Residential property insurance policies commonly require an insured to submit to an examination under oath (EUO) if requested by the insurer in connection with the resolution of a claim. (Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2023) ¶ 6:289.) Insurance Code section 2071.1, subdivision (a)(4), provides that an insured subject to an EUO “may record the examination proceedings in their entirety.”

Following water damage to his home, Vladimir Myasnyankin filed a claim under his property insurance policy with Nationwide Mutual Insurance Company.

Pursuant to the policy terms, Nationwide required Myasnyankin to submit to an EUO, which was scheduled to be in person. Relying on section 2071.1, subdivision (a)(4), Myasnyankin sought to video record the entire proceeding, including Nationwide’s attorneys and claims adjusters.

Nationwide refused to proceed with the EUO, asserting section 2071.1(a)(4) only permitted Myasnyankin to video record himself. Further, Nationwide threatened to deny his claim unless he agreed to proceed with the EUO. Myasnyankin then sued Nationwide seeking a declaration of his rights under section 2071.1.

Nationwide filed a demurrer to the complaint on the grounds that neither the policy nor section 2071.1 vested Myasnyankin with the right to video record all participants at his EUO. Looking at the plain language of section 2071.1 and the legislative history, and examining the distinction between section 2071.1 and the rules of civil procedure regarding depositions (Code Civ. Proc., § 2025.330, subd. (c)), the trial court overruled Nationwide’s demurrer.

The trial court interpreted the phrase “record the examination proceedings in their entirety” as including “video recording of the persons asking the questions, the person answering the questions, and any other aspect of the proceedings.” At the trial court’s suggestion, the parties entered a stipulated judgment in favor of Myasnyankin. Nationwide appealed the judgment (No. A166946). The trial court denied plaintiff’s subsequent motion for attorney fees, and plaintiff appealed that order (No. A167445).

The Court of Appeal was presented with an issue of first impression: whether Insurance Code section 2071.1, subdivision (a)(4) entitles an insured to make a video recording of the insurer’s participants in an EUO. After considering the statute’s plain language, statutory framework, and legislative history, it concluded that the provision does confer such a right in the partially published case of Myasnyankin v. Nationwide Mutual Ins. Co. -A166946 (January 2024).

” ‘An insured’s compliance with a policy requirement to submit to an examination under oath is a prerequisite to the right to receive benefits under the policy’’ ” (Abdelhamid v. Fire Ins. Exchange (2010) 182 Cal.App.4th 990, 1001 (Abdelhamid).) “Examinations under oath are frequently conducted under circumstances where the loss is undocumented or suspect.” (Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2023) ¶ 6:289.3.) “The purpose of the examination under oath is to enable the insurer to obtain the information necessary to process the claim: ‘ “As the facts with respect to the amount and circumstances of a loss are almost entirely within the sole knowledge of the insured, … it is necessary that it [the insurer] have some means of cross-examining, as it were, upon the written statement and proofs of the insured, for the purpose of getting at the exact facts before paying the sum claimed of it.” ‘ ” (Brizuela v. CalFarm Ins. Co. (2004) 116 Cal.App.4th 578, 591–592 (Brizuela).) “The examination is normally conducted orally before a court reporter who administers the oath and transcribes the proceeding.” (Croskey at al., supra, ¶ 6:289.).

Section 2071.1, subdivision (a), applies to “any policy that insures property and contains a provision for examining an insured under oath,” and enumerates a nonexclusive list of “rights of each insured who is requested to submit to an examination under oath.” One such right is to “record the examination proceedings in their entirety.” (§ 2071.1(a)(4).)

The parties agree the provision grants insureds the right to make an audio or video recording, but dispute who can be recorded on video. Myasnyankin argues the statute entitles an insured to video record the insurance company’s representatives, while Nationwide contends the provision only confers on insureds the right to video record themselves.

The history of section 2071.1, added in 2001 (Stats. 2001, ch. 583, § 5), is unequivocal that the motivating purpose was to provide protections for insurance consumers during the claims process. Section 1 of the enacted bill expressly so provides: “Existing legal protections for insurance policyholders proved to be inadequate after the Northridge earthquake. The public requires additional safeguards against unfair claim settlement practices by insurance companies.”

“To be sure, the legislative history does not explicitly address whether section 2071.1(a)(4) encompasses the right to video record the insurer’s representatives. However, it demonstrates an express and unequivocal intent to protect insureds from harassment in EUO proceedings, and this purpose is served by granting insureds such a right. Significantly, video records nonverbal conduct, such as eye-rolls or glares, which would not be captured by audio recordings or reporter’s transcripts.  (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶8:659.)  In addition, the knowledge that a person is being video recorded may prompt that person to modify their behavior in a positive manner.  

“The plain language, statutory framework, and legislative history all support a construction of section 2071.1(a)(4) granting insureds the right to make a video recording of the insurer’s representatives at an EUO, and such a construction is not unreasonable.”

Annette Valdez, who claimed to be an injured worker, was a 34 year old a meter mechanic on the last day of her alleged Cumulative Trauma (CT) period, when she claimed injury to her psyche due to alleged harassment while working for the Southern California Gas Company.While she was represented by an attorney, she settled her claim via Compromise & Release for $2,500, which was approved on 2/28/02.

Much later she claimed that that she was incompetent at the time she signed the C&R on 1/11/02 settling this particular case. the matter proceeded to trial on 2/28/22, on the sole issue of whether the Order Approving Comprise & Release (OAC&R) dated 2/28/02 should be set aside.

She testified that she was not in her right mind at the time she signed the C&R in 2002. She was not taking the right medications. She is currently taking Haldol. Beforehand, however, she took something else which put her to sleep. Now that she is taking Haldol, she is better. At the time of the C&R, she was paranoid and schizophrenic and she was fearful of pursuing her case because her coworkers might get mad and they knew where she lived. She said she went to court one time and asked how she could reopen her case and was told that she would have to show how she was incompetent at the time she signed the C&R. It is unknown when exactly this occurred or who told the Applicant this.

She offered four exhibits at trial, none of which were medical evidence supporting her claim of incompetency at the time she signed the settlement agreement.

Findings and Order issued by a WCJ on May 10, 2022 which found that that there was no good cause to set aside the February 28, 2002 Order Approving Compromise & Release. Her Petition for Reconsideration was denied in the panel decision of Valdez v Southern California Gas Company -ADJ1991445 (January 2024).

Case law has defined incompetence as “not insanity, but rather inability to properly manage or take care of oneself or property without assistance.” County of Santa Clara v. WCAB (McMonagle) (1992) 57 CCC 377, 379 (writ denied). It has been held that the term does not apply to physical inability but rather to mental incompetence. … Fox v. IAC (1943) 8 CCC 194, 195 (writ denied).

Medical evidence is required to establish incompetence. Sun Indemnity Co. of New York v. IAC (McKinney) (1948) 13 CCC 82, 85; Lamin v. City of Los Angeles Police Department (2004) 69 CCC 1002, 1005. The statute of limitations will be tolled if the court finds sufficient psychological impairment such that the injured worker is incapable, or substantially compromised. County of San Bernardino v. WCAB (Spencer) (1996) 61 CCC 860 (writ denied); Feeley v. Southern Pacific Transportation Co. (1991) 234 Cal App.3d 949. Any such decision must be based on substantial evidence.

The Applicant’s settlement was based on two QME reports, one obtained by Applicant, which was Dr. Perry Maloff, dated 2/19/98 and one by Defendant, Dr. Carl Marusak, dated 12/18/9. Both reports found the Applicant’s psyche claim to be non-industrial. Neither of these reports specifically stated that Applicant was incompetent or incapable of handling her affairs, although they do discuss significant psychological issues.

“Here, after careful consideration of the record, we agree with the WCJ that applicant did not meet her burden to show that she was incompetent at the time that she signed the C&R. Additionally, we agree with the WCJ, that on the record before us, there is no evidence that the agreement was based on fraud.”

A Tarzana man was sentenced to 30 months in federal prison for running a nearly $6 million scheme in which he sold used medical devices that were deliberately misbranded as new, as well as counterfeit devices that he claimed were to be used with fat-reducing laser machines.

Kambiz Youabian, 50, was sentenced by United States District Judge Dale S. Fischer, who also ordered him to pay $5,937,049 in restitution and ordered the forfeiture of $1,685,396 in seized assets.

Youabian pleaded guilty in January 2023 to one count of mail fraud and one count of introducing a misbranded medical device into interstate commerce.

Youabian owned and operated MSY Technologies Inc., a West Los Angeles-based company that did business under the names “Thermagen” and “Global Electronic Supplies” (GES).

From March 2016 to June 2022, Youabian purchased used transducers, which are medical devices used to tighten the skin of dermatology patients by delivering ultrasound energy to a patient’s skin. Used properly, transducers are designed to provide no more than 2,400 treatments. After this number is reached, the devices are considered depleted and should be disposed of in accordance with health code regulations.

Through GES, Youabian purchased depleted transducers for nominal sums, typically $50. Youabian then remanufactured the depleted transducers and added fabricated serial numbers to make the transducers appear to be new.

Then, through his Thermagen company, Youabian fraudulently marketed and sold – for many times more than he paid for them – the remanufactured transducers to health care providers and customers as “new” transducers with 2,400 remaining treatments. To conceal his connection to Thermagen, Youabian used names of fabricated Thermagen employees on correspondences with victim providers and used out-of-state commercial mailboxes for Thermagen’s return of address on shipments, which he sent through the U.S mail.

For example, in February 2020, Youabian, through Thermagen’s website, sold a device falsely advertised as “new” and “containing 2,400 lines” – and with a retail price of $1,695 – to a buyer. Youabian then shipped the device – which contained a fake serial number – from Los Angeles to Florida via the United States Postal Service.

Youabian also shipped counterfeit PAC keys, medical devices used to operate laser machines designed to reduce fat on patients, through the mail.

He then transferred his ill-gotten gains to bank account his controlled, including accounts he opened in the names of MSY Technologies, himself, and his au pair.

In June 2022, law enforcement executed search warrants at Youabian’s home and the GES-Thermagen office in West Los Angeles. In the GES-Thermagen office, law enforcement seized 75 transducers in various states of refurbishment, a manufacturing workstation containing tools and transducer parts, and detailed records of GES and Thermagen’s expenses.

Youabian unlawfully sold thousands of medical devices, including transducers and PAC keys, and receiving at least $5,821,474 in fraudulent proceeds that should have been paid to the companies that are the sole U.S. distributors for these devices. Youabian also caused reputational harm to the device manufacturers and distributors of these medical devices.

The U.S. Food and Drug Administration Office of Criminal Investigations and the United States Postal Inspection Service investigated this matter.

San Francisco City Attorney David Chiu sent a letter to U.S. News & World Report last June seeking information on the company’s hospital rankings, which have come under scrutiny from medical experts for imprecise methodology and bias.

The letter also demanded that U.S. News publicly disclose the payments it receives from the hospitals it endorses, as required by federal regulations. The City Attorney also demands U.S. News substantiate its advertising claims, explain its methodology and how it intends to correct biases, and immediately publicly disclose the revenue it receives from hospitals.

“Consumers use these rankings to make consequential health care decisions, and yet there is little understanding that the rankings are fraught and that U.S. News has financial relationships with the hospitals it ranks,” said City Attorney Chiu. “The hospital rankings appear to be biased towards providing treatment for wealthy, white patients, to the detriment of poorer, sicker, or more diverse populations. Perverse incentives in the rankings risk warping our health care system. Hospitals are treating to the test by investing in specialties that rack up the most points rather than in primary care or other worthy specialties.”

“Smaller, rural, or community hospitals do not have the resources to compete in the rankings. This creates a cycle in which patients and crucial research funding flow to higher ranked hospitals instead of smaller, community hospitals. Those smaller hospitals continue to be under resourced and do not perform well in the rankings or are not ranked at all.”

In a thorough response to the letter dated July 19, 2023 U.S. News raised grave, pointed concerns about the City Attorney’s infringement on U.S. News’ rights under the United States and California Constitutions and California’s Reporters’ Shield Laws, while also explaining that its ranking methodology is published annually, communicated widely, and is wholly transparent.

On January 9, 2024, the City Attorney escalated his inquiry by issuing two subpoenas seeking documents and information relating to U.S. News’ hospital rankings. U.S. News escalated its response on January 23rd by filing a 44 page lawsuit against the City Attorney in the U.S. District Court for the Northern District of California.

In its lawsuit, U.S. News argues that the First Amendment to the United States Constitution safeguards the freedom of speech and the freedom of the press against viewpoint-based discrimination by the government. The Liberty of Speech Clause in the California Constitution, Art. I, § 2, similarly protects these foundational rights. And California’s Reporters’ Shield Law, embodied in the California Constitution (Art. I, § 2, subd. (b)) and California law (Cal. Evid. Code § 1070), defends the press against intrusive inquiries by the government into unpublished information, news gathering, and methodologies.

It goes on to allege the Subpoenas make clear that the City Attorney is using governmental process to engage in viewpoint discrimination – and, indeed, is proceeding as though he holds censorial (or editorial) authority over how U.S. News performs its journalistic work ranking hospitals. The Subpoenas ask U.S. News to “[d]escribe [U.S. News’] basis for not including measures of health equity in its rankings of adult Hospitals”; “[d]escribe how, if at all, [U.S. News] has incorporated primary and preventive care in each annual version of the Best Hospitals rankings”; and “[d]escribe [U.S. News’] basis for believing that Medicare outcomes information from at least 18 months ago accurately reflects current Hospital outcomes.”

U.S. News seeks a declaration that the Subpoenas violate the First and Fourteenth Amendments to the United States Constitution, Article I, section 2 of the California Constitution, and section 1070 of the California Evidence Code. U.S. News also seeks an order permanently enjoining Defendant from enforcing the Subpoenas.

Chiu, in a statement provided to The Los Angeles Times, vigorously disputed those claims. “It’s ironic that U.S. News claims its speech has been chilled, when the purpose of the company’s lawsuit is to chill and impede a legitimate government investigation of potential unlawful business practices,” Chiu said.

“Despite U.S. News’ stated commitment to transparency, the company has spent months evading tough questions about its undisclosed financial links to the hospitals it ranks. This lawsuit is yet another baseless attempt to avoid these questions and a waste of judicial resources,” Chiu said. “U.S. News is not above the law, and its bullying litigation tactics will not deter us from standing up for patients and consumers.”

Dennis Lindsey was employed as a staff psychologist by the California Department of Corrections and Rehabilitation. He filed an Application for Adjudication alleging injury arising out of and in the course of employment to his psyche, hypertension, and aortic root dilation.

Dr. Anne Welty, the Agreed Medical Examiner in psychology. issued a report diagnosing the applicant with adjustment disorder with mixed disturbance of emotions and conduct. As to causation, Dr. Welty stated that with a reasonable degree of medical probability, over 51% of the applicant’s acute and presenting psychiatric symptoms developed as a result of the events that transpired during the course of his employment with the Chino Institute for Men. Based on the opinions of Dr. Welty, the WCJ found that the events of employment were the predominant cause of the applicant’s psychiatric injury.

Having determined that the applicant’s psychiatric injury involves actual events of employment and that some of those events of employment were lawful, nondiscriminatory, and made in good faith personnel actions, the WCJ was required to determine if those personnel actions were a substantial cause of the applicant’s psychiatric injury. Substantial cause is defined by the Labor Code to mean at least 35 to 40 percent of the causation from all sources combined.

Based on the medical opinion of Dr. Welty, the WCJ found that 15% of the cause of the applicant’s psychological injury was the result of the disciplinary action for the paperwork submission and timeliness of patient team meetings and scheduled appointments, 10% attributed to the disciplinary action for going outside the chain of command and for using profane language, and 10% attributed to the disciplinary action for going outside the chain of command when he submitted a complaint regarding a particular staff psychiatrist who was going to come work on the team.

When combined, these three events of employment total 35% of the causation from all sources combined and were a substantial cause of the applicant’s psychological injury, and the WCJ found that the defendant had no liability for the applicant’s psychological injury.

Applicant’s Petitioned for Reconsideration was dismissed in the panel decision of Lindsey v  California Department of Corrections and Rehabilitation -ADJ9111192 (January 2024).

The petition in this matter was filed on November 13, 2023. This was more than 25 days after the service of the WCJ’s September 16, 2022 decision and beyond whatever extension of time, if any, the petitioner might have been entitled to under WCAB Rule 10600. This time limit is jurisdictional and, therefore, the Appeals Board has no authority to consider or act upon an untimely petition for reconsideration.

Additionally the Petition for Reconsideration was not verified and notice of this defect was specifically given in both the WCJ’s Report and by the respondent’s answer. Moreover, a reasonable period of time has elapsed, but petitioner has neither cured the defect by filing a verification nor offered an explanation of why a verification cannot be filed.

However, the WCAB panel went on to say “If the petition had been timely, we would have denied it on the merits for the reasons stated in the WCJ’s report.” And added “In addition to the WCJ’s Report, we offer the following as further clarification regarding ‘events of employment’ and ‘personnel actions.’ “

When a psychiatric injury is alleged and the “good faith personnel action” defense has been raised, the WCJ must evaluate the defense according to a multilevel analysis. This is often referred to as a Rolda analysis, base on Rdolda v. Pitney Bowes, Inc. (2001) 66 Cal.Comp.Cases 241.

It is often helpful to break this analysis into discreet elements: (1) whether the alleged psychiatric injury involves actual events of employment, a factual/legal determination; (2) if so, whether such actual events were the predominant cause of the psychiatric injury, a determination which requires competent medical evidence; (3) if actual events of employment were the predominant cause of the psychiatric injury, whether any of the events of employment were personnel actions; (4) if so, were those personnel actions lawful, nondiscriminatory and in good faith; and (5) if so, whether the lawful, nondiscriminatory, good faith personnel actions were a “substantial cause” of the psychiatric injury.

In Larch v. Contra Costa County, the Appeals Board defined personnel action as conduct either by or attributable to management, which includes actions taken by someone who has the authority to review, criticize, demote, or discipline an employee. (Larch (Fleming) v. Contra Costa County (1998) 63 Cal.Comp.Cases 831, 833 [“conduct attributable to management in managing its business including such things as done by one in authority to review, criticize, demote, transfer or discipline an employee in good faith.”].)

It is not necessary that the action have a direct or immediate effect on the employment status. Not every action taken by someone who has the authority to review, criticize, demote, or discipline is necessarily a personnel action. The issue of whether the employee’s psychiatric injury occurred as a result of a personnel action is a factual and legal issue for the WCJ, as is the determination of whether a personnel action is lawful, nondiscriminatory, and made in good faith.

The WCAB dismissed the Petition as untimely and unverified. However, “if the petition had been timely and verified, we would have denied it on the merits for the reasons stated in the WCJ’s report.”