington, West Virginia. Rep. Evan Jenkins, a Republican who helped create the Huntington facility, known as Lily’s Place, before he became a congressman, said his bill would help improve access to care for poor babies and women on Medicare.

The Reuters series can be read here.