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Tag: 2021 News

DWC Extends QME Emergency Regs 36.7 and 46.2

The Division of Workers’ Compensation (DWC) has issued a Notice of Emergency Regulation Re-Adoption to extend current measures that allow workers’ compensation claims to move forward during COVID-19 restrictions.

Emergency regulations § 46.2 and § 36.7 are set to expire on March 12, 2021. This re-adoption would extend the emergency regulations for up to an additional 210 days in accordance with Executive Orders N-40-20 and N-66-20. After this re-adoption, DWC can seek one final re-adoption.

Re-adopting the emergency regulations will continue to help employers and injured workers move workers’ compensation claims toward a resolution and avoid undue delay. These regulations provide for how a medical-legal evaluation can occur and alternatives for service of required forms for a medical-legal evaluation and report.

The regulations concern how medical-legal evaluations and payment for those evaluations can occur during this emergency period. Also provided in the regulations are alternative forms of service for required forms related to medical-legal evaluations and reports.

– – QME Regulation 36.7 specifies how and under what circumstances the parties may serve documents electronically.

– – QME Regulation 46.2 specifies how and under what circumstances QME, AME and other evaluations may be conducted by telehealth.

DWC will file the re-adoption of the emergency regulations with the state’s Office of Administrative Law (OAL) on February 16, 2021.

For information on the OAL procedure, and to learn how you may comment on the emergency regulations, go to the OAL’s website.

Upon OAL approval and filing with the Secretary of State, a notice will be posted on the DWC website.

Long Beach Supermarkets Close Over City “Hero” Pay Law

Two grocery stores in Southern California will shutter in April in response to a local “hero pay” measure requiring a $4-an-hour increase for grocery workers during the pandemic.

Kroger, which owns more than a dozen grocery chains, announced this week that it would close a pair of Long Beach stores – a Ralphs and a Food 4 Less – specifically citing the ordinance the city’s mayor signed into law late last month. The city was the first in the state to introduce a measure requiring some grocery retailers to give workers a temporary hourly pay bump during the pandemic.

“The irreparable harm that will come to employees and local citizens is a direct result of the City of Long Beach’s attempt to pick winners and losers,” the company said in a statement, calling it “deeply unfortunate.”

The report in the Washington Post says that Kroger’s move to close the stores comes amid growing momentum for similar hazard pay policies in cities across the state, as well as elsewhere in the country. Officials in two other cities – the Oakland City Council and the Los Angeles City Council – voted unanimously on Tuesday to mandate temporary $5-per-hour pay increases for some grocery workers.

The Long Beach policy is in place for 120 days and includes groceries that sell at least 70 percent food products and employ more than 300 people nationally with at least 15 employees per store. Under those terms, it may exclude retailers like Target and Walmart.

Long Beach Councilwoman Mary Zendejas, who sponsored the measure, said she was “incredibly disappointed” in Kroger’s move to close stores.

“It really saddens me that they’d rather take away 200 jobs instead of doing the right thing, which is paying hazard pay for these local grocery store workers who risk their lives every day they come in and who are putting their lives on the line every second they’re working,” she told The Washington Post.

She said the closures will also have an impact on the communities they serve, noting that Food 4 Less serves many low-income residents in the area.

Experts and groups on both sides of the hazard pay debate are worried Kroger’s decision could signal a broader response.

Molly Kinder, a fellow at the Brookings Institution who studies front-line workers, said it was notable that Kroger is closing two stores in the first city in California to introduce such a mandate.

“I have to interpret that this statement is meant to signal that more Krogers could close if this is expanded,” Kinder said, adding it seemed to “send a message that mandates could come with consequences.”

Ronald Fong, president of the California Grocers Association trade group, which filed a lawsuit over the Long Beach ordinance, said the group tried to warn the city about “unintended consequences” of the measure.

“When a city tries to enact what is a 30 percent raise for grocery store workers, it is impossible to be able to absorb that without doing one of three things,” Fong told The Post. “Raising prices and passing it along to our customers, closing stores because they will no longer be profitable with that kind of labor expense or reducing hours and cutting shifts.”

The group announced Wednesday that it would also file lawsuits against Oakland and the city of Montebello to challenge similar $5-an-hour hazard pay measures.

DWC Opens Registration for Educational Conference

The California Division of Workers’ Compensation announced dates for its 28th annual educational conference.

The conference will take place on a virtual platform from March 24-26, 2021.

Sessions will also be available to view on demand through April 9, 2021 for registered participants.

This annual event is the largest workers’ compensation training in the state and allows claims administrators, attorneys, medical providers, return-to-work specialists, employers, human resources and others to learn firsthand about the most recent developments in the system, including any new laws or requirements.

Speakers from the Division of Workers’ Compensation and the private sector will address topics pertinent to claims administrators, medical providers, attorneys, rehabilitation counselors and others involved in workers’ compensation.

DWC has applied for continuing educational credits by attorney, rehabilitation counselor, case manager, disability management, human resource and qualified medical examiner certifying organizations among others.

Organizations who would like to become sponsors of the DWC conference can do so by going to the IWCF Website.

Attendee, exhibitor, and sponsor registration may be found at the DWC Educational Conference Webpage.

California Legislators Seek “Reboot” of Failing EDD

Inheriting a mounting bureaucratic disaster that has floated lifelines to inmates but left newly jobless Californians broke, lawmakers are calling for a reboot of the state’s Employment Development Department.

Pressed to act after a series of criminal investigations and audits revealed inmates and fraudsters took the department for at least $10 billion during the pandemic, a group of Assembly members say sweeping changes are needed to make the troubled department functional once again.

Assemblyman Rudy Salas, said “We want to fix it. EDD needs to be reformed, it needs to more responsive to Californians especially during a time of need.”

The bills call for improvements to the department’s identity verification process, an oversight board to monitor unemployment claims, a task force to further investigate fraud, simplified application processes and direct deposit options for claimants.

Courthouse News reported that the reform package comes one day after the department’s leadership received a lashing from an Assembly committee.

During a marathon oversight hearing, flummoxed and angry lawmakers on both sides of the aisle spent five hours recounting stories of people forced to live in their cars while waiting for unemployment benefits that never came.

One of the proposals, Assembly Bill 110, attempts to prevent benefits from going to inmates by requiring EDD to cross-check all claims against state and local incarceration records. Lawmakers also want to spend $55 million on a task force to aid ongoing fraud investigations as well as a new oversight board to ensure unemployment benefits are being distributed swiftly and accurately.

Assemblywoman Cottie Petrie-Norris said many of the EDD’s troubles are systemic and far from new.

“The truth is this department has been failing for years and this pandemic really has brought those failures into sharp focus. It has become a crisis for our state.”

In addition to cracking down on past and future fraud, the lawmakers want to make the system easier to use and more accessible.

As highlighted in the recent state audits, while unemployment skyrocketed last year EDD answered fewer than 1% of phone calls made by confused residents. Unable to get through to the department, residents have instead flooded their local elected officials with requests to help with unemployment applications.

Assembly Bill 402 would give people an official avenue for help by creating a sort of consumer advocate arm to sift through application issues. Related proposals would allow claimants to receive benefits via direct deposit, require EDD to offer more options for non-English speakers and a streamlined application process.

San Diego Assemblywoman Lorena Gonzalez said her direct deposit bill is a common-sense proposal born from an incident last summer when Bank of America froze benefit cards amid the spike in fraud. She noted California is just one of three states that doesn’t let people get benefits via direct deposit and that her bill would “cut out the middleman” in reference to the state’s contract with Bank of America.

Cal/OSHA Cites Two State Prisons an Others for COVID Issues

Cal/OSHA has cited multiple employers for not protecting workers from COVID-19 during inspections in various industries throughout the state.

Violations were identified in industries including health care, restaurant, retail, fitness centers, correctional institutions and more. Cal/OSHA opened the inspections after learning of COVID-19 fatalities and illnesses, after receiving complaints and during targeted inspections. The full list of employers cited for COVID-19 violations is posted on Cal/OSHA’s website.

Inspections at the San Quentin and Avenal state prisons occurred after reports of hospitalizations of staff following outbreaks at the institutions. Cal/OSHA determined that San Quentin staff were not provided adequate training or equipment for working with COVID-19 infected individuals, and employees who had been exposed to COVID-19 positive inmates were not provided proper medical services, including testing, contact tracing and referrals to physicians or other licensed health care professionals. Cal/OSHA issued citations for four willful-serious, five serious, one regulatory and four general category violations, including the employer’s failure to institute an effective aerosol transmissible diseases (ATD) control exposure plan.

Avenal State Prison was cited for three serious violations after Cal/OSHA found it failed to maintain an effective written ATD program including site-specific instruction, had an inadequate written respiratory protection plan, and failed to implement and/or enforce work practice controls to minimize exposure to COVID-19 amongst employees.

Ventura-based fitness center BSF Fitness was cited for one willful-serious, two serious and six general category violations following a complaint-initiated inspection opened last July, after a report that the employer was not enforcing face covering use and physical distancing in its gym.

Accident inspections were opened following reports of serious COVID-19 related illnesses at the Kaiser Permanente medical centers in San Leandro, Antioch and Walnut Creek, and Burlingame-based Mills-Peninsula Medical Center; and opened a complaint-initiated inspection at Fairfield-based NorthBay Medical Center. The facilities were cited for serious and regulatory violations after Cal/OSHA found multiple deficiencies in their ATD and respiratory protection programs.

Also cited were four skilled nursing centers: Sunray Healthcare Center and Sherman Village Healthcare Center (both located in the Los Angeles area), Fremont Healthcare Center in Fremont, and San Miguel Villa in Concord. Fremont Healthcare Center and San Miguel Villa were also cited for a regulatory violation because they failed to immediately report serious illnesses suffered by employees.

Cardenas Market in Oakland was cited for multiple violations including three serious-category violations following media coverage of an outbreak where seventeen workers tested positive for COVID-19 last May.

Grimmway Enterprises, Inc. was cited for multiple violations including two serious-category violations, following a fatality-initiated inspection.

Cal/OSHA also cited Carter’s Children’s Wear in Gilroy for failing to immediately report a COVID-19 related serious illness and failing to establish, implement and maintain an effective Injury Illness Prevention Program.

Supreme Court Denies Union Effort to Invalidate Prop 22

The California Supreme Court rejected a major labor union and several ride-hailing drivers attempt to overturn a newly passed ballot measure classifying gig workers as independent contractors in California.

The groups filed suit in the Supreme Court, alleging Proposition 22 violated the state constitution and limits the power of state legislators to implement certain worker protections they are authorized to grant.

The Service Employees International Union and group of ride-hailing drivers, asked the state Supreme Court to invalidate Prop 22, which classified gig driver’s status as independent contractors after more than 58 percent of voters supported it in November.

They argued the measure limits state legislators’ ability to implement a system of workers’ compensation in defiance of their constitutional authority to do so. It also argues that the proposition unconstitutionally defines what comprises an amendment to the measure, as well as violating a rule limiting ballot measures to a single subject to prevent voter confusion.

The Protect App-Based Drivers and Services coalition, which represents gig companies such as Uber, Lyft and Doordash, criticized the lawsuit in a statement attributed to Uber driver Jim Pyatt, an activist who has worked in favor of Prop 22.

The groups that filed the suit, which also include SEIU California State Council, took particular issue with the measure’s inclusion of a provision requiring a seven-eighths legislative supermajority to amend and even define what constitutes an amendment.

They said they were suing in the state Supreme Court rather than a lower court because the issues were of broad public importance and required a speedy resolution to minimize harm to gig workers.

However the Supreme Court refused to hear the case, and did not write a formal opinion. The docket entry simply stated “The petition for writ of mandate is denied without prejudice to refiling in an appropriate court.”

Thus, their arguments were not heard on the merits. They were redirected to the jurisdiction of lower courts. However, as they pointed out, this would now require years of costly litigation, first in lower courts, then intermediate appellate courts, and finally back to the Supreme Court.

It would not be unusual for this to be a ten year journey.

Claimant Faces Fraud Charges for False History of Prior Injuries

45 year old Crescencio Velasco Covarrubias, who lives in Buttonwillow California, was arraigned on multiple felony counts of insurance fraud after allegedly failing to disclose prior work-related injuries in order to collect workers’ compensation benefits.

Covarrubias filed a workers’ compensation claim for an injury he sustained on June 26, 2017, while employed at a retail warehouse center. He alleged he injured his left ankle, foot, heel, and back when he misstepped while sweeping.

As part of the claims process, Covarrubias was responsible for reporting any prior injuries, as they could have affected the outcome of the current claim.

An investigation conducted by the California Department of Insurance revealed on November 11, 2010, Covarrubias filed a workers’ compensation claim, processed by a different insurance company, for a bilateral knee, neck, and back injury, along with left foot and ankle injuries.

Those injuries were sustained when Covarrubias was driving a tractor shuttle loaded with almonds and was struck by another tractor shuttle. Covarrubias’ injuries were treated by his primary treating physicians and he received a $90,000 settlement.

The investigation into the June 2017 injury claim found that Covarrubias not only failed to report the November 2010 injuries, but when specifically asked, he denied any prior injuries to his left foot, ankle or back.

Covarrubias’ fraudulent statements resulted in a loss to his employer’s insurance company of more than $87,000. If Covarrubias would have reported the injuries from November 2010, the insurance company would have conducted an investigation and likely denied or modified the current claim, thereby preventing Covarrubias from receiving benefits he was not entitled to.

Covarrubias self-surrendered and was arraigned on January 7, 2021. He is scheduled to return to court on March 15, 2021. The Kern County District Attorney’s Office is prosecuting this case.

Cal/OSHA Data Significantly Undercounting COVID-19

A year after the first COVID-19 case hit California, Cal/OSHA – the state agency in charge of policing warehouses, offices, factories and other workplaces – is woefully understaffed and significantly undercounting the number of employees who have fallen seriously ill or died as a result of the coronavirus.

California employers reported only 1,600 serious worker illnesses or deaths to the Division of Occupational Safety and Health, known as Cal/ OSHA, from the start of the pandemic through mid-December, according to data obtained by The Sacramento Bee through a Public Records Act request.

The agency’s inspectors determined that only 779 of those serious or deadly infections were actually contracted in the workplace. That represents a tiny fraction of the 3.2 million people who have tested positive for the disease in California, and less than 2 percent of the more than 41,000 who have died from it.

It’s troubling; it absolutely is troubling,” said state Sen. Jerry Hill, D- San Mateo, who co-authored legislation last year strengthening workers’ compensation protections for employees who contract COVID-19 on the job.

Cal/ OSHA officials “have a responsibility to make sure … those employee environments are safe,” Hill said. “We want to guarantee the employer is doing everything possible. … That’s where Cal/ OSHA has to have accurate data.”

While state inspectors have responded to thousands of complaints and levied fines against some workplaces that failed to report serious cases, a long-existing staffing shortage has hindered that process. There were 107 job openings posted for the department as of Friday.

Asked about overlooked infections, Cal/ OSHA spokesman Luke Brown said: “We cannot speculate about the number of cases that have not been reported to Cal/ OSHA.”

The agency’s database includes employer names, inspection numbers and dates that the businesses reported to the state serious illnesses – defined by Cal/ OSHA as cases that resulted in deaths or hospitalization. It is the most detailed official glimpse into how the coronavirus has seriously harmed employees in California.

But it’s far from a complete portrait. The database identifies only businesses that have volunteered information to the state. Workplace researchers, health experts and lawmakers all agree the data is likely missing swaths of essential workers who were seriously sickened at work.

“Obviously, that is way under the experience that has been reported daily about the huge numbers of serious illnesses and deaths among vulnerable communities who are people who have not been able to shelter at home,” said Laura Stock, director of UC Berkeley’s Labor Occupational Health Program.

Taken as a whole, the Cal/ OSHA database creates an improbable portrait of significant COVID-19 cases in the workplace. Only four serious, confirmed illnesses have been recorded at poultry processing plants – an industry that, in reality, has been a well-known hot spot for COVID-19. Just 77 serious cases have been tallied across all of California’s agriculture, meat and poultry sectors.

According to Cal/ OSHA’s data, Sacramento County had 51 confirmed workplace infections. That’s second only to the 220 cases reported in Los Angeles County – one of the nationwide epicenters for COVID-19. More than 16,000 Angelenos have died and more than 1 million have contracted the diseases, according to Los Angeles County health officials.

“If you’re not paying attention, and documenting where and why people are getting sick and dying, (the virus) doesn’t just stay in the workplace,” said Marcy Goldstein-Gelb, co-executive director of the National Council for Occupational Safety and Health. “It goes back to families. It goes back to whole communities.”

The lopsided reporting of the most serious suspected cases, deaths and major illnesses, and a de facto honor system for companies to report problems, are the latest in a line of failures at the state’s long-struggling worker safety department, critics said.

Hearing on COVID-19 MTUS Canceled Pending ACOEM Updates

The Division of Workers’ Compensation has canceled the scheduled February 18, 2021 virtual public hearing on the proposed adoption of a COVID-19 evidence-based guideline to the Medical Treatment Utilization Schedule (MTUS).

The publisher of the American College of Occupational and Environmental Medicine’s (ACOEM) guidelines made an edit to the version of the Coronavirus (COVID-19) Guideline that DWC posted for the 30-day public comment period.

As a result, DWC will not have sufficient time to repost the edited version and complete the formal guideline adoption process before another ACOEM update to this guideline is expected in mid-March.

DWC plans to adopt and incorporate ACOEM’s COVID-19 Guideline into the MTUS when the next update is published if there is enough time to complete the formal adoption process before another update.

In the meantime, the DWC continues its support of this guidance and encourages providers to follow the MTUS Medical Evidence Search Sequence found in California Code of Regulations, title 8, section 9792.21.1, for treatment recommendations pertaining to COVID-19.

This regulatory search sequence requires a search of the most current version of ACOEM guidance. The ACOEM COVID-19 Guideline meets that criteria. Additional information is available at DWC’s MTUS webpage.

Congress Investigating Meatpackers for High COVID Deaths

Reuters reports that a U.S. congressional panel is investigating three large meatpacking companies for possible worker-safety violations following reports that hundreds of industry workers have died of COVID-19. The House of Representatives’ coronavirus subcommittee asked JBS USA, Tyson Foods Inc and Smithfield Foods Inc to provide records of inspections, complaints and other internal documents.

The panel also asked the Occupational Safety and Health Administration (OSHA), the nation’s workplace safety watchdog, to provide records of its efforts to enforce worker safety rules.

Meatpacking plants emerged as early hubs of coronavirus infection last spring, forcing many of them to close temporarily and pushing up meat prices. Companies erected physical barriers and took other steps to protect workers, but they were not able to eliminate the risk of infection.

Surrounding communities also were affected. Meatpacking plants were associated with at least 236,000 coronavirus cases and up to 5,200 deaths as of July, according to the National Academy of Sciences.

Labor unions and workers have accused the companies of taking inadequate steps to protect workers.

Smithfield, Tyson and JBS said they have spent hundreds of millions of dollars on worker safety, bonuses and other measures. All three companies said they would cooperate with the investigation.

The Meat Institute trade group said case rates for industry workers were five times lower in December than they were in May, while infections rose for the U.S. population as a whole.

The coronavirus subcommittee’s chairman, U.S. Representative James Clyburn, said his panel would also examine OSHA’s enforcement efforts, which he described as ineffective. “It is imperative that the previous Administration’s shortcomings are swiftly identified and rectified to save lives in the months before coronavirus vaccinations are available for all Americans,” he said in a statement.

In response, OSHA said more stringent safety guidelines issued to employers on Friday were a “first step” in its efforts to work with Congress on worker protections.

A Reuters investigation found that workplace inspections by OSHA dropped 44% between March, when the virus began to spread widely in the United States, and December.

OSHA last year fined Smithfield, owned by Hong Kong-listed WH Group Ltd, $13,494 for a violation at its Sioux Falls, South Dakota, plant, where four workers died and nearly 1,300 were infected.

The agency fined JBS $15,615 for a violation at its Greeley, Colorado, plant, where six died and about 300 tested positive. Both companies are appealing the fines.