Tag: 2024 News

Jennifer Reveles filed an Application for Adjudication of her claim of injury while employed by the State of California Sierra Conservation Center.

On May 8, 2023, defendant filed a petition seeking an order compelling applicant to complete, sign and return medical releases, and that should applicant fail to do so, that the Workers’ Compensation Appeals Board (WCAB) suspend applicant’s entitlement to benefits.

On June 29, 2023, the parties proceeded to trial, framing for decision defendant’s May 8, 2023 Petition to Compel, and “whether defendant has to depose Applicant if further information is required [that is] not contained in the medical release.”

A Findings of Fact and Orders (F&O) issued by the Workers’ Compensation Administrative Law Judge on August 1, 2023, which ordered Reveles to list the medical treatment received during the last 10 years to the neck, bilateral upper extremities, and bilateral wrists. The WCJ further ordered that any additional information sought by defendant would need to be obtained by deposition.

The WCJ’s Opinion on Decision notes that the order complies with section 4663(d), and that section 5708 allows depositions to be admitted into evidence as part of proceedings before the WCAB.

Applicant filed a Petition for Removal which was granted, and the the decision of August 1, 2023 was rescinded in the panel decision of Reveles v State of California Sierra Conservation Center – ADJ16783231 (April 2025)

In her Petition for Removal applicant contends that the order to disclose medical treatment is not authorized under Labor Code section 4663(d), and that the WCJ’s order is premised on defendant’s demand for information, which is functionally equivalent to written interrogatories.

Applicant further asserts that scope of the compelled disclosure will require applicant to list medical treatment she has received during the last 10 years, including doctors, medical facilities, addresses, locations, parts of body treated, types of treatment, and the approximate date(s) of treatment.

Applicant cites Lubin v. Berkley East Convalescent Hop. & Mission Ins. Co.3 (1976) 41 Cal.Comp.Cases 283 [1976 Cal. Wrk. Comp. LEXIS 2480], wherein a panel of the Appeals Board noted that “in most cases the specific provisions of the Labor Code and of our rules relating to discovery will provide adequate tools to the practitioner,” and that only “in very rare instances, submission of written interrogatories to an opposing party may be the only practical and feasible way of obtaining adequate discovery.“

Applicant asserts that the record does not support the necessity of interrogatories in lieu of other discovery vehicles available to defendant.

Hardesty v. McCord & Holdren, Inc. (1976) 41 Cal.Comp.Cases 111 Section 4663(d) requires that, “[a]n employee who claims an industrial injury shall, upon request, disclose all previous permanent disabilities or physical impairments.” (Lab. Code, § 4663(d).) Thus, while the section contemplates disclosure of specified disability or impairment, it does not require the employee to disclose all prior medical treatment.”

The WCAB panel therefore agreed with applicant that the order that she disclose prior medical treatment to specified body parts does not comport with the disclosure required by section 4663(d).

Defendant’s Petition to Compel “fails to explain how compelling applicant’s authorization to disclose an unlimited medical treatment history comports with the requirement for disclosure of disability or impairment pursuant to section 4663(d).”

However, the WCAB Panel went on to say “Irrespective of the requirements of section 4663(d), however, the WCJ retains significant discretion in resolving discovery disputes arising under the provisions of the Labor Code and our rules regarding pre-trial discovery.

In Hardesty v. McCord & Holdren, Inc. (1976) 41 Cal.Comp.Cases 111 [1976 Cal. Wrk. Comp. LEXIS 2406] “we explained that ‘in most cases the specific provisions of the Labor Code and of our rules relating to discovery will provide adequate tools to the practitioner, and that he should not be encouraged to go beyond them in search of other remedies. In those cases where the Labor Code and our rules do not provide a sufficient remedy, ‘the trial judge has, and should exercise[,] the authority conferred on him by § [10330] of our rules to issue such interlocutory orders relating to discovery as he determines are necessary to insure the full and fair adjudication of the matter before him, to expedite litigation and to safeguard against unfair surprise.’ “

“Thus, and insofar as the defendant seeks to compel discovery in the form of written disclosure of prior medical treatment, defendant must establish why the specific provisions of the Labor Code and our rules relating to discovery are otherwise inadequate. Here, defendant offers no argument for the need to resort to written discovery, nor does it aver previously unsuccessful discovery efforts. Because defendant does not assert that less burdensome vehicles for discovery are unavailable to defendant, and because the record reflects no such requests, we are persuaded that defendant’s requests for written disclosures are unduly burdensome.”

Djeneba Sidibe, Jerry Jankowski, Susan Hansen, David Herman, Optimum Graphics, Inc., and Johnson Pool & Spa (“Plaintiffs”) represent a certified class of individuals and businesses in Northern California who paid health insurance premiums to certain health plans run by Aetna, Anthem Blue Cross, Blue Shield of California, Health Net, and United Healthcare.

Plaintiffs are or were insured by health plans that contract with Sutter, a healthcare system that spans 24 hospitals, five medical foundations, and 40 ambulatory surgery centers.

Plaintiffs allege that Sutter charged supracompetitive rates to these health plans, which the health plans in turn passed on to Plaintiffs by charging higher premiums. Plaintiffs are therefore “indirect purchasers” of Sutter’s services, and their “theory of antitrust impact depends on two separate overcharges”: an overcharge by Sutter to the health plans, and an overcharge by the health plans to Plaintiffs.

Aetna Health of California Inc., Aetna Live Insurance Company, Anthem Blue Cross, Blue Shield of California, United Healthcare Services Inc., and Kaiser Foundation Health Plan Inc., are Intervenors in this action.

This litigation was filed in 2012 and has proceeded for over a decade. The lawsuit was certified as a class action in 2020, allowing it to proceed on behalf of millions of Californians with health plans from specific insurers.

The district court initially set a damages period beginning on September 28, 2008. This was four years before Plaintiffs sued in September 2012, reflecting the statute of limitations for all three statutes. Second, the district court granted summary judgment to Sutter on Plaintiffs’ monopolization claims (section 2 of the Sherman Act) and for all claims between 2008 and 2010. Thus, the damages period began on January 1, 2011. Third, the district court granted several of Sutter’s motions in limine to exclude evidence..

The case proceeded to trial in February 2022 at a San Francisco Federal District Court on Plaintiffs’ claims under the Cartwright Act only. Following a four week trial a jury returned a verdict in favor of Sutter. Plaintiffs appealed the entry of final judgment in favor of Sutter.

The 9th Circuit Court of Appeals reversed the district court’s entry of final judgment and remand for a new trial in the published case of Sidibe et. al. v Sutter Health -22-15634 (June 2024)

On appeal Plaintiffs contended that the district court impermissibly excluded relevant evidence, failed to instruct the jury to consider Sutter’s anticompetitive purpose, failed to instruct the jury that the relevant purchasers are the health plans, and wrongly denied Plaintiffs’ motion for sanctions against Sutter for the destruction of evidence.

In the 98 page Opinion, the Court of Appeals first addressed Plaintiffs’ contention that the district court contravened California law when it omitted the word “purpose” from the jury instructions on Plaintiffs’ unreasonable course of conduct claim and that the legal error was not harmless.

The panel held that the district court contravened California law by removing the word “purpose” from the Judicial Council of California Civil Jury Instructions and thus failing to instruct the jury to consider Sutter’s anticompetitive purpose as to the unreasonable course of conduct claim, and that the legal error was not harmless.

Plaintiffs’ second contention is that the district court abused its discretion in excluding pre-2006 evidence and that the error was prejudicial.

The panel held that the district court abused its discretion under Fed. R. Evid. 403 in excluding as minimally relevant all evidence of Sutter’s conduct before 2006, which was five years before the specific contracts that Plaintiffs alleged caused them harm were negotiated and took effect.

The excluded evidence concerned the inception, Sutter’s stated purpose, and effects of the conduct challenged during the trial. The panel held that Sutter failed to rebut the presumption that the error prejudiced Plaintiffs because, among other things, the excluded evidence would have rebutted Sutter’s testimony and arguments at trial.

For the foregoing reasons, the district court erred in failing to instruct the jury to consider Sutter’s anticompetitive purpose and in excluding highly relevant pre-2006 evidence. Accordingly, the Court of Appeals reversed the district court’s entry of final judgment and remand for a new trial.

Dissenting, Judge Bumatay would affirm the jury verdict.

The industrial claim of Ayana Spencer stems from a 2019 incident at an Oakland Unified School District elementary school, when the mother of a third-grader (and, also, a former student) confronted her over her treatment of those children.

This parent was reportedly “known to be using drugs (crack and marijuana and alcohol)” and was familiar to Ms. Spencer from the time the older child began at the school in 2005.

Spencer called the police, who came and escorted the mother from the school. Ms. Spencer left work early, called Kaiser’s mental health facility and, thereafter, her own therapist, who took her off work. Defendant paid temporary disability benefits beginning May 4, 2019, through January 6, 2020, when Spencer returned to a modified position with the school district.

She had an earlier 2008 incident in which a custodian, disguised with wig and sunglasses and reportedly armed with a semi-automatic weapon, attacked her from behind and pistol-whipped her, causing lacerations and lasting psychological trauma diagnosed as post-traumatic stress disorder or PTSD.

Spencer missed relatively little time from work from this earlier incident, however, though she did continue in therapy and took prescription medications for a time. The parties engaged an agreed medical evaluator (AME), Dr. Richard Lieberman, who reported on November 10, 2009, that applicant’s injury had stabilized, with a GAF3 score of 60 or 15% permanent impairment, of which he apportioned 10% to non-industrial causes. The first workers’ compensation case resolved by a stipulated award of 27% permanent disability with a need for further medical treatment.

Dr. Lieberman reëxamined Ms. Spencer in 2016, concluding in his report of June 16, 2016, that she no longer showed signs of PTSD. The AME at this point did find a GAF score of 64 and recommended limiting further treatment.

In the current 2019 case, the parties have engaged a qualified medical evaluator (QME), Dr. Robbins. March 4, 2020, the QME found her maximally improved, with a GAF score of 65, plus additional impairment for sleep difficulties, amounting to 11% whole-person impairment, of which 75% stems from the 2019 injury and the rest from that in 2008.

The WCJ found that the impairment found by this QME did overlap the impairment in the 2008 injury, and thus did not affect different abilities to compete and earn. (Sanchez v. County of Los Angeles (2005) 70 Cal.Comp.Cases 1440 (appeals board en banc). The result was a finding of injury and need for treatment, but no permanent disability as the entirety of permanent disability was apportioned under Labor Code section 4664..

The apportionment was affirmed in the panel decision of Spencer v Oakland Unified School District –ADJ13057141 (May 2024).

The essence of applicant’s argument on reconsideration is that applicant’s disability to the psyche in 2008 does not overlap with the current disability to psyche in 2019, and thus defendant failed to prove apportionment.

The injury to psyche in both cases was post-traumatic stress disorder. Applicant’s disability was rated the exact same way, using the Global Assessment of Functioning (GAF). The diminished future earnings capacity modifier for both cases was 1.4. It is the same body part, same diagnosis, and same rating method in both cases. On these facts the two disabilities clearly overlap. (See, Kopping v. Workers’ Comp. Appeals Bd., (2006), 142 Cal. App. 4th 1099.)

“The WCJ was correct to apply apportionment under section 4664. … There may be cases where separate and independent disabilities occur to the same body part and the analysis of overlap is more intricate. The record here does not support such a finding.”

The U.S. Department of Labor has published the final rule, “Federal Register – Improving Protections for Workers in Temporary Agricultural Employment in the United States” effective on June 28, 2024.

The final rule strengthens protections for temporary agricultural workers by making several changes to H-2A program regulations to bolster the Department’s efforts to prevent adverse effect on workers in the U.S. and ensure that H-2A workers are employed only when there are not sufficient able, willing, and qualified U.S. workers available to perform the work.

These changes include empowering workers to advocate on behalf of themselves and their coworkers regarding working conditions; improving accountability for employers using the H-2A program; improving transparency and accountability in the foreign labor recruitment process; requiring seat belts in most vehicles used to transport workers; enhancing existing enforcement provisions; improving transparency into the nature of the job opportunity by collecting additional information about owners, operators, managers, and supervisors to better enforce program requirements; clarifying when a termination is “for cause” to protect essential worker rights; and revising provisions and codifying protections that are outdated, unclear, or subject to misinterpretation in the current regulations.

The final rule also strengthens protections for temporary agricultural workers when employers fail to properly notify workers that the start date of work is delayed, and clarifies and streamlines procedures to prevent noncompliant employers from using the Employment Service.

The Department of Labor will host a public webinar on Thursday, June 6, 2024, to educate employers, agricultural associations, farm labor contractors, farmworkers, advocates, and other interested members of the public on the changes to the H-2A and Wagner-Peyser Employment Service programs made by the 2024 Farmworker Protection Final Rule.

Participants of this webinar will learn from the Office of Foreign Labor Certification, the Office of Workforce Investment, and the Wage and Hour Division about the key aspects of this rule.

The Final Rule will become effective June 28, 2024, and OFLC will begin accepting applications subject to the provisions of this rule on August 29, 2024.

Additional Information

– – Final Rule: Improving Protections for Workers in Temporary Agricultural Employment in the United States
– – Frequently Asked Questions
– – H-2A Employer’s Guide to the Final Rule “Improving Protections for Workers in Temporary Agricultural Employment in the United States”
– – Flyer: Protections for Workers Employed Under the H-2A Program (English and Spanish)
– – Flyer: Protections for U.S. Workers Under the H-2A Program (English and Spanish)
– – Proposed rule

Arasely Soto was injured during a routine medical procedure and had to retire from her job as a public school teacher. She sued her medical providers for medical malpractice and also sought disability retirement benefits from the California State Teachers’ Retirement System (CalSTRS).

The Sotos attended a CalSTRS benefits planning session in January 2018. CalSTRS gave them information and documents about applying for disability benefits. The documents explained CalSTRS’s “[r]ight of subrogation” as follows: “[I]f you pursue a claim against a third party for the same impairment that entitles you to a disability benefit from CalSTRS, you must notify us. This is true even if the claim has not yet resulted in a court action. [¶] CalSTRS has the right to participate in the claim by filing our own action against the responsible party, intervening in your claim, or filing a lien against any judgment you may recover. [¶] If you don’t notify CalSTRS and you recover – or have already recovered – a monetary sum from the third party, you may be required to reimburse CalSTRS for part of the costs of your disability benefit.”

One day after the Sotos’ benefits planning session with CalSTRS, they released their claims against Dr. Borna in exchange for a six-figure settlement. Ten days later, Arasely filled out an application for disability benefits. Her application stated that her injuries were caused by employees of the hospital, including Dr. Borna.CalSTRS acknowledged receipt of Arasely’s application for disability benefits in February 2018. That same day, the court in the malpractice action granted the Sotos’ request to dismiss Dr. Borna from the lawsuit.

In May 2018, the Sotos released their claims against the hospital in exchange for a seven-figure settlement. Eight days later, the Sotos dismissed the malpractice action with prejudice.

CalSTRS brought suit against the Sotos, seeking to enforce its right to subrogation or reimbursement. The complaint alleges that CalSTRS is entitled to be reimbursed for Arasely’s disability benefits from her settlement with the malpractice defendants.

CalSTRS moved for summary adjudication on its declaratory relief cause of action, and the Sotos moved for summary judgment. In connection with both motions, the Sotos argued that Civil Code section 3333.1 bars any subrogation claim that CalSTRS would have asserted against the malpractice defendants.

Subdivision (a) of section 3333.1 authorizes a defendant in a medical malpractice action to introduce evidence of a variety of ‘collateral source’ benefits – including health insurance, disability insurance or worker’s compensation benefits.” Subdivision (b) of the statute provides, in turn, that ‘[n]o source of collateral benefits introduced pursuant to subdivision (a) shall recover any amount against the plaintiff nor shall it be subrogated to the rights of a plaintiff against a defendant.”

In opposition, CalSTRS argues that (1) CalSTRS was not a source of collateral benefits for purposes of section 3333.1; (2) Arasely’s disability retirement benefits were never introduced as evidence in the malpractice action; and (3) the statutes governing CalSTRS’s right of subrogation were enacted after section 3333.1, and the later-enacted statutes prevailed.

The trial court ruled in favor of Cal/STERS. The Court of Appeal affirmed the trial court in the published case of Soto v. Super. Ct. -E081902 (May 2024). It expressed no opinion on the parties’ legal arguments concerning the applicability of section 3333.1 in general.

The Legislature enacted section 3333.1 in 1975 as part of the Medical Injury Compensation Reform Act (MICRA), a wide-ranging statutory scheme designed to reduce the cost of medical malpractice insurance ‘by limiting the amount and timing of recovery in cases of professional negligence. MICRA addressed the problem in numerous ways, including by revising certain legal rules applicable to medical malpractice litigation. (

Education Code section 24500 grants CalSTRS “a right of subrogation” for the amounts CalSTRS “paid and became obligated to pay as disability retirement allowances, disability allowances, family allowances, or survivor benefit allowances.” (Ed. Code, § 24500; see Ed. Code, § 22174.)

The Legislature enacted the statutes giving CalSTRS a right of subrogation in 1988. (Ed. Code, former §§ 23300-23305, added by Stats. 1988, ch. 380, § 1, pp. 1699-1700, repealed and reenacted as Ed. Code, §§ 24500-24505 by Stats. 1993, ch. 893, §§ 1-2, pp. 4867, 4973-4974.) According to the legislative history, the CalSTRS subrogation provisions were “patterned” on the subrogation provisions governing the California Public Employees’ Retirement System (CalPERS).

“The CalPERS provisions also incorporate the workers’ compensation statutes, and the pertinent language of the CalSTRS and CalPERS subrogation provisions is nearly identical.”

The workers’ compensation subrogation provisions bar double recovery by an employee who claims workers’ compensation benefits “and also seek[s] damages for the employee’s injury or death from negligent third parties.”

Section 3333.1, subdivision (a), does not specify how jurors should use the collateral source evidence, but “the Legislature apparently assumed that in most cases the jury would set plaintiff’s damages at a lower level because of its awareness of plaintiff’s ‘net’ collateral source benefits.

But the employer’s consent is not required if the settlement includes only the employee’s claim for damages that will not be paid by workers’ compensation benefits. (Lab. Code, § 3859, subd. (b); Marrujo, at p. 978.) That is, the employee may segregate their claim from that of the employer and settle it without the employer’s consent. (Board of Administration v. Glover (1983) 34 Cal.3d 906, 913 (Glover); Marrujo, at p. 978.)

If the employee segregates and settles their claim in that manner, then the settlement is not subject to the employer’s claim for reimbursement of workers’ compensation benefits, while the employer retains its subrogation right “against the alleged tortfeasor to recover payments it had made to its employee.” (Glover, at p. 914; Marrujo, at p. 978; Lab. Code, § 3860, subd. (b).) But if the employee settles an unsegregated claim (i.e., a claim that includes both the employer’s claim for reimbursement of benefits and the employee’s claim for damages not compensated by benefits), then the employer may seek reimbursement out of the settlement proceeds.

The Sotos did not offer any evidence that the malpractice defendants sought to introduce evidence of Arasely’s disability retirement benefits in the underlying action, so section 3333.1 was never triggered. In addition, if the Sotos had offered such evidence, then section 3333.1 would be irrelevant. The same evidence would tend to show that CalSTRS has no reimbursement claim against the Sotos for reasons independent of section 3333.1.