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WCAB Declines to Extend Premises Line Rule for Injured Worker

Justin Tharpe was employed by Arcata Forest Products. He alleged injury occurred to his right ankle on January 30, 2023 during his uncompensated lunch break while he was visiting his friend, Joe Zavala, on a nearby, but non-adjacent, property known as the Figas Construction property.

Applicant contended that the location of the alleged injury, i.e., the Figas Construction property, is controlled by Arcata Forest Products, where: 1) applicant’s boss, Robert Figas, owns both properties, and 2) Arcata Forest Products occasionally uses or stores a piece of equipment at the Figas Construction property.

However, unrebutted evidence showed that Mr. Figas and his wife owned the Figas Construction property as a corporate entity separate from Arcata Forest Products. Robert Figas made this very clear during trial, stating that “Figas Construction[] is a separate business owned by [him] and his wife ¶…as a limited liability company….That property is not owned by Arcata Forest Products.”

The WCJ ordered that applicant take nothing by way of his claim. Reconsideration of this order was denied in the panel decision of Tharp v Arcata Forest Products -ADJ17462575 (January 2024).

Applicant’s argument raises the widely recognized workers’ compensation rule known as the “going and coming rule,” which precludes compensation for injuries suffered during the course of a local commute to a fixed place of business at fixed hours in the absence of certain exceptional circumstances. However, injuries sustained by an employee while going to or coming from the place of work upon premises “owned or controlled” by the employer are generally deemed to have arisen out of and in the course of the employment. (California Casualty Indem. Exchange v. IndustrialAcci. Com. (1943) 21 Cal.2d 751, 757-758 [8 Cal.Comp.Cases 55]; see also Gonzalez v. Dept. of Indus. Rels. (February 8, 2019, ADJ11121478) [2019 Cal. Wrk. Comp. P.D. LEXIS 52, *9].)

Here, applicant contends that the place of injury, namely, the Figas Construction property, was owned or controlled by his employer such that his injury occurred on employment premises and would therefore be deemed AOE/COE.

The fact that Arcata Forest Products may have brought (or stored) a piece of equipment at the Figas location does not satisfy the premises line rule.

At trial, applicant testified that Mr. Figas stored machines near Mr. Zavala’s trailer on the Figas Construction property. However, Mr. Zavala testified that he did “not think Arcata Forest Products stores anything on the lot where he lives except for perhaps a water truck.” Mr. Figas and Ms. Moug testified that Arcata Forest Products did not use that property for equipment storage.

After considering the discrepancies in the testimony, the WCJ ultimately concluded: “Even if Arcata Forest Products occasionally stored a piece of equipment on Figas Construction property or loaned a forklift to Figas Construction that is not a sufficient nexus between the two…properties to warrant calling the Figas location the premises of Arcata Forest Products.”

The WCAB panel agreed “with the WCJ that the occasional presence of a piece of equipment does not establish that Arcata Forest Products ‘controlled’ the Figas property for the purposes of the premises line rule.

“In summary, applicant asks us to extend the premises line rule to circumstances where he has offered no evidence that he suffered an injury at a time that the employer-employee relationship existed. Applicant simply did not present sufficient evidence that he injured himself on premises controlled or owned by his employer, and we decline to extend the premises line rule to the facts of this case.”

$40 Million Statewide Medical Insurance Scammers Sentenced

The Santa Clara County Superior Court sentenced the last of 15 defendants who were running a massive statewide insurance scam in which they set up a telemarketing company to push overpriced and unneeded prescriptions and medical devices to thousands of Californians.

The defendants – mostly Los Angeles residents – scammed about $40 million from insurance companies in the largest medical fraud case ever prosecuted in Santa Clara County. They called themselves “The Care Group.”

Seven defendants were sentenced to felonies and eight defendants to misdemeanors, with punishments including county jail.

“This group used people’s pain and illnesses to criminally enrich themselves,” District Attorney Jeff Rosen said. “They tried to hide behind a maze of dozens of shell corporations and straw owners. We found them anyway – and now they will pay back their victims and be held accountable.”  

The multi-year, multi-agency investigation to unravel the complex scheme was called C.R.E.A.M. (Cash Rules Everything Around Me.)  

Between 2015 to 2020, the defendants committed fraud on a massive state-wide scale by operating an illicit call center (Global Marketing) from their Beverly Hills offices on Wilshire Blvd. (The Care Group), a durable medical device company (California General DME), and six pharmacies located in Southern California. They targeted unwitting patients throughout the state, including in Santa Clara County, filling, and billing thousands of fraudulent prescriptions for items like neck braces and pain creams.  

The scheme involved purchasing and turning small pharmacies into pain cream and medical device mills that only fulfilled prescriptions signed by doctors who received thousands of dollars in “kick-backs.” The defendants selected pain creams and devices for their high reimbursement rates. For instance, the defendants would bill insurance companies upwards of $4,000 for medication that could be purchased for a few hundred dollars. The prescribing doctors rarely met with or spoke to the patients.  

To create an aura of legitimacy, the telemarketers from Global Marketing would say they were from the “Physician’s Network” or “Doctor’s Network.” These were not real companies.  

At least five insurance carriers were defrauded of approximately $40 million dollars throughout the state of California, with a loss of approximately $2.3 million occurring in Santa Clara County. As part of the negotiated disposition, the defendants paid more than $8.3 million in restitution – making this the largest lump sum restitution recovery for victims in an insurance fraud case prosecuted by the Santa Clara County’s District Attorney’s Office. The money will be used for victim restitution.  

The investigation was spearheaded by the District Attorney’s Office Bureau of Investigation in collaboration with the California Department of Insurance, and with assistance from California State Board of Pharmacy and the San Mateo, Monterey, and Los Angeles County district attorneys’ offices.

Pomona Valley Hospital Overbilled $1.4M For Prescription Meds

Pomona Valley Hospital Medical Center has agreed to pay nearly $2.1 million to resolve allegations that it overbilled Medi-Cal for prescription medication purchased and reimbursed under a federal drug pricing program, the Justice Department announced today.

The settlement agreement finalized on Wednesday is the result of voluntary disclosures Pomona Valley made in 2021 and 2023. After an internal audit,

Pomona Valley determined that it overbilled the United States and California, which jointly fund Medi-Cal, a government-funded program that provides health coverage for low-income individuals in California.

According to the settlement agreement, from December 2016 through September 2021, Pomona Valley improperly charged higher “usual and customary” costs, rather than lower “actual acquisition costs,” as required under the 340B Drug Pricing Program, which requires drug manufacturers to provide outpatient medication to eligible health care organizations at significantly reduced prices.

The overbilling allegedly resulted from Pomona Valley billing for its usual costs following a federal court’s temporary stay of the implementation of the California law requiring 340B providers to bill Medi-Cal at actual acquisition cost rates. But once the court lifted the temporary ban, Pomona Valley failed to implement actual acquisition cost pricing. Pomona Valley ultimately overbilled the United States and California approximately $1.4 million.

Pomona Valley has agreed to pay the United States $873,730 and California $1,225,954 to resolve the allegations, bringing the total settlement amount to nearly $2.1 million.

After making its voluntary disclosure, Pomona Valley cooperated with the investigation by federal and state authorities.

The settlement was negotiated by Assistant United States Attorney Jack D. Ross and auditor Gabriel Lam of the Civil Fraud Section, along with the U.S. Department of Health and Human Service’s Office of Inspector General and the California Department of Justice.

The settled claims are allegations only, and Pomona Valley has not admitted any wrongdoing.

NCCI Releases Q4 2023 “Upbeat” Quarterly Economics Briefing

How healthy is the US labor market?

On the surface, the December employment report released in early January looked strong. Headline job growth of 216,000 is a robust figure that exceeded the Bloomberg consensus estimate of 170,000. The unemployment rate held steady at 3.7% and average hourly earnings surprised to the upside, growing 0.4% month over month and 4.1% year over year, relative to expectations of 0.3% and 3.9%, respectively.

In its January Labor Market Insights report,Labor Market Insights, NCCI, January 5, 2024. it remained upbeat about the health of the labor market following the December employment report.

In this Economic Outlook for Q4 paper, NCCI will discuss the reasons for its relatively favorable view, detailing the evolution of the labor market in 2023 and why it remain positive on the labor market and the economy heading into 2024.

In 2023, the economy added a net 2.7 million jobs. This is a significant slowdown after 2021 and 2022 saw net job gains of 7.3 million and 4.8 million, respectively.

But these years’ growth partially reflects a bounce back after the economy lost 9.3 million jobs in 2020. In the five years prior to the pandemic, the economy added an average of 2.3 million jobs per year. As we entered (or at least approached) a “new normal” in 2023, it was natural to expect employment growth to slow back towards a steady-state pace.

Indeed, NCCI expects that employment growth will continue to slow in 2024 as the labor market continues to approach a more balanced state of supply and demand. But that slowing is not necessarily a bad thing.

In 2023, there were numerous downward revisions to employment data, but NCCI does not view this as a major indicator of labor market weakness. Establishment survey data from the monthly employment report that the Bureau of Labor Statistics produces is notoriously prone to near-term revisions. Since more accurate employment counts are not available until multiple quarters later, NCCI accepts the inadequacies of the survey data to gain a real-time assessment of how the economy is evolving.

While 2023 revisions have mostly been in one direction (down), post-revision data remains consistent with the story of a labor market that has mostly recovered from the pandemic and is experiencing slower, steadier growth.

On average, the initial labor market reports in 2023 overestimated employment growth by about 37,000 jobs per month. Had the initial print been correct throughout the year, 2023 would have seen a net gain of 3.1 million jobs, indicating an even stronger labor market than already suggested by the 2.7 million adds.

At an industry level, the payroll picture looks much healthier than the employment picture. Thanks primarily to continued elevation in wage growth, nearly all sectors experienced payroll growth close to or above 5% in 2023. Overall payroll gains, a key metric for workers compensation, remained robust.

The full report is available to learn more.

CWCI Reports Workers’ Comp Inpatient Care Declined by 51.1%

The number of inpatient hospitalizations in the California workers’ compensation system declined 51.1% between 2012 and 2022, spurred by declining claim volume, technological advances and changes in Medicare rules that allow more outpatient procedures, the elimination of redundant payments for spinal surgery hardware, and the expansion of evidence-based guidelines for spinal fusions and other surgeries.  

A new analysis by the California Workers’ Compensation Institute (CWCI) uses data on 28.7 million inpatient hospital stays with 2012 through 2022 discharge dates compiled by the California Department of Health Care Access and Information (HCAI) to measure and compare the use of inpatient services and procedures covered by workers’ compensation, Medicare, Medi-Cal and private coverage.  Workers’ comp is by far the smallest of those payer systems, and excluding hospital stays related to pregnancy, childbirth, and newborns, which are not part of the system, the study found that the number of workers’ comp inpatient stays has declined from 21,505 (0.9% of the total for all four payer groups) in 2012 to 10,516 (0.4%) in 2022.  Between 2021 and 2022, the number of workers’ comp hospitalizations declined by 5.6%, bringing the total decline over the past 11 years to 51.1%.  In comparison, the number of hospital stays paid under private coverage fell 23.5% over that same period, while Medicare hospital stays were only down 1.4%, and those paid by Medi-Cal increased by 45.7% due to surging Medi-Cal enrollments following passage of the Affordable Care Act in 2014.

The CWCI analysis notes that the decline in the number of workers’ comp inpatient stays dates back more than a decade, fueled by fluctuations in the number and types of work injury claims, the adoption of utilization review and independent medical review programs requiring that treatment meet evidence-based medicine standards, and a sharp reduction in the number of spinal fusions.  The most recent data suggest that many of those factors continue to help contain the volume of workers’ comp inpatient stays, as unlike the other systems where inpatient hospitalizations have rebounded after falling sharply in 2020 (the first year of the pandemic), workers’ comp inpatient stays have continued to drop.  The one exception is inpatient spinal fusions, which were up 5.0% between 2020 to 2022, driving spinal fusion hospital stays back up to 18.7% of all workers’ comp inpatient discharges in 2022, the highest proportion since 2016.  

The historical data also show that in the 8 years prior to the pandemic, diseases and disorders of the respiratory system (MDC 04) accounted for 2.5% to 3.0% of all workers’ comp inpatient stays, but with the introduction of COVID claims into the system, that percentage jumped to 7.4% in 2020 and 7.0% in 2021 before falling back to 3.7% in 2022.  With the recent decline in COVID-related hospitalizations, the distribution of workers’ comp inpatient stays by diagnosis shifted back toward pre-pandemic levels.  In 2022, diseases and disorders of the musculoskeletal system and connective tissue were the predominant diagnostic category, representing 60.3% of injured worker inpatient stays, followed by diseases and disorders of the nervous system, accounting for 6.2%.

The breakdown of Surgical vs. Medical (non-surgical) stays across the different payer systems shows that Surgical stays remain far more prevalent in workers’ comp, accounting for 68.4% of inpatient discharges in 2022, compared to 24.1% for Medicare, 20.9% for Medi-Cal, and 31.6% for private coverage.  Among the workers’ comp Surgical hospitalizations, those associated with various types of spinal fusions declined 58.8% between 2012 and 2022, but they still ranked first among Surgical stays and continued to account for a much higher proportion of the Surgical procedures in workers’ comp than in other systems, representing 18.7% of the workers’ comp inpatient surgeries in 2022 compared to 1.3% of the Medicare surgeries, 0.6% of the Medi-Cal surgeries, and 1.8% of the surgeries paid by private coverage.  Joint replacements (major hip and knee joint replacements or reattachment of a lower extremity) represented 8.8% of injured worker inpatient surgeries in 2022, compared to 0.5% in Medi-Cal, 1.0% in private coverage, and 1.5% in Medicare.

Notably, the study found that the decline in workers’ comp inpatient surgeries has been moderated somewhat by the growing number of injured worker spinal fusions and total joint replacements performed on an outpatient basis.  Data from HCAI and CWCI’s Industry Research Information System database  showed that the percentage of spinal fusions provided on an outpatient basis jumped from 0.8% in 2014 to 13.3% in 2022, while the percentage of major joint replacement or revision surgeries performed on an outpatient basis increased from 0.8% in 2014 to 25.9% in 2022, with the biggest increases occurring after Medicare removed these procedures from its “Inpatient Only” list, which is used to determine the appropriate setting for workers’ comp procedures.  

CWCI has issued a Research Update Report on its study, “Utilization of Inpatient Care in California Workers’ Compensation, 2012-2022.”  CWCI members and subscribers can access the report and a summary Bulletin at www.cwci.org.  Others can purchase a copy for $18 at www.cwci.org/store.html.

Researchers Discover Potential Non-Opioid Treatment for Chronic Pain

A new approach to treating neuropathic pain is making a key step forward thanks to researchers at The University of Texas at Austin.

Among the most difficult types of pain to alleviate is neuropathic pain, pain that is usually caused by damage to nerves in various body tissues, including skin, muscle and joints. It can cause patients to suffer feelings like electric shocks, tingling, burning or stabbing. Diabetes, multiple sclerosis, chemotherapy drugs, injuries and amputations have all been associated with neuropathic pain, which is often chronic, sometimes unrelenting and affects millions of people worldwide. Many of the available pain medications are only moderately effective at treating this type of pain and often come with serious side effects, as well as risk of addiction.

Now researchers at UT Austin, The University of Texas at Dallas and the University of Miami have identified a molecule that reduces hypersensitivity in trials in mice by binding to a protein they have shown is involved in neuropathic pain.

The findings appear in the journal Proceedings of the National Academy of Sciences.

We found it to be an effective painkiller, and the effects were rather long-lived,” said Stephen Martin, the June and J. Virgil Waggoner Regents Chair in Chemistry at The University of Texas at Austin and co-corresponding author of the paper. “When we tested it on different models, diabetic neuropathy and chemotherapy-induced neuropathy, for example, we found this compound has an incredible beneficial effect.”

The new compound, dubbed FEM-1689, does not engage opioid receptors in the body, making it a possible alternative to existing pain medications linked to addiction. In addition to reducing sensitivity, the compound can help regulate the integrated stress response (ISR), a network of cellular signaling that helps the body respond to injuries and diseases. When well regulated, the ISR restores balance and promotes healing. When it goes awry, the ISR can contribute to diseases such as cancer, diabetes and metabolic disorders.

It’s our goal to make this compound into a drug that can be used to treat chronic pain without the dangers of opioids,” Martin said. “Neuropathic pain is often a debilitating condition that can affect people their entire lives, and we need a treatment that is well tolerated and effective.”

NuvoNuro Inc., a company co-founded by Martin and other authors on the paper, was recently awarded a grant from the National Institutes of Health HEAL Initiative, which funds research to find scientific solutions to the national opioid crisis, to create a drug based on their findings.

This work is the culmination of a wonderful five-year collaboration with our colleagues at UT Austin and is a great example of academic drug discovery pushing the field of non-opioid pain therapeutics forward,” said Theodore Price, a professor of neuroscience at The University of Texas at Dallas and co-corresponding author of the paper. “Our funding from NIH on this continuing project through our spin-out company, NuvoNuro, has the potential to take us toward clinical development in the next few years, which is extraordinarily exciting.”

Muhammad Saad Yousuf, Eric T. David, Stephanie Shiers, Marisol Mancilla Moreno, Jonathan Iketem, Danielle M. Royer, Chelsea D. Garcia, Jennifer Zhang, Veronica M. Hong, Subhaan M. Mian, Ayesha Ahmad and Benedict J. Kolber of The University of Texas at Dallas;  James J. Sahn and Hongfen Yang of UT Austin; and Daniel J. Liebl of University of Miami Miller School of Medicine were also authors on the paper.

The research was funded by the National Institutes of Health, Natural Sciences and Engineering Research Council of Canada and the Robert A. Welch Foundation.

Insureds May Video Record Participants During Examination Under Oath

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.”

Ethics Ratings of Nearly All Professions Down in U.S.

Americans’ ratings of nearly all 23 professions measured in Gallup’s 2023 Honesty and Ethics poll are lower than they have been in recent years. Only one profession — labor union leaders — has not declined since 2019, yet a relatively low 25% rate their honesty and ethics as “very high” or “high.”

Nurses remain the most trusted profession, with 78% of U.S. adults currently believing nurses have high honesty and ethical standards. However, that is down seven percentage points from 2019 and 11 points from its peak in 2020.

At the other end of the spectrum, members of Congress, senators, car salespeople and advertising practitioners are viewed as the least ethical, with ratings in the single digits that have worsened or remained flat.

Gallup began measuring the honesty and ethics of various professions in 1976 with annual updates since 1990. Several professions have been included every year, while others have been asked on a rotating basis over time. The latest ethics ratings are from a Dec. 1-20, 2023, poll in which about 800 U.S. adults rated each of 23 professions.

All but one of the professions — veterinarians — were measured in both 2019 and 2023. The honesty and ethics ratings of the 22 other careers have declined by an average of six points since 2019. Twelve of the 13 professions tested in both 2022 and 2023 show at least slightly lower ratings in the past year, except for labor union leaders.

Gallup last asked about veterinarians in 2006, when 71% of U.S. adults viewed them as highly or very highly ethical. This compares with the latest 65%.

In addition to nurses and veterinarians, four other occupations have majority-level positive ratings — engineers, dentists, medical doctors and pharmacists.

Ethics ratings for five professions hit new lows this year, including members of Congress (6%), senators (8%), journalists (19%), clergy (32%) and pharmacists (55%).

Meanwhile, the ratings of bankers (19%), business executives (12%) and college teachers (42%) tie their previous low points. Bankers’ and business executives’ ratings were last this low in 2009, just after the Great Recession. College teachers have not been viewed this poorly since 1977.

The image of many professions — particularly those in the medical field — sharply improved in 2020 amid the COVID-19 pandemic. However, that effect was short-lived, and many ratings have since declined to all-time lows. Almost all professions are now viewed less positively than they were a year ago and four years ago. A select few — led by nurses for the 22nd consecutive year — maintain overall positive ratings.

WCAB Panel Reviews Criteria to Set Aside C&R for Incompetence

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.”

Opinion Defines When Ending Forced Arbitration Act “Dispute” Arises

Southern California Medical Center, Inc., is a community clinic that provides care to low income and medically uninsured patients. The Center’s chief medical officer is physician Mohammad Rasekhi. In July 2016, the Center hired Omar Kader to serve as the chief financial officer. Approximately 18 months later, Kader became the chief operating officer. In May 2018, Kader signed his first agreement to arbitrate disputes with the employer.

Kadar claimed in a lawsuit that he was sexually harassed and assaulted by Rasekhi at various times in 2018 and 2019. On June 25, 2019, Kader signed a new arbitration agreement agreeing to arbitrate “employment disputes” with the Center, the human resources provider Modern HR, Inc., or any of their respective employees or officers.

Eight subsequent incidents of sexual harassment and sexual assault allegedly took place between September 2019 and February 28, 2022. Kader alleged that in July 2021, the Center’s chief executive officer Sheila Busheri began making false statements about Kader to justify retaliating against him.

Congress enacted the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the Act; 9 U.S.C. §§ 401, 402), which invalidates predispute arbitration agreements in certain circumstances. The Act became effective on March 3, 2022.

Following the effective date of the Act, Kader filed a complaint with the DFEH in May 2022, and requested an immediate right-to-sue notice. DFEH closed the complaint and issued a right-to-sue notice on May 27, 2022. That same day, Kader filed a complaint against the Center, Rasekhi, Busheri, six of the Center’s board members, Modern HR, and two additional entities.

He alleged causes of action for sexual harassment, discrimination on the basis of race, national origin and/or sex, failure to prevent discrimination and harassment, retaliation, intentional infliction of emotional distress, negligence, sexual battery, and defamation. It was unclear from the complaint whether Kader complained about Rasekhi’s conduct to anyone other than Rasekhi. Kader alleged he felt that he could not report Rasekhi’s conduct to the Center or its related entities without suffering retaliation

The defendants filed a motion to compel arbitration and argued that the Act did not apply because: (1) Kader’s claims accrued prior to the effective date of the Act, and (2) the arbitration agreement was signed after the conduct giving rise to sexual harassment or sexual assault took place.

The trial court denied the motion to arbitrate based on the Act. The Court of Appeal affirmed in the published case of Kader v. Southern Cal. Medical Center, Inc. – B326830 (January 2023).

A statutory note to the Act adds: “This Act, and the amendments made by this Act, shall apply with respect to any dispute or claim that arises or accrues on or after the date of enactment of this Act.” (Pub.L. No. 117-90, § 3, reprinted in notes foll. 9 U.S.C. § 401.)

The Center defendants contend the arbitration agreement in this case is not a “predispute” arbitration agreement because the conduct allegedly began before Kader signed the arbitration agreement.

The Court of Appeal concluded the date that a dispute has arisen for purposes of the Act is a fact-specific inquiry in each case, but a dispute does not arise solely from the alleged sexual conduct. A dispute arises when one party asserts a right, claim, or demand, and the other side expresses disagreement or takes an adversarial posture. In other words, “[a] dispute cannot arise until both sides have expressed their disagreement, either through words or actions.”  Until there is a conflict or disagreement, there is nothing to resolve in litigation.

“In the present case, there is no evidence that a dispute existed between the parties prior to or at the time of signing the new arbitration agreement on June 25, 2019. Kader alleged three incidents of sexually harassing or assaultive conduct took place before the agreement was signed, but there is no evidence that any dispute yet existed.”

The dispute in this case arose in May 2022, after the effective date of the Act. The trial court properly concluded that the Act applied to invalidate the predispute arbitration agreement in this case.