Tag: 2022 News

S.B. 826 requires that, by December 31, 2021, publicly held corporations in California have at least 1 female director if the number of directors is 4 or fewer, at least 2 female directors if the number of directors is 5, and at least 3 female directors if the number of directors is 6 or more.

Assembly Judiciary Committee analysis describes S.B. 826 as “essentially a quota system for private corporate boards. Should this bill be challenged, the State would confront a difficult challenge in showing a compelling government interest in requiring a gender-based quota system for a private corporation.” And their expectation of having “difficult” challenges seems to be the case.

In the most recent case, plaintiffs allege that S.B. 826 violates Equal Protection under Article I, Section 7 (aka Equal Protection Clause) and violates Equal Protection under Article I, Section 31 (the prohibition on discrimination based on sex in public employment, education or contracting) of the California Constitution.

Los Angeles County-based California Superior Court Judge Maureen Duffy-Lewis just found in her May 13, 2022 ruling, that S.B. 826 is unconstitutional under the Article I, Section 7, and thus the Court “need not make any determination as to plaintiffs’ second count under Article I, Section 31 in the case of Crest v Padilla, 19STCV27561 (May 13, 2022).

The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more “similarly situated” groups in an unequal manner. When a statute makes express use of a suspect classification, a plaintiff challenging the statute meets their initial and ultimate burden simply by pointing out the classification. The statute is presumed to be unconstitutional, and the government bears the burden of demonstrating otherwise.

The Court found that the Plaintiffs carried their burden to prove that men and women are similarly situated for purposes of S.B. 826’s gender-based quota.” As Plaintiffs have demonstrated that S.B. 826 is presumptively unconstitutional, thus the burden shifted to the defendant to prove that S.B. 826 satisfies strict scrutiny.

To meet the strict scrutiny test, the defendant must show (1) a compelling state interest, (2) that S.B. 826 is necessary and (3) that S.B. 826 is narrowly tailored. The strict scrutiny standard applies even if a law is claimed to be remedial.

Defendant claimed three compelling state interests: (1) S.B. 826 was passed to eliminate and remedy discrimination in the director selection process for publicly held corporate boards in California. (2) S.B. 826 was passed to increase gender diversity on the boards of publicly held corporations to benefit the public and the state economy. (3) S.B. 826 was passed to increase gender diversity on publicly held corporations headquartered in California to benefit and protect California taxpayers, public employees and retirees.

However in her Opinion, Judge Duffy-Lewis said “Generalized assertions of discrimination in a particular region or industry are insufficient to give rise to a compelling governmental interest, as are mere statistical anomalies, and the discrimination must be identified with specificity.”

She went on to say that “S.B. 826’s goal was to achieve gender equity or parity; its goal was not to boost California’s economy, not to improve opportunities for women in the workplace nor not to protect California’s taxpayers, public employees, pensions and retirees.”

The Court considered all evidence but concluded “a Compelling State Interest is lacking.”

Tom Fitton, president of good-government group Judicial Watch, which represented the plaintiffs in court, welcomed the decision by Duffy-Lewis. Fitton noted that this was the second recent California court decision finding that quotas for corporate boards are unconstitutional.

On September 30, 2020, California Governor Gavin Newsom signed AB 979 (Corporations Code§ 301.4) into law on the heels of SB 826. It had similar provisions for the protection of members of “underrepresented” communities rather than women. On the same day that AB 979 was passed in September 2020, three California taxpayers filed a lawsuit against the Secretary of State in Los Angeles County Superior Court. .

In that case, also cited as Crest v. Padilla – 20 STCV 37513 (April 1, 2022), Los Angeles County-based California Superior Court Judge Terry A. Green ruled on April 1 that the law “violates the Equal Protection Clause of the California Constitution on its face.”

Sacramento-based Pacific Legal Foundation (PLF), a public interest law firm, is also pursuing similar litigation in federal court in California. Its lawsuit was filed on Nov. 22, 2021, in the U.S. District Court for the Eastern District of California. That case was dismissed by the trial judge who found that a shareholder has no standing to challenge the law.

But, in a unanimous published opinion, the Ninth Circuit Court of Appeals reversed, and held that a shareholder of a California company has standing to sue in the case of Meland v Weber 2 F.4th 838 (2021)

After a three-day trial that gripped nurses across the country, former nurse, 38 year old RaDonda Vaught, was convicted in Tennessee of two felonies, gross neglect of an impaired adult and negligent homicide, and is facing eight years in prison for a fatal medication mistake. She was scheduled to be sentenced on May 13.

She was arrested in 2019 in connection with the killing of Charlene Murphey, who died at Vanderbilt University Medical Center in late December 2017. Murphey was prescribed a sedative, Versed, to calm her before being scanned in a large, MRI-like machine. Vaught was tasked to retrieve Versed from a computerized medication cabinet but instead grabbed a powerful paralyzer, vecuronium.

Vaught overlooked several warning signs as she withdrew the wrong drug – including that Versed is a liquid but vecuronium is a powder – and then injected Murphey and left her to be scanned. By the time the error was discovered, Murphey was brain-dead.

Court House News reports that she was sentenced to three years of probation Friday as hundreds of health care workers rallied outside the courthouse, warning that criminalizing such mistakes will lead to more deaths in hospitals.

A state judge imposed the sentence on RaDonda Vaught after she apologized to relatives of the victim, Charlene Murphey, and said she’ll be forever haunted by her mistake. Vaught was found guilty in March of criminally negligent homicide and gross neglect of an impaired adult after she accidentally administered the wrong medication.

Nashville Criminal Court Judge Jennifer Smith said Vaught would receive judicial diversion, a way for first-time offenders to have their charges dropped and their records expunged after successfully completing probation. Prosecutors had argued against diversion, although they were not opposed to probation.

The crowd of nurses outside protesting cheered, cried and hugged after hearing the sentence. The relief came after the health care workers spent hours in the sun and clung to every word of the judge’s lengthy sentencing explanation, some linked in a chain with hands locked.

The fact that Vaught, 38, faced any criminal penalties at all has become a rallying point for many nurses who were already fed up with poor working conditions exacerbated by the pandemic. The crowd outside listened to the hearing through loudspeakers and cheered when some of the victim’s relatives said they wouldn’t want jail time for Vaught.

In weighing whether to grant Vaught judicial diversion, Judge Smith cited Vaught’s remorse as well as her honesty about the medication error.

After Vaught was found guilty in March, health care workers began posting to social media that there were leaving bedside nursing for administrative positions, or even quitting the profession altogether. They said the risk of going to prison for a mistake has made nursing intolerable.

On Friday, Vaught’s supporters wore purple T-shirts reading “#IAmRaDonda” and “Seeking Justice for Nurses and Patients in a BROKEN system,” as they listened to speeches from other nurses and supporters. They also held a moment of silence to remember Charlene Murphey.

Vaught reported her error as soon as she realized what she had done wrong – injected the paralyzing drug vecuronium instead of the sedative Versed into 75-year-old Charlene Murphey on Dec. 26, 2017.

Vaught admitted making several errors that led to the fatal injection, but her defense attorney argued that systemic problems at Vanderbilt University Medical Center were at least partly to blame.

Gus Kowal claimed two injuries while employed as a roofer by the County of Los Angeles. But, on August 5, 2019, the employer sent to applicant a Notice of Denial of Claim for Workers’ Compensation Benefit citing “02/28/2012” as the “DOI.”

In response, on October 11, 2019, Kowal requested and obtained a QME panel in orthopedic surgery for the 2012 cumulative trauma claim. On October 16, 2019, the employer sent Kowal a letter objecting to the CT panel, and also striking Dr. Robert Kolesnik from the panel as a precaution.

On October 29, 2019, Kowal sent a fax to defendant with his strike of Dr. Hananni from the panel. About one year later, Kowal sent a letter on October 8, 2020 to the employer advising that an appointment had been scheduled for December 8, 2020 with the same doctor he struck from the panel, Dr. Hananni, to conduct the QME evaluation.

The employer then sent him a letter objecting to the evaluation with Dr. Hananni since he had previously struck this physician from the panel.

The matter proceeded to trial on the issue: “Can applicant set a panel exam with a doctor they untimely struck when, after defendants timely struck, the remaining doctor was not able to see applicant within the statutory time period?” The WCJ concluded that Kowal could not.  Reconsideration was granted, and the WCAB panel allowed him to proceed with the QME evaluation in the case of Kowal v County of Los Angeles, ADJ12372302 (May 2022).

The QME panel in the CT case issued on October 11, 2019. The employer made a timely strike from the panel on October 16, 2019. However, Kowal sent a letter striking Dr. Hannani from the panel on October 29, 2019. Even accounting for additional time for mailing, applicant’s strike from the panel was untimely and invalid. Thus, both remaining doctors on the panel remained viable choices as the QME.

Rule 31.3 provides the procedures for parties to schedule an appointment with the QME. A represented worker has the right to schedule the appointment for the first 10 days. After that, either party may schedule an appointment with the QME.

In an en banc decision, the Appeals Board noted in a footnote that if the employee fails to schedule an appointment with the QME within ten business days, “the clock stops running and either party has an indefinite time to schedule the appointment.” (Cervantes v. El Aguila Food Products, Inc. (2009) 74 Cal.Comp.Cases 1336, 1348, fn. 11.

Therefore, after that initial 10-day period, the employee may still schedule the appointment, or the appointment may be scheduled by the claims administrator or the claims administrator’s attorney pursuant to AD Rule 31.3(d).

The WCAB noted that “this is a unique set of facts since applicant scheduled an appointment with the physician he attempted to strike from the panel. His strike was untimely per the discussion above. Both parties had the right to schedule an appointment with the two remaining physicians on the panel and applicant chose to exercise that right by accepting an appointment with Dr. Hannani within 90 days of his appointment request.”

Therefore, the WCAB panel rescinded the F&O and issued a new decision finding that Kowal was permitted to schedule an examination with the doctor that he untimely struck. The parties were ordered to proceed with using the existing panel.

A new study, published Wednesday in the journal Science Translational Medicine claims that the treatments often used to soothe pain in the lower back might cause it to last longer.

According to the study authors, chronic pain inflicts huge societal costs, in terms of management, loss of work productivity, and effects on quality of life. And chronic low back pain (LBP) is the most frequently reported chronic pain condition. LBP ranks the highest of all chronic conditions in terms of years lived with disability, with its prevalence and burden increasing with age.

Current treatments for LBP often target the immune system and include nonsteroidal anti-inflammatory drugs (NSAIDs), acetaminophen, and corticosteroids, although all of these drug classes are minimally effective at best.

The transition from acute to chronic pain is critically important but not well understood. Despite advances in the understanding of social, psychological, and genetic factors, as well as brain processes associated with chronic LBP, scientists understand very little of the molecular mechanisms underlying the acute-to-chronic pain transition that might lead to more efficacious analgesic strategies.

Therefore the researchers investigated the pathophysiological mechanisms underlying the transition from acute to chronic low back pain (LBP) and performed transcriptome-wide analysis in peripheral immune cells of 98 participants with acute LBP, followed for 3 months.

Transcriptomic changes were compared between patients whose LBP was resolved at 3 months with those whose LBP persisted.

Clinical data showed that the use of anti-inflammatory drugs was associated with increased risk of persistent pain, suggesting that anti-inflammatory treatments might have negative effects on pain duration. Analysis of pain trajectories of human subjects reporting acute back pain in the UK Biobank identified elevated risk of pain persistence for subjects taking NSAIDs.

Thus, despite analgesic efficacy at early time points, the management of acute inflammation may be counterproductive for long-term outcomes of LBP sufferers.

Researchers then replicated their findings using a prospective cohort of similar design. The replication cohort comprised subjects with another musculoskeletal pain condition, temporomandibular disorders (TMD). Although the pathophysiology of TMD is likely not identical to LBP, they hypothesized that the active contribution of the immune system in the transition to chronic pain could be shared.

The authors say that these conclusions may have a substantial impact on medical treatment of the most common presenting complaints to health care professionals. Specifically, the data suggest that the long-term effects of anti-inflammatory drugs should be further investigated in the treatment of acute LBP and likely other pain conditions.

The National Council on Compensation Insurance (NCCI) released its performance metrics for the US workers compensation system for 2021. NCCI’s annual State of the Line presentation provides an exclusive review of trends, cost drivers, and significant developments shaping the workers compensation industry.

Private carrier plus state fund net written premium increased about 1% to $43 billion in 2021 (private carrier premium alone was $38B). Private carriers again posted a profitable Calendar Year 2021 combined ratio of 87. It is the fifth consecutive year with a combined ratio below 90 for the workers compensation insurance market and the eighth consecutive year of underwriting profitability.

“The strength and resilience of the workers compensation system is a point of pride for all stakeholders,” said Bill Donnell, President and CEO of NCCI. “As the workforce and workplaces are changing, the industry must step up again to fulfill its noble responsibility: helping injured workers.”

“Strong employment and significant wage growth are fueling workers compensation payroll increases,” NCCI Chief Actuary Donna Glenn added. “We have a remarkably strong and healthy system right now.”

Additional key insights in NCCI’s State of the Line Report include:

– – The workers compensation line is strong and healthy.
– – WC results continue to reflect a strong financial position.
– – Lost-time claim frequency data suggests the long-term decline has continued, despite a rise in frequency in 2021. Since 2019, frequency declined slightly.
– – The 2021 changes in indemnity and medical claim severity are expected to be flat.
– – The number of COVID-19 claims declined in 2021 relative to the prior year.
– – Workers compensation reserves grew to $16 billion redundant as of year-end 2021.
– – The system saw its eighth consecutive year of underwriting profitability with a calendar year combined ratio of 87, outperforming other property-casualty lines.
– – The 2018 to 2021 loss ratios have been the lowest observed in at least 30 years
– – Net written premiums rose about 1% in 2021.
– – Between 2020 and 2021, countrywide private carrier direct written premium increased 1.9%.
– – State funds saw a larger increase in premium compared with private carriers.
– – Lost-time claim frequency data suggests the long-term decline continues, despite a rise in frequency in 2021. Since 2019, frequency has declined slightly.
– – There is no change expected in medical and indemnity claims severity in 2021.
– – There are potential challenges ahead as medical costs could experience inflationary pressure.
– – Workers compensation reserves are robust. Reserves grew to $16 billion redundant as of year-end 2021.
– -Total property and casualty net written premium for private carriers increased by approximately 9% to more than $700 billion in 2021.

Glenn issued the State of the Line Report at NCCI’s Annual Insights Symposium on May 10 in Orlando, FL.  The State of the Line Report and State of the Line Guide are available online.