Oakland, CA – Part II of a California Workers’ Compensation Institute (CWCI) research series on low- volume/high-cost drugs used to treat California injured workers identifies three Dermatological drugs, three Opioids, and three Antidepressants that represent a relatively small share of the prescriptions within their therapeutic drug group, but due to high average reimbursements, have become cost drivers, consuming a disproportionate share of the payments. The new report is the second of a three-part series that uses data from the Institute’s Prescription Drug Application to track changes in the distribution of California workers’ compensation prescriptions and pharmacy payments over the past decade, and to identify medications that have a disproportionately large impact on the total amount paid for drugs within their group. The report notes changes in the average payment per prescription for the highlighted drugs over the 10-year study period (2012 through 2021), changes in the percent of the prescriptions dispensed as a brand rather than a generic drug, and factors that contribute to the high cost of the medications. The report reveals that Dermatologicals were the fourth most prevalent drug category in 2021, with 9.3% of the workers’ comp prescriptions, but ranked second (behind Anti-Inflammatories) in total drug spend, consuming 17.3% of all prescription drug payments. That was up from 12.8% in 2012, which the study ascribes to increased utilization and the emergence of high-priced topical analgesics. Diclofenac sodium topicals jumped from 0.5% of all workers’ comp prescriptions in 2012 to 5.4% in 2021 – fourth among all drugs dispensed that year, and they represented 58.1% of the 2021 Dermatological prescriptions, but with inexpensive generics widely available, their average reimbursement was a relatively low $65, so they consumed only 23.5% of the Dermatological dollars. In contrast, the study notes three other low-volume/high-priced drugs that have become Dermatological cost drivers: Diclofenac sodium and adhesive sheets (dispensed as Xrylix kits, in 2021 these kits accounted for just 0.3% of the Dermatological prescriptions, but with an average payment of $4,126, they consumed 7.2% of the dermatological drug spend). Lidocaine/menthol (this drug was dispensed in various forms, but NuLido gel and Terocin patches were key cost drivers. Lidocaine/menthol represented only 1% of the Dermatologicals dispensed in 2021, but at an average of $1,050 per prescription, it accounted for 6.2% of the Dermatological payments. Diclofenac epolamine (dispensed as Flector patches at an average of $570 per prescription, or as generic equivalents at an average of $577, diclofenac epolamine comprised just 1.7% of the 2021 Dermatological prescriptions, but 5.9% of the payments within the group). Opioid use in workers’ comp has been falling for more than a decade and with the adoption of Opioid and Pain Management Treatment Guidelines in late 2017 and a Formulary in 2018, Opioids’ share of the prescriptions continued to drop, falling to 9.4% in 2021 (down from 29.4% in 2012), while their share of the total drug spend fell to 5.8% (down from 26.7% a decade earlier). At the same time, the mix of Opioids used to treat injured workers shifted. The study noted three low-volume/high-priced Opioids that have become cost drivers within their group: Buprenorphine, typically used to treat Opioid Use Disorder for patients in Medication-Assisted Treatment plans, in 2021, it accounted for 5.2% of the workers’ comp Opioids, and with an average payment of $363, it consumed 35.4% of the total Opioid reimbursements – more than any other Opioid. Tapentadol HCl, used when other pain medications do not work well or cannot be tolerated, but only available as a brand drug (Nucynta or Nucynta Extended Release) it represented just 0.6% of the Opioid prescriptions, but at $590 per prescription, it accounted for 6.4% of the total Opioid drug spend. Oxycodone, prescribed for moderate to severe pain, is available in a variety of generic and brand formulations, including extended-release and abuse-deterrent varieties. In 2021, 5.9% of Opioid prescriptions were for oxycodone, and at $145 per prescription, it consumed 16.0% of all Opioid payments. The top four Antidepressants dispensed to injured workers in 2021 represented nearly 2/3 of the Antidepressants used, but all four were relatively low-cost drugs, so they accounted for only 42.5% of the payments in this drug group. In contrast, the study identified three low-volume/high-priced drugs that consumed a disproportionate share of the Antidepressant drug spend: Vortioxetine HBr, used to treat Major Depressive Disorder, remains under patent and is only available as brand-name Trintellex. Available in 5, 10, and 20 mg tablets, this drug carries a black box warning noting an increased risk of suicidal thoughts and behaviors. In 2021, only 1.0% of the Antidepressant prescriptions in California workers’ compensation were for Vortioxetine HBr, but with an average reimbursement of $476, this drug comprised 12.4% of all Antidepressant payments. Desvenlafaxine, an extended-release tablet that comes in various strengths, is used to treat major depression. It is available as a brand drug (Khedezla, Pristiq), with average payments as high as $642 per prescription, but since the introduction of generic versions in 2017, brand versions have declined to 14 to 15% of the prescriptions. Payments for generic desvenlafaxine averaged $58 to $66 from 2019 to 2021, which helped drive down the average reimbursement for this drug. In 2021, desvenlafaxine represented 1.0% of workers’ comp Antidepressants, but the average payment was still $131, so it accounted for 3.5% of the Antidepressant payments. Bupropion HCl is used to treat depression, anxiety, and other mood disorders, and to aid smoking cessation. Available as a brand drug (Wellbutrin, including an extended-release version that tends to be very expensive), or in generic versions, which accounted for 98% of the Bupropion HCl dispensed to injured workers in 2021. Unlike generics, where the average payment declined from $121 in 2012 to $25 in 2021, over that same decade average reimbursements for brand versions of bupropion HCl increased nearly 10-fold from $267 to $2,614. The dominance of generic buproprion HCl has helped contain the total payments for this drug, but the 2% of the prescriptions dispensed as high-cost brand drugs drove the average payment up to $77 in 2021 -- more than three times the $25 average paid for generics. As a result, bupropion HCl, which accounted for 7.6% of the Antidepressant prescriptions in 2021, consumed 16.3% of the Antidepressant payments. CWCI has published more details and analyses on these drugs in a Spotlight Report, Cost-Driver Medications in the Top California Workers’ Comp Therapeutic Drug Groups: Part II, Dermatologicals, Opioids, and Antidepressants . Institute members and subscribers can log on to www.cwci.org and access the report under the Research tab, others can purchase a copy from the CWCI’s online store . Part III of CWCI’s research on low-volume/high-cost medications will focus on medications found in the Musculoskeletal and Ulcer drug categories.

Luna v. Garland (unpub.) "Dagoberto Luna petitions for review of the Board of Immigration Appeals’ dismissal of his appeal of an immigration judge’s denial of his motion to rescind an in absentia removal order. Luna contends he received a defective Notice to Appear that renders the in absentia removal order invalid. We agree. We GRANT Luna’s petition, VACATE, and REMAND for further proceedings." [Hats off yet again to superlitigator Raed Gonzalez !]

Matter of Pougatchev, 28 I&N Dec. 719 (BIA 2023) (2-1) (1) A conviction for burglary of a building under section 140.25(1)(d) of the New York Penal Law is not categorically an aggravated felony burglary offense under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2018), because the statute is overbroad and indivisible with respect to the definition of “building” under New York law. (2) A conviction for displaying what appears to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm while committing burglary under section 140.25(1)(d) of the New York Penal Law necessarily involves the use, attempted use, or threatened use of physical force against the person or property of another and therefore constitutes an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F). CONCURRING AND DISSENTING OPINION: Denise G. Brown, Temporary Appellate Immigration Judge "I respectfully dissent from that portion of the majority opinion that holds that second degree burglary under section 140.25(1)(d) of the New York Penal Law is categorically an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(F) (2018). As an initial matter, I have reservations that this case is an appropriate means through which to establish binding precedent on this issue as the Immigration Judge did not reach it. While the parties have had an opportunity to address the issue through supplemental briefing, we lack the benefit of the Immigration Judge’s reasoning. It is our role to “review” questions of law de novo, 8 C.F.R. § 1003.1(d)(3)(ii) (2023), but there is no underlying decision regarding whether the respondent was convicted of an aggravated felony crime of violence for us to review here. Further, I disagree with the majority’s analysis by which it concludes that a violation of section 140.25(1)(d) of the New York Penal Law is categorically a crime of violence. ... I am not persuaded by the majority’s conclusion that an offense under section 140.25(1)(d) of the New York Penal Law is categorically a crime of violence. I would instead conclude that it is not and that therefore the respondent is not removable as charged." ["Attorney General Merrick B. Garland appointed Denise G. Brown as a temporary Appellate Immigration Judge in July 2021. Judge Brown earned a Bachelor of Arts in 1992 from the University of Michigan, Ann Arbor, and a Juris Doctor in 1995 from the Catholic University of America. From July 2007 to July 2021, she has served as an attorney advisor, Board of Immigration Appeals, Executive Office for Immigration Review. During this time, from March to September 2019, she served on detail as a Special Assistant U.S. Attorney, U.S. Attorney’s Office, Eastern District of Virginia, and from January to July 2017, she served on detail as a temporary Immigration Judge at the Headquarters Immigration Court, EOIR. From December 1999 to July 2007, she served as an Associate General Counsel at the Office of General Counsel, Department of the Air Force. Judge Brown is a member of the District of Columbia Bar."]

USCIS, May 4, 2023 "On December 1, 2020, USCIS implemented a revised naturalization civics test (“2020 civics test”). However, USCIS reverted to using the 2008 test on March 1, 2021. For a brief period of time, USCIS offered both the 2020 and 2008 versions of the test to accommodate certain applicants who may have already been studying for the 2020 test. However, USCIS no longer administers the 2020 civics test, therefore guidance related to this version of the test is no longer necessary. To reduce confusion and ensure that applicants prepare for the appropriate version of the test, USCIS is removing references in the Policy Manual to the 2020 civics test. This guidance, contained in Volume 12 of the Policy Manual, is effective immediately."

State Department, May 19, 2023 "The Department of State is processing visas more efficiently than ever while upholding our national security responsibilities. We are continuously reducing the time required for “administrative processing,” a range of various additional steps that must be taken before a consular officer can complete a visa application, which can include additional national security vetting. We have recently adopted new technology and enhanced coordination to reduce the number of visa applications that require administrative processing on security grounds, while upholding strict national security protections. The Department of State coordinates with federal government partners through the National Vetting Center, which has dramatically reduced the number of visa applicants who wait for administrative processing. Since October 2022, most cases that would have previously required additional administrative processing were resolved immediately without additional, time-consuming handling. National security is our top priority. Before issuing any visa, we ensure that every prospective traveler is subject to extensive security screening. Now, we can do this in a much more streamlined manner."

Angelo A. Paparelli, May 22, 2023 "The famous line from Shakespeare — “The first thing we do is, let’s kill all the lawyers” (Dick the Butcher, Act IV, Scene II, Henry VI, Part II ) — is interpreted in widely divergent ways . My handy AI assistant offers these examples: An expression of frustration with the legal system and the perceived corruption or incompetence of lawyers. A call for the dismantling of the legal system in order to create a more just society. A satirical comment on the way society often scapegoats lawyers for its problems. A reflection of the character’s desire for lawlessness and chaos, as the line is spoken by a character plotting a rebellion. A critique of the excessive power and influence that lawyers can have in society. The line about “attorney-cide” came to me as I pondered how the federal courts and immigration agencies interact with lawyers. Although Section 292 of the Immigration and Nationality Act (INA) provides that a noncitizen in removal proceedings shall have a right to counsel “at no expense to the Government,” and regulations of U.S. Citizenship and Immigration Services (USCIS) at 8 C.F.R. § 292.1 authorize attorneys to represent noncitizens in a variety of immigration benefits requests, federal statutes and immigration officers often plant barriers that impede effective legal representation. Consider these examples: The Supreme Court will soon decide United States v. Hansen and interpret the scope of 8 U.S.C § 1324(a)(1)(A)(iv). This statute makes it a felony if any person “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” According to the Pew Research Center , there were 10.5 million unauthorized noncitizens in the U.S. in 2017, and few knowledgeable observers believe that the number has shrunk in the ensuing years. Unsurprisingly, unauthorized noncitizens often seek counsel from immigration lawyers. Will the lawyers be barred from informing them about several legal avenues that authorize relief from removal or lawful status if the Supreme Court decides Hansen to mean that by providing such guidance the lawyer is “encourage[ing] or induc[ing]” a noncitizen to reside in the U.S. “in violation of law”? Will the lawyer be prohibited from explaining the path to a green card through cancellation of removal or asylum, or about the avenue available to unauthorized workers who are victims of worksite exploitation? We’ll know once the Supreme Court decides Hansen . There is no right to be represented in person by counsel at the border or a port of entry. As a practical matter, the State Department takes the same approach by allowing consular officers to decide if all visa interviews conducted by consular interviews be with counsel present. State provides in its Foreign Affairs Manual, at 9 FAM 602.1-2.b : “Whatever policies are set must be consistent and applied equally, either all attorneys at post must be permitted to attend consular interviews or none can.” Not surprisingly, virtually no consular posts allow attorneys to be present during consular interviews. The American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) tried to change that by submitting a May 24, 2017 “ “Petition for Rulemaking to Promulgate Regulations Governing Access to Counsel ” (for which I served as a coauthor), as allowed by 5 U.S.C § 553(e) of the Administrative Procedure Act. Needless to say, the Trump Administration did not embrace the proposal. AILA and AIC should refresh the proposal based on intervening experiences and ask the Biden Administration to adopt it USCIS has provided a method for electronic filing of applications to extend or change nonimmigrant status but only in situations where the noncitizen applicant “ will not require legal or accredited representation at any point in your request .” What USCIS does not say is that noncitizen e-filers must comprehend and comply with 17 pages of dense text in the instructions to the application form, and that the form’s instructions are as binding as agency regulations . I offer an additional view on the “kill-all-the-lawyers” line beyond those offered by my handy AI assistant. I don’t speak for all attorneys, but my take is that by eliminating, if not killing off, immigration lawyers, federal immigration agencies get away with infringing the legal rights of noncitizens and the American businesses and families who care about them."

Cyrus D. Mehta & Jessica Paszko, May 23, 2023 "Just a couple of months ago we considered the options available to terminated H-1B workers who want to become entrepreneurs . Since then, layoffs have not abated and we’ve continued thinking about the options available to laid off nonimmigrant workers. This time, we consider the options available to H-1B workers whose employers have filed I-485 adjustment of status applications on their behalf before they were laid off and the I-485 has been pending for less than 180 days. For starters, laid off workers can remain in the US while their adjustment applications are pending. They are authorized to remain in the US so long as their I-485 application has not been denied. They should also request that the employer not withdraw the prior approved I-140. Unlike 8 CFR § 214.2(h)(11) which obligates employers to notify the USCIS when an H-1B worker’s employment has ended before the end of their authorized period of stay – as that could trigger back wage liability – employers are under no such obligation with respect to I-140 beneficiaries. Therefore, the laid off workers can make a case against the employer’s withdrawal of the I-140. Under 8 CFR § 205.1(a)(3)(iii)(C), a petition that is withdrawn 180 days or more after its approval, or 180 days or more after the associated adjustment of status application has been filed, remains approved unless its approval is revoked on other grounds. Thereafter, the laid off workers should seek new employment. Although they may be able to rely on employment authorization that will be issued based on the I-485 filing, it is recommended that their new employer file an extension of H-1B status on their behalf. They must do that within the 60 day grace period that they have in H-1B status from the termination under 8 CFR § 214.1(l)(2). Remaining in H-1B status provides an added layer of security in case the I-485 is denied for any reason. However, once 180 days passes from the I-485 filing, and they can port, they would be more secure even if there is no underlying H-1B status. If the laid off worker’s adjustment application has been pending for 180 days or more, then they can port to a new employer, and even self-employment, in a same or similar occupation that was the basis of their I-140 petition under INA § 204(j). Once they can port under § 204(j), the labor certification and I-140 petition are preserved, and the foreign worker can be granted permanent residence. 8 CFR § 245.25(a)(2)(ii)(B) even allows a beneficiary to port to a new employer based on an unadjudicated I-140 , filed concurrently with an I-485 application, so long as it is approvable at the time of filing. The ability to port under § 204(j) when the I-485 application has been pending for 180 days or more, however, is the best case scenario. If the laid off worker’s adjustment application has not been pending for 180 days or more, then he or she cannot port to a same or similar occupation under § 204(j). Although the laid off worker can remain in the US throughout the pendency of their adjustment application even if no longer employed by the sponsoring employer , the worker may face a bit of a predicament if the USCIS takes an action on the pending adjustment application, for instance, by issuing a Request for Evidence (RFE) or scheduling an interview. If the RFE requests an I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j), and the adjustment application has not been pending for 180 days or more, then the laid off worker is in trouble. As there is usually a 90 day deadline to respond to RFEs, the laid off worker may be able to submit a completed Supplement J, either signed by a new employer or by themselves if self-employed, if the 180th day of submitting their adjustment application comes around before their RFE response deadline. But of course, there may be individuals who are not as lucky. If they do not respond to the RFE, then the adjustment will likely be denied. On the other hand, under INA § 204(j), they cannot submit a Supplement J if 180 days have not elapsed since the filing of their adjustment application. If the adjustment application is subsequently denied, they can submit an I-290B Motion to Reopen or Reconsider. There is at least an arguable basis that the motion might work The laid off worker faces a similar problem if they are scheduled for an adjustment interview that will fall on a date that is before the 180th day of their I-485 application filing and will thus be unable to produce an executed Supplement J. While one can reschedule a USCIS interview due to a medical or family emergency, unforeseen events, or other personal circumstances such as a wedding, funeral, or important family event that conflicts with the interview, one may not be able to reschedule an adjustment interview on account of not being able to present a Supplement J, but it is always worth trying. Suppose the laid off worker does not have to respond to any RFEs or attend any interviews and USCIS approves the adjustment application even though the laid off worker no longer works for the employer that sponsored the green card or intends to work for that employer – then what? From the foreign worker’s perspective, they can argue that they were willing to work for the employer who sponsored them but the employer was not willing to give them the job in accordance with the I-140 petition and they should still be granted adjustment of status. There are decisions holding that as long as the noncitizen took up the job or reported for work, and then left later due to a change in intention (as a result of finding a more attractive job elsewhere), this individual could not be found excludable or deportable. In Matter of Cardoso , 13 I.&N. Dec. 228 (BIA 1969), the respondent, a Portuguese citizen, was sponsored to work for a Rhode Island employer as a braider tender. Upon reporting to the employer with his wife for work, the foreman indicated that there was a possibility that both would be laid off if they both worked for the employer. Based on the foreman’s well intentioned advice, who also stated that he would keep the braider tender job offer open, the respondent worked elsewhere first as a shoelace tipper and then as a bobbin machine operator. The BIA held that it could not impugn the validity of such an admission where a person reported for work and did not take up the job under the circumstances described above or if the person worked for some time with the certified employer but quit because he did not like the work or found a better job elsewhere. See also Matter of Marcoux , 12 I.&N. Dec. 827 (BIA 1968) (respondent who left certified trainee weaver job after 5 days for a fiber glass repairer job because he did not like the former job was not found to be deportable because he still had a valid certification at time of entry). Notwithstanding, the USICS during a naturalization interview may still determine that lawful permanent residence status was not properly obtained, or even prior to naturalization, the USCIS could rescind that status. Even if the foreign worker can argue that they intended to accept employment there may have still not been a valid offer of employment after the foreign worker was terminated. See Matter of Rajah , 25 I.&N. Dec. 127 (although the foreign worker is not required to be employed at the time of adjustment, he must still show the continued existence of an offer of employment as set forth in the labor certification and I-140, and must also demonstrate an intent to accept employment). Therefore, it would be safest if there has been a termination during the twilight period – when the I-485 has not been pending for 180 days – to have another employer file an H-1B extension. Even if the USICS denies the I-485 application if there is an RFE before the 180 days, which cannot be complied with, the foreign worker will be in H-1B status through another employer and that new employer can recapture the old priority date under 8 CFR § 204.5(e) when starting all over with a new labor certification and I-140 petition. If the date is current at the time the I-140 will be filed, then a concurrent I-485 application can also be filed. Given the glacial pace in adjudicating I-485 applications to completion, it is unlikely that the USCIS will currently issue an RFE within 180 days from its filing, although this blog provides guidance on steps that need to be taken just in case the USCIS becomes efficient!"

Glenn Kessler, Washington Post, May 24, 2023 "“Hundreds of people on our terrorist watch list are crossing our borders.” — Sen. Tim Scott (R-S.C.), in his presidential announcement speech, May 22. In a speech formally announcing that he is running for the GOP nomination for president, Sen. Tim Scott of South Carolina made this claim as part of an attack on President Biden’s handling of immigration policy. It’s an interesting example of how politicians can twist facts and make a misleading impression. ... That brings us to the second part of Scott’s statement — that these people are “crossing our borders.” They aren’t. The people listed in the data cited by Scott’s spokesman were stopped at the border; they did not cross. As for the people who tried to sneak over, they may have briefly entered the country but they were caught. Stephen W. Yale-Loehr , an immigration law professor at Cornell Law School, said using the phrase “crossing our borders” was an exaggeration. “They were caught at the border, either at a port of entry or between a port of entry,” he said. “So perhaps ‘caught attempting to cross the border’ would be more accurate.” Denise L. Gilman , co-director of the Immigration Clinic at the University of Texas School of Law, noted in an email that the encounters with people on the watch list are not common and the “numbers are minuscule in the scheme of the numbers of border crossers who arrive in the United States.” Both Gilman and Yale-Loehr noted that not everyone on the watch list is a terrorist. “It is well documented that many people are erroneously placed on watch lists and that there are other significant problems with these lists so that an encounter with a person on the list does not really mean an encounter with a terrorist,” Gilman said. Scott’s statement “forms part of a trend that suggests that there are security risks or crises at the border when there is simply no evidence that asylum seeker arrivals at the border raise any security threat,” she added."

ICE, May 2, 2023 "In February 2023, the U.S. Department of State (DOS) provided updated guidance that consular officers can now issue an F or M student visa up to 365 days in advance of an international student’s program start date. This new guidance does not change the requirement for issuing Forms I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” in the Student and Exchange Visitor Information System (SEVIS), paying the I-901 SEVIS Fee or seeking admission into the United States."

By Christopher Mahon Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study examines the many details and variables of this question. The study was conducted by Nicholas Broten of the Pardee RAND Graduate School, Michael Dworsky of the RAND Corporation, and David Powell of the RAND Corporation, and their article describing the study, “Do Temporary Workers Experience Additional Employment and Earnings Risk After Workplace Injuries?” was published by them in the Journal of Public Economics (May 2022). Although other studies have been written that analyze the injuries of and compensation for temporary workers in the workers’ compensation system (studies which may concentrate on occupational health for temporary workers and rates of workers’ compensation claims, for example), this is the first to examine how employment and earnings risk for temporary employees who file workers’ compensation claims compare to direct-hire employees who also file claims under similar circumstances. The study’s conclusion is that, yes, temporary workers experience significant additional employment and earnings risk after workplace injuries, and that this is an important factor to consider when formulating workers’ compensation policies. Research Methodology The study primarily used data from the California Workers’ Compensation System from the years 2005-2012 and included data from over 1.5 million injured workers. Accounting for differences in types of injury and individual occupations, the authors present five tables which present (1) injury count by class-coded occupations, (2) differences in earnings from pre-injury employment through third year of post-injury, (3) differences in employment reductions across three years from time of injury, (4) differences in employment reduction across three years for medical-only injuries, and (5) measurements for incremental uncompensated income loss for temporary workers. They also include an appendix table listing, for the state of California, the occupations that have the highest share of temporary workers; data for this table was drawn from the Bureau of Labor Statistics Occupational Employment Statistics (OES) program. Using Difference-in-Difference Estimates, Triple-Difference Estimates, and Poisson statistical analysis, the authors are careful to account for variables such as pre-existing differences among temporary and direct-hire workers, pre-tax and after-tax earnings, tax-exempt workers’ compensation benefits, and economic differences resulting from the Great Recession of 2007-2009, but the study finds for all samples the same general pattern for difference in earnings and employment risks for the two sets of workers. Key Findings Although it is true that both temporary workers and direct-hire workers are treated equally under workers’ compensation law (for example, cash benefits are determined by the same statutory formulas and medical care is offered with no patient cost-sharing), the economic circumstances of temporary workers after injury are less favorable for temporary workers than for direct-hire workers. Temporary workers incur greater employment and earnings risk after injury than do direct-hire workers under the same circumstances. The risk is greater during the first year after injury and declines by several percentage points during the second and third years, but, even at the third year, the greater risk is large and statistically significant. After injury, the employment propensity of temporary workers decreases by 9.6 percentage points more than for direct-hire workers. The employment propensity gap between temporary workers and direct-hire workers narrows during the second and third years after injury but is still statistically significant. The earnings risk for temporary workers also is greater than for direct hires. Over three years, the loss of earnings for temporary workers is 15.6% greater than for direct-hire workers, although the loss can be affected by other factors, such as indemnity benefits, which reduce the loss to 13.9% when temporary disability benefits are considered and to 12.9% when permanent disability benefits are considered. Temporary workers who incurred medical-only injuries were considered in a separate analysis sample since medical-only injuries may be more severe and result in high levels of medical spending, but even accounting for this difference, the general pattern of employment and earnings risk for temporary workers remained the same. Also, statistically, temporary workers do not suffer more severe injuries than direct-hire workers, so the findings indicate earning loss and employment prospects for temporary workers are not a result of more severe injures relative to direct-hires. By state law, both temporary workers and direct-hires are treated equally under the workers’ compensation system; it is not surprising that medical spending for both temporary workers and direct-hire workers is about the same. The study included many occupational categories. Although the risk was not measured separately for each occupational category, the categories provide insight into how widely temporary workers are used across the labor force and the number of injuries occurring for workers in each category. Total injury count for temporary workers were highest in occupations involving moving, packaging, and assembly in such areas as general merchandise warehouse and low-wage carpentry. Injury counts were lower in printed circuit board assembling, dried and citrus fruit packing, and medical and electrical instrument manufacturing. Temporary worker injuries accounted for anywhere from 25.4% (Warehouses – General Merchandising) to 11.1% (Electrical Apparatus Manufacturing) of the total injury count in each class code. The actual breakdown for each of the occupation class codes for temporary workers in the study consisted of these categories: Warehouses – General Merchandise (25.4% of total injuries). Fruit – Dried Fruit Packing (21.5% of total injuries). Carpentry (NOC) – Low Wage (15.5% of total injuries). Garbage, Ashes or Refuse Dump Operations (11.9% of total injuries). Printed Circuit Board Assembling (11.8% of total injuries). Stores – Clothing/Dry Goods Wholesale (11.6% of total injuries). Fruit – Citrus Fruit Packing (11.4% of total injuries). Warehouse – Self Storage (11.3% of total injuries). Medical Instrument Manufacturing Electronic (11.3% of total injuries). Electrical Apparatus Manufacturing (11.1% of total injuries). Total injury count for temporary workers varied across occupational class codes and may not directly correlate with the percentages listed above. Still, Warehouse-General temporary workers experienced an injury count of 7,655 in a sample of 30,178 total injuries, and Electrical Apparatus Manufacturing temporary workers experienced an injury count of 416 in a sample of 3,758 total injuries. Looking at the data for both percentages of work force and total injuries for temporary workers provides insight into the climate for workers’ compensation claims across the labor market in addition to providing insight into the wide variety of temporary workers across the labor force. Study Limitations The study does not detail the injury and economic risk for independent contractors and “gig” workers, but the authors believe the conclusion reached for temporary workers can shed significant light on the additional risks for other nonstandard workers such as independent contractors and “gig” workers. By design, the study focuses on employment and economic risk for temporary workers after injury, but there are other factors (which the authors allude to) which create economic disadvantage for temporary workers. Understanding these factors would provide a greater understanding of temporary workers’ place in the worker compensation’ benefit system. These factors relate to the fact that temporary workers are more likely to have significantly less annual and daily income than their direct-hire counterparts. They have lower weekly wages, shorter tenure at a work place, and may work only part-time. For such reason, labor trajectories are different for temporary workers than for direct-hire workers. Takeaways Much of the article was devoted to explaining research methodologies. However, the salient and significant takeaways from the study are these: In the first year after injury, compared to direct-hire workers, the employment propensity of temporary workers decreases by 9.6 percentage points more than for direct-hire workers. Propensity decreases by less percentage points over the next two years but the gap between temporary workers and direct-hires is still significant. In the three years after injury, earnings risk for temporary workers decreases 15.6% more than for direct-hire workers. The percentage is lower when considering the effect of temporary disability benefits and permanent disability benefits but is still statistically significant. Other factors such as annual income and labor trajectories for temporary workers also affect the economic situation of temporary workers and place them in a more difficult economic situation than direct-hire workers. The study did not specifically provide data for independent contractors and “gig” workers but notes there could be comparable patterns for these workers, also. Temporary workers are employed (and are injured) in a wide variety of occupational categories in many different industries and economic sectors. Policy makers for workers’ compensation benefits need to consider the special circumstances of temporary workers as they develop policy. Should a separate category be created for this new and growing segment of the labor force? Should benefits be adjusted according to larger economic and employment risk? The authors note that workers’ compensation is meant to provide partial insurance against income loss; it is not meant to provide complete insurance against the economic misfortune that may be experienced by injured workers. It is not surprising to them that workers’ compensation does not fully insure against additional employment and income risk for injured temporary workers. Still, as they point out with plentiful evidence, the risk is significant. And the number and role of temporary and nonstandard workers in the labor force continues to change and evolve. Commentary Today’s direct-hire may be tomorrow’s “gig” worker. In May of 2023, the Writers Guild of America West went on strike against the motion picture industry, in part, to prevent exactly that. Economic and technological forces continue to impact the labor landscape. As economies, technologies, and worker arrangements continue to evolve, so must the workers’ compensation laws that help to guide and protect them. © Copyright 2023 LexisNexis. All rights reserved.

By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board In 2022 there were 7,490 wildfires in California. They burned 362,455 acres, destroying homes and businesses and causing 9 fatalities. In large part, these wildfires can be attributed to 15 years of severely dry conditions in the State. [ 1 ] Then between December 31, 2022, and March 26, 2023, California was hit by a period of heavy rainfall caused by multiple atmospheric rivers, resulting in flooding that damaged homes, businesses and caused at least 22 fatalities. [ 2 ] The U.S. Global Change Research Program [ 3 ] reports that Earth’s climate is changing faster than any period in the history of modern civilization and in the USA, alone, causing a wide range of impacts across every region of the country. According to The Fourth National Climate Assessment, Vol. I: Climate Science Special Report (2017), [ 4 ] in the last 115 years, global annually averaged surface air temperature has increased by nearly 2° F, making this period the warmest in modern history, and resulting in record-breaking extremes in weather events. Temperatures in California have risen almost 3° F since the beginning of the 20th century. In the 126-year period from 1894 to 2020, the 6 warmest years have all occurred since 2014. [ 5 ] Periodically California has experienced extreme precipitation events caused by atmospheric rivers, resulting in damaging flooding. The report describes California’s most serious climate hazards as severe drought and flooding. The California Legislative Analyst’s study, Climate Change Impacts Across California (LAO, April 4, 2022) (LAO report) concurs. The LAO report describes California’s five key climate hazards as: (1) higher temperatures and extreme heat events; (2) more severe wildfires; (3) more frequent and intense droughts; (4) flooding due to extreme precipitation events; and (5) coastal flooding and erosion from sea‐level rise. Climate Change and Workers’ Compensation You might ask how is climate change relevant to work, in general, and to workers’ compensation, specifically? For one, research has demonstrated a relationship between temperature and occupational health. Both high and low temperatures increase injury rates. (Upjohn Study) [ 6 ] More days of extreme heat and wildfire smoke increase the risk of worker injuries, illnesses, and fatalities, especially for those who work out of doors without adequate air conditioning or ventilation (LAO report). Outdoor work isn’t the exclusive province of agricultural workers or firefighters, either. Indeed, many different occupational categories perform a substantial amount of outdoor work. Among a few are police officers and other first responders, landscapers, postal workers, utility workers, commercial fishery workers, recreational workers, and construction workers. More days of extreme heat are especially problematic for outdoor workers. While it may be possible for outdoor workers to avoid heat exposure in regions where hot temperatures are rare by adjusting work schedules, it is far less possible for outdoors workers in warmer climates to adjust their work schedules when days of extreme heat are common. The Upjohn study found that in regions where temperatures regularly top 90° F, another day of extreme heat can impact worker health. The Upjohn study matched workers’ compensation injury rate data from across Texas, one of the warmest states, with workers’ compensation injury rate data from across the United States, and matched both with daily temperature data. A day exceeding 100° F increased workers’ compensation claim rates over the next three days by 3.5 to 3.7%. Heat exhaustion and heat stroke were common among the claimed injuries. Extreme heat exposure can also exacerbate chronic conditions and can cause reduced cognitive function, which leads to increased risk of injury and decreased productivity. [ 7 ] A worker’s cognitive impairment is especially problematic in industries engaged in hazardous work. Moreover, the Bureau of Labor Statistics reports that between 2011 and 2019 there were 344 work-related deaths due to heat exposure. This figure, the report cautions, likely reflects an undercount as many workplace safety experts believe that a significant number of heat-related deaths are either underreported or misreported as another cause, such as heart attack. [ 8 ] Even though manufacturing and warehouse work is primarily performed indoors, workers employed in those occupations similarly face the risk of excessive heat exposure. Some facilities lack air-conditioning systems altogether, while in others air-conditioning and ventilation systems are inadequate given the size of the facility and/or the heat generated by equipment used by workers to perform their work. Commercial delivery drivers are also more likely to work in settings without adequate cooling. [ 9 ] Some workers, such as firefighters, are exposed to both excessive heat conditions as well as wildfire smoke, which is especially problematic. Even on a short-term basis, exposure to wildfire smoke can have serious health consequences, like eye and respiratory tract irritation. It can also aggravate pre-existing respiratory and cardiovascular conditions. As warmer temperatures cause more sustained dry periods, the risk of wildfires increases. [ 9 ] Sustained periods of drought are associated with dryer soil. Coccidiomycosis (“Valley Fever”) is a fungal infection that spreads by spores in dry soil. It can more easily proliferate in a drier climate with increased dust storms. All workers who primarily work outdoors are at increased risk for exposure to the infection. (LAO report). There is little doubt that as our climate continues to warm, workers across many different industries are at risk of an increase in work-related injuries attributable to hotter temperatures. The National Safety Council reports that in 2021 the total cost of work injuries in the United States was $167 billion. This amount includes wage and productivity losses, medical costs, administrative costs, and employer costs. [ 10 ] Under California’s workers’ compensation system, an employer may be liable for workers’ compensation benefits arising from a workers’ heat-related injury. The Upjohn study finding that a day with a temperature exceeding 100° F increased workers’ compensation claim rates over the next 3 days by 3.5 to 3.7% is a strong indication that absent preventative measures, California employers can expect to see an increase in workers’ compensation claims as our climate continues to warm. An increase in workers’ compensation claim rates isn’t the entire picture, either. An increase in workers’ compensation claims likely means a loss of productivity, as well, which translates to additional losses for both the employer and employee. What It Could Mean to Work in a Warmer Climate While climate change will impact all of us, workers, and employers in certain parts of California will be more directly impacted than others. Take, for example, the Central Valley, where agriculture and farming are primary industries. Often referred to as “USA’s breadbasket,” the Central Valley is one of our country’s most productive agricultural regions. We often take for granted the wide array of produce, fruits, nuts, dairy, meat, and poultry readily available to consumers year-round. But climate change could impact all of that. Prolonged drought and hotter temperatures could cause agricultural production to shift away from crops that are heavily reliant on irrigation towards others that are more drought tolerant. Currently our agricultural industry relies heavily on both abundant water and human labor to ready fields, plant crops, and harvest crops. But less water sources and different crops and/or agricultural methods could mean that there is a need for less human labor, or that workers will be required to relocate and learn new skills and practices. New crops and/or agricultural methods could mean the use of new technologies and practices that are costly for employers. It could also mean a loss of productivity. In addition to agriculture, construction and manufacturing are other large industries throughout the Central Valley. Warmer temperatures pose new challenges for these industries, as well. Many California workers work primarily outdoors or in large manufacturing and warehouse environments. Hotter days could mean reductions in work hours so that outdoor work is performed only during the coolest times of day or the coolest seasons of the year. Such restrictions could mean a loss of productivity, adversely impacting both workers and employers. Hotter days will similarly impact both manufacturing and warehousing industries by requiring employers to either restrict work hours to the coolest times of day or by investing in larger air-conditioning and ventilation systems. Either way, there will be costs to both employers and workers. The Central Coast is not immune from the effects of climate change, either. The intense period of rain from January through March 2023, brought widespread flooding to that region. In the Pajaro Valley, where much of California’s berries (strawberries, blueberries, blackberries, and raspberries) are grown, the Pajaro River flooded, putting hundreds of acres of farmland under water, and preventing farm workers from attending to their jobs. As many as several thousand people were evacuated from the town of Pajaro when it flooded. Most of the evacuees were agricultural workers, and the displacement interrupted their work. Over 1,500 acres of one large berry farm’s operations were flooded. That represents an investment of tens of millions of dollars that could be entirely lost if the berries cannot be harvested. [ 11 ] Widespread flooding in the Central Valley between January 2023 and March 2023 brought a lost California lake back to life. In fact, the once dry lakebed has become so large with the wet weather that water experts predict it will take at least a year or longer to drain. Meanwhile, the town of Tulare, which is midway between Fresno and Bakersfield, has seen more than 100 square miles of roads, farms, and homes in the formerly dry lakebed completely submerged in floodwaters. Climate scientists predict that even more land will become submerged this summer as the record snowfall in the Sierra Nevada mountains melts into the rivers that feed the lake. Former agricultural land is underwater and both employers and workers have been displaced. Damages to date are reported to be in the range of hundreds of millions of dollars. Now landowners, local, state, and federal officials are faced with how to proceed forward. Homes and infrastructure must be protected, and the dominant agricultural industry does not want to see more of its high value fields of cotton, tomatoes and pistachios submerged in water. [ 12 ] In the Sierra Mountains the primary industries are logging, grounds maintenance, recreation, and tourism. The impact of climate change (hotter days and/or more precipitation) will be felt by these industries as well. Outdoor work and activities could be restricted during periods of intense heat and/or wildfires. More precipitation could also result in flooding and landslides that prevent tourism, restrict work activities, and expose firefighters and emergency responders to increased occupational risks. Fewer tourists and recreational activities translate to losses by both workers and employers engaged in hospitality and recreational industries. As sea levels continue to rise there is a risk that high-tide flooding will disrupt port-based commerce and the movement of goods. Such a disruption would adversely impact workers and their employers. It could also impact consumers as well. (LAO report) Mitigating the Impacts of Climate Change upon Workers’ Compensation How can we mitigate the effects of climate change? Government, of course, will play a critical role by implementing measures and adopting policies that aim to reduce emissions of greenhouse gases. California has already been a leader in its efforts to offset the impact of a warming climate. Employers will also play a crucial role. When hot days prevent or restrict work activities, worker productivity will be reduced because workers will need more breaks or will only be able to work a reduced shift. A decrease in worker productivity typically means higher costs, less profit and longer wait times for goods and services such as construction and manufacturing. The use of new technology and innovation may be able to mitigate some of the consequences of reduced productivity. If not, affected employers will face losss and the geographic regions impacted will see a decline in economic growth. Even if employers implement adaptive measures to reduce the impact of climate change on their employees, they will likely incur additional expenses. For example, installing more robust air-conditioning and ventilation systems in manufacturing plants and warehouses could be very costly. Likely larger air-conditioning and ventilation systems would increase employer’s utility expenses, too. Air-conditioning is not a feasible option in agricultural, landscaping, construction, and even recreational industries. In those regions where outdoor workers are increasingly exposed to wildfire smoke, employers might choose to reduce the occupational risk of wildfire smoke inhalation by providing their workers with masks and air filters. These accommodations could be very costly. Further, in those regions prone to flooding, it might be necessary for an employer to relocate its facilities to another area. The costs of relocation and/or the modification of a structure would almost certainly be a costly endeavor. Safety of workers is paramount, and implementing measures to protect workers from the impact of a warming climate will be a costly undertaking for employers. The state of California is also an employer, and like other governmental and private sector employers, the effects of climate change impose additional costs. As an example, during the period 2015-2016, California spent $1.9 billion to suppress wildfires. By 2020-2021, the cost to suppress wildfires increased to $2.9 billion. Costs for workers’ compensation and death benefits are likely to increase as California’s firefighters and emergency responders are faced with the effects of more catastrophic weather events. Hotter and more extreme weather makes it a near certainty that California will need to vastly expand its workforce, not only to respond to climate emergencies, but also to hire additional engineers, scientists, and other experts to develop strategies and technologies to mitigate the impact of climate change. (LAO report) Legislative and Regulatory Efforts to Mitigate the Impact of Climate Change on Workers, Employers and Workers’ Compensation Just as California has been a leader in implementing policies and measures to reduce the emission of greenhouse gases, it has also been a leader through the adoption of legislation and regulations to protect employees from sustaining injuries attributable to the impact of climate change. For example, in 2006 the California Occupational Health and Safety (CalOSHA) Standards Board adopted regulations requiring employers to provide workers with drinking water and shade at outdoor workplaces during hot periods. The regulations also require employers to train supervisors and staff to identify and prevent heat-related injuries. In 2016, the Legislature adopted a law directing the CalOSHA Standards Board to adopt regulations regarding indoor heat illness prevention. In 2020, the CalOSHA Standards Board adopted emergency regulations to require employers to provide their employees with N95 masks for voluntary use whenever the Air Quality Index for particulate matter 2.5 is greater than 150. The regulation requires use of N95 masks whenever the Air Quality Index for particulate matter 2.5 exceeds 250 unless other safety conditions are met. In 2021 a law was passed that includes farmworkers as essential workers during health emergencies like wildfire smoke events. During health emergencies, farmworkers and other essential workers must be provided with personal protective equipment from the state stockpile. In addition, employers are required to provide wildfire smoke training to their employees. The 2022 Legislative session was particularly robust regarding climate change related legislation. The Legislature adopted Government Code § 15562.5, which requires the Labor and Workforce Development Agency to establish an advisory committee to evaluate the effects of climate change on California’s workers, businesses, and the economy. The Advisory Committee can contract with academic institutions/organizations to conduct a study to address time away from work and lost wages due to heat, the frequency with which different types of occupational injuries occur at given temperatures and humidity levels, underreporting of occupational injuries and illnesses due to heat exposure, and evidence-based measures to minimize the effects of heat exposure on workers. Next, Public Resources Code § 71410 was adopted. That new statute requires the California Department of Insurance to develop an extreme heat warning and ranking system in coordination with the California Department of Environmental Protection and the Department of Public Health. Labor Code § 6721 was amended to require CalOSHA to create a heat safety standard for temperatures exceeding 105° F. In addition, the amendments established a stricter wildfire smoke standard and requires the use of respiratory equipment when the air quality index is 200 or more. The Legislature also added Health and Safety Code § 123576, which requires the Department of Public Health to use findings from research on the impacts of extreme heat on perinatal health to develop guidance for pregnant women working outdoors. The current 2023 Legislative Session is equally robust on the climate change front. A group of Senators introduced a trio of bills all geared toward transparency and accountability regarding climate change mitigation. Senate Bill 253 (Wiener) would require all large corporations ($1 billion annual revenue) that do business in California to publicly disclose their greenhouse gas emissions in line with the Greenhouse Gas Protocol, considered to be the gold standard of emissions reporting. Senate Bill 261 (Stern) would require the State to contract with a climate reporting organization to review climate related financial risks facing companies doing business in California and preparing an annual public report. Senate Bill 252 (Gonzalez) would bar the California Public Employees Retirement Board and the State Teachers Retirement System from investing in major fossil fuel companies. Meanwhile, on May 18, 2023, the CalOSHA Standards Board conducted a public hearing on proposed regulation 3396, Title 8, California Code of Regulations. Section 3396 would create a standard to minimize heat-related injury and illness among workers working in indoor places of employment. The Initial Statement of Reasons for the proposed regulation observes that workers in such indoor facilities as warehouses, commercial kitchens, fast food restaurants, foundries, shipping containers, canning plants, manufacturing, and factories often work in hot environments without air-conditioning and are unable to take advantage of hot weather cease work policies that apply to their counterparts working in outdoor places of employment. In research regarding the necessity of a standard for indoor work environments, the CalOSHA Standards Board reviewed workers’ compensation injury data for heat-related injuries and illnesses of workers in indoor employment settings during the period 2010 to 2018. The research revealed a significant increase in the number of heat-related injury and illness claims between 2010 and 2018. [ 13 ] The proposed regulation would require employers to provide ample water to and encourage the frequent consumption of water by their employees. It would also require the indoor facility to include a cooling area where employees are able to cool down during their work shifts. Employers would be required to monitor employees within the cooling room to discern any signs of heat illness or injury and to facilitate necessary emergency treatment as required. Additionally, it would require employers to provide training to employees on heat-related injury and illness, the process of acclimatization, and the importance of water during periods of extreme heat. [ 14 ] Where Do We Go from Here? No doubt there will always be those who deny that our Earth’s climate is changing. Nonetheless, the overwhelming scientific evidence credibly demonstrates that the temperature of Earth is warming. Over the 126-year period from 1894 to 2020 recorded temperatures in California increased by nearly 3° F. Occupational injuries, illnesses, and fatalities attributable to heat-related conditions are equally well-documented. If California’s climate continues to warm as is predicted absence successful mitigation, there most likely will be more heat-related injuries, illnesses, and fatalities. Warmer days coupled with more extreme rain weather events and the predicted rise in sea levels could be devastating. Many different industries will be affected, and employers and workers will face new and daunting challenges. The economic impact of unimpeded climate change could be catastrophic. It will require an “all hands-on deck” approach. Some industries will need to adapt current practices to meet the new climate realities. Many employees will need to learn new skills and/or relocate to other regions of the state where they can work and live safely. Local and State government will need to be especially proactive to implement policies and enact laws and regulations in furtherance of health and safety. Now is the time for innovation and creative solutions to mitigate the impact of our changing climate. Fortunately, California is ahead of many other States in recognizing the realities of climate change, its impact upon workers and employers, as well as its impact upon all Californians. California adopted a Climate Adaption Strategy Plan to promote the State’s climate resilience. [ 15 ] On April 4, 2023, Governor Newsom issued a progress report on actions taken in 2022 to achieve the goals of the plan. [ 16 ] There is a lot of work ahead to achieve the goals, but we have a clear roadmap. Workers and employers should be encouraged by the focus on promoting worker heath and safety and ensuring a vibrant California economy in the decades and centuries ahead. Sources https://www.climateresilience.ca.gov . https://www.latimes.com/california/story/2023-01-10/tracking-the-deaths-from-californias-winter-storms . https://www.globalchange.gov/climate-change . https://science2017.globalchange.gov . https://statesummaries.ncics.org/chapter/ca/ . Climate Change and Occupational Health: Are There Limits to Our Ability to Adapt, Upjohn Institute Working Paper 19-299 ( https://doi.org/10.17848 up 19-299 ) (Upjohn study). Max, Kiefer et al., Worker Health and Safety and Climate Change in the Americas: Issues and Research Needs, 40(3) REV. PANAM SALUD PUBLICA, 192 (2016), https//:www.ncbi.nlm.nih.gov/pmc/articles/PMC5176103/ . https://www.dol.gov/newsroom/releases/osha/osha20220511#:~:text=From%202011%2D2019%2C%20the%20Bureau,due%20to%20environmental%20heat%20exposure . George Town Environmental Law Review, Workers Among Most Vulnerable to Climate Change , Jan.12, 2021. https://injuryfacts.nsc.org/work/costs/work-injury-costs/ . https://pajaronian.com/pajaro-floods-wreak-havoc-agriculture/ . https://www.sfchronicle.com/climate/article/tulare-lake-flooding-california-17905335.php . https://www.dir.ca.gov/oshsb/documents/Indoor-Heat-ISOR.pdf . https://www.dir.ca.gov/oshsb/documents/Indoor-Heat-proptxt.pdf . https://www.climateresilience.ca.gov . https://www.climateresilience.ca.gov/overview/docs/20240405-Climate_Adpatation_Strategy_Report_2023.pdf . © Copyright 2023 LexisNexis. All rights reserved.

CALIFORNIA COMPENSATION CASES Vol. 88, No. 5 May 2023 A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review CONTENTS OF THIS ISSUE LexisNexis Online Subscribers: You can link to your account on Lexis+ to read the complete headnotes and court decisions, en banc decisions, writ denied summaries, panel decisions and IMR decisions. Appellate Court Cases Not Originating with Appeals Board People, The v. Ayala; People, The v. Ayala, Lexis Workers’ Compensation Insurance Fraud—Restitution Orders—Court of Appeal, affirming trial court’s judgment, held that trial court did not abuse its discretion in calculating restitution owed to various workers’ compensation insurance companies by defendants charged with workers’ compensation insurance fraud and tax fraud, based on amount of premiums lost by insurers due to defendants’ false payroll reporting, when Court of Appeal found that defendants’ pleas of no contest... People, The v. Gaspar, Lexis Workers’ Compensation Insurance Fraud—Restitution Orders—Court of Appeal upheld defendant’s conviction under Insurance Code § 700(b) for conducting unlawful insurance transaction without license, when Court of Appeal found that substantial evidence supported jury’s finding that defendant, who owned and managed Professional Employer Organization (PEO), provided invalid workers’ compensation insurance coverage declarations to multiple businesses which contracted with her PEO for payroll services, tax services, and obtaining workers’ compensation insurance, collected more than... Sadeghi v. Hao Li, Lexis Exceptions to Workers’ Compensation Exclusivity Doctrine—Sufficiency of Pleadings—Sham Pleading Doctrine—Court of Appeal, reversing trial court’s judgment of dismissal, held that trial court erroneously applied sham pleading doctrine to dismiss plaintiff’s complaint alleging multiple tort causes of action against his employer Pinscreen’s cofounder and CEO, defendant Dr. Hao Li, who terminated plaintiff within his first working hour and then physically attacked him with help of co-workers, when Court of Appeal concluded that sham pleading doctrine, which precludes amendment of pleadings to alter or omit harmful facts or allegations inconsistent... Workers’ Compensation Exclusivity Doctrine—Tort Claims Against Employer—WCAB, reversing trial court’s judgment of dismissal, held that trial court erred in sustaining demurrer to plaintiff’s causes of action for battery and intentional infliction of emotional distress against defendant Dr. Hao Li, his employer Pinscreen’s cofounder and CEO, who terminated plaintiff within his first working hour and then physically attacked plaintiff with help of coworkers, when Court of Appeal concluded that... Sutton (Tony) v. Saputo Cheese USA, Inc., Lexis Workers’ Compensation Exclusivity Doctrine—Dual Employers—Pleading Affirmative Defenses—Court of Appeal, affirming trial court’s summary judgment in favor of defendant Saputo Cheese USA, Inc. (Saputo) in plaintiff’s action for negligence and premises liability, held that trial court did not err in determining Saputo was statutorily barred based on workers’ compensation exclusivity doctrine from bringing tort action against Saputo, when record revealed that Select Staffing (plaintiff’s general employer) assigned plaintiff to work as temporary employee at Saputo (plaintiff’s special employer) pursuant to 2011 service agreement, thereby creating dual employment relationship, and plaintiff was working at Saputo as forklift operator when he suffered injury on 8/19/2017, and Court of Appeal reasoned that... Digests of WCAB Decisions Denied Judicial Review California Department of Forestry and Fire Protection v. W.C.A.B. (Russell, Russ), Lexis Average Weekly Wage—Earnings—Presumption of Maximum Earnings for Retired Firefighters—WCAB, after granting reconsideration, held that applicant who suffered industrially-related prostate cancer while employed as fire captain from 6/1/63 until his retirement in 6/2005 was entitled under Labor Code § 4453 to maximum permanent disability indemnity rate in effect on date of his injury in 2014, despite minimum post-retirement earnings at that time, when WCAB applied… County of Sacramento v. W.C.A.B. (Munso, Nathan), Lexis Injury AOE/COE—Neutral Risk Doctrine—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant sustained injury AOE/COE in form of stroke on 10/18/2017, when WCAB found that stroke occurred while applicant, employed as sergeant for Sacramento County Sheriff’s Department, was traveling on business and was commercial traveler at time stroke occurred and was therefore in course of his employment, that medical evidence indicated stroke resulted from carotid artery dissection likely caused by some unknown physical trauma occurring within 12 hours of stroke, but potentially more than 12 hours beforehand, that because applicant suffered amnesia... Lazcano (Patricia) v. W.C.A.B., Lexis Medical Provider Networks—Physician Pre-Designation—WCAB, granting reconsideration, rescinded WCJ’s finding that applicant who suffered admitted industrial injury while employed as administrative assistant on 1/5/2016 and on 8/20/2019 was entitled to receive medical treatment outside defendant’s medical provider network (MPN) based on defendant’s failure to properly notify Applicant of her right to predesignate physician pursuant to Labor Code § 4600(d) and 8 Cal. Code Reg. § 9780.1, and substituted new findings that applicant was not entitled to treat outside MPN at defendant’s expense... Perry (Michael A.) v. W.C.A.B., Lexis Workers’ Compensation Judges—Disqualification—WCAB, denying defendant’s petition to disqualify WCJ, found that defendant did not establish good cause for disqualification pursuant to Labor Code § 5311 and Code of Civil Procedure § 641, when WCAB reasoned that WCJ may be disqualified when, among other grounds, WCJ has formed unqualified opinion as to merits of action [Code of Civil Procedure § 641(f)] or demonstrated bias toward either party [Code of Civil Procedure § 641(g)], that under 8 Cal Code Reg. § 10960, petition for disqualification must be supported by affidavit or sworn declaration detailing facts establishing one or more grounds for disqualification, that WCJ’s expressions of opinion in discharge of his or her official duties... Other WCAB Decisions Denied Judicial Review McKenzie (Adamina) v. W.C.A.B., Lexis Petitions for Writ for Review—Premature Petitions—Court of Appeal denied applicant’s Petition for Writ of Review without prejudice to refile should WCAB issue final order disposing of issues raised in petition on merits, when applicant’s Petition was premature under Labor Code §§ 5900 and 5901 given that no final order had yet been issued by WCAB. Mikail (Mojgan) v. W.C.A.B., Lexis Temporary Disability Indemnity—WCAB, denying reconsideration, affirmed WCJ’s award of temporary disability to applicant who suffered industrial injury while employed as school psychologist on 3/8/2011, when WCAB found that award was consistent with amounts due to applicant under Labor Code for full 104-week timeframe, and rejected applicant’s assertion that WCAB erred in failing to award full salary retroactively and other benefits, which applicant did not establish she was entitled to. San Mateo County Transit District v. W.C.A.B. (Grant, Gayle), Lexis Temporary Disability—Post-Retirement Earning Capacity—WCAB, after granting reconsideration, affirmed decision in which WCJ found that applicant retired from her employment as bus driver due to 11/9/2018 industrial left knee injury, and that she was entitled to temporary disability benefits for post-retirement period of temporary disability, when applicant credibly testified that she retired because she was unable to perform duties of her job as bus driver due to her left knee injury, that she cannot return to workforce in any capacity until she undergoes left knee surgery prescribed by her treating physician, which defendant has denied...

Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below. CA - NOTEWORTHY PANEL DECISIONS Copyright 2023 by Matthew Bender & Company, Inc. William Arey , Applicant v. Magic Mountain, LLC, Hartford Accident and Indemnity Company, administered by Broadspire, Defendants W.C.A.B. No. ADJ10266237—WCAB Panel: Commissioners Razo, Snellings, Deputy Commissioner Schmitz Workers’ Compensation Appeals Board (Board Panel Decision) Opinion Filed May 16, 2023 Publication Status: CAUTION: This decision has not been designated as a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision, as these decisions are subject to appeal. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. LexisNexis editorial consultants have deemed this panel decision noteworthy because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California. Disposition: The Petition for Reconsideration is granted , and the December 29, 2022 Findings of Fact and Order is affirmed in part and amended in part . Medical-Legal Procedure— Ex Parte Communications—WCAB, after granting reconsideration, affirmed WCJ’s finding that there was no ex parte communication between applicant and agreed medical examiner (AME) based on fact that applicant’s sister provided information regarding applicant’s medical history and symptoms at AME evaluation, when WCAB, relying on reasoning in Belling v. United Parcel Service, Inc. , 2015 Cal. Wrk. Comp. P.D. LEXIS 738 (Appeals Board noteworthy panel decision), and Trujillo v. TIC-The Industrial Company , 2019 Cal. Wrk. Comp. P.D. LEXIS 90 (Appeals Board noteworthy panel decision), found that family member conveying essential information to medical evaluator on behalf of injured employee under circumstances in which employee is unable to do so is considered to be communication by employee and does not constitute either ex parte or otherwise prohibited communication under Labor Code § 4062.3, that applicant’s 9/10/2015 industrial head/brain injury significantly compromised his ability to recall his medical history and, according to AME, assistance of applicant’s sister was essential to medical-legal evaluation, that reasoning in Belling and Trujillo supported WCJ’s determination that given applicant’s impairment, participation of applicant’s sister in AME’s evaluation was both necessary and permissible, and that to prohibit applicant from effectively conveying, through his sister, his symptoms and medical history as part of medical-legal evaluation would risk “absurd results,” which Court of Appeal has cautioned against; WCAB further observed that defendant misapplied doctrine of collateral estoppel in asserting that propriety of communication between applicant’s sister and medical-legal evaluator was previously litigated and resolved in defendant’s favor, because issue was never tried or decided on its merits but rather was subject of off-record discussion between WCJ and parties. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11[18]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[4][e].]

This document is scheduled to be published in the Federal Register on 05/26/2023 "The Department of State (the Department) is delaying the effective date of a final rule that appeared in the Federal Register on March 28, 2023, to provide for a 60-day delay in the effective date after receipt of the final rule in the Congress. DATES: The effective date of the rule amending 22 CFR part 22 published at 88 FR 18243, March 28, 2023, is delayed until June 17, 2023."

ACLU of Florida, May 22, 2023 "A group of Chinese citizens who live, work, study, and raise families in Florida, as well as a real estate brokerage firm in Florida that primarily serves clients of Chinese descent, are filing a lawsuit to combat Florida’s discriminatory property law, SB 264. Signed by Gov. Ron DeSantis, the legislation unfairly restricts most Chinese citizens — and most citizens of Cuba, Venezuela, Syria, Iran, Russia, and North Korea — from purchasing homes in the state. Unless the courts act, the law will take effect on July 1, 2023. The plaintiffs are represented by the American Civil Liberties Union, the ACLU of Florida, DeHeng Law Offices PC, and the Asian American Legal Defense and Education Fund (AALDEF), in coordination with the Chinese American Legal Defense Alliance (CALDA). Today’s lawsuit argues that SB 264 will codify and expand housing discrimination against people of Asian descent in violation of the Constitution and the Fair Housing Act. It will also cast an undue burden of suspicion on anyone seeking to buy property whose name sounds remotely Asian, Russian, Iranian, Cuban, Venezuelan, or Syrian. Gov. DeSantis has argued that this law is necessary to protect Florida from the Chinese Communist Party and its activities. But this misguided rationale unfairly equates Chinese people with the actions of their government, and there is no evidence of national security harm resulting from real estate ownership by Chinese people in Florida. “Florida’s discriminatory property law is unfair, unjustified, and unconstitutional,” said Ashley Gorski, senior staff attorney with the ACLU’s National Security Project . “Everyone in the United States is entitled to equal protection under our laws, including citizens of other countries. If SB 264 goes into effect, it will profoundly harm our clients and countless other immigrants in Florida.” Florida’s dangerous new law recalls similar efforts over the past century to weaponize false claims of “national security” against Asian immigrants and other marginalized communities. In the early 1900s, politicians across the country used similar justifications to pass “ alien land laws ” prohibiting Chinese and Japanese immigrants from becoming landowners. These racist policies not only hurt immigrants financially, but also severely exacerbated violence and discrimination against Asian communities living in the United States. Over time, these laws were struck down by the courts or were repealed by state legislatures because they violated the Constitution’s equal protection guarantees. “All Asian Americans will feel the stigma and the chilling effect created by this Florida law, just like the discriminatory laws did to our ancestors more than a hundred years ago,” said Clay Zhu, attorney with DeHeng Law Offices PC and co-founder of CALDA . “We shall not go back.” Over a dozen state legislatures have recently introduced similar legislation, and many of these bills likewise target people from China. Florida’s bill was the first of this wave of legislation to be enacted into law. “Xenophobic policies and rhetoric toward China stoke racial bias,” said Bethany Li, AALDEF legal director . “We have repeatedly seen how policies in the name of national security have harmed Asian Americans — from immigration restrictions, to the WWII incarceration of Japanese Americans in camps, and post-9/11 surveillance. Failing to call out the discriminatory impacts means our community will continue to experience racism, violence, and the erosion of rights.” “Asian immigrants are part of Florida’s fabric. For hundreds of years, they have contributed to our communities and have made this state their home,” said Daniel Tilley, legal director for the ACLU of Florida . “The discriminatory policies pushed by the DeSantis administration will not go unchecked. The Constitution protects us all.” Related Documents COMPLAINT - Shen v. Simpson "

OFLC, May 26, 2023 1. OFLC announces case submission for the Form ETA 9089 for PERM in FLAG on June 1, 2023 OFLC previously announced a delay to the date on which it will transition PERM submission and processing to the Foreign Labor Application Gateway (FLAG) and the concurrent implementation of the revised Form ETA 9089. In response to stakeholder requests, OFLC used this delay to work with the Department’s Office of Chief Information Officer to provide filers the option to link prevailing wage determinations to a PERM application where users no longer have access to the FLAG account from which the prevailing wage request was submitted. Information and guidance on how to use this option can be found in the addendum to the Form ETA 9089 User Guide on the PERM program page on FLAG. As stated in OFLC’s announcement on May 11, 2023, OFLC will not accept applications in the legacy PERM Online system after 6:59 pm EST on May 31, 2023, however, mailed-in applications post-marked on or before May 31, 2023, will be accepted in the legacy system. The PERM module in FLAG will be fully deployed on June 1, 2023. Please Note: The external submission functionality in the PERM Online system is the only part of the system which will be disabled on May 31, 2023, at 6:59 PM EST; the PERM Online system will otherwise remain operational. Users who have pending applications in the legacy PERM Online System can still upload responsive documents to an Audit request or request for information, withdraw applications, request reconsideration or appeal, and use the Help Desk Inquiry system as normal. 2. OFLC announces case technical guidance for case submission of the Form ETA 9089 Filers have been able to use the case creation functionality in the PERM module in the Foreign Labor Access Gateway (FLAG) since April 24, 2023. During the time that functionality has been available, OFLC has received and reviewed numerous help desk inquiries pertaining to the filing of the revised version of Form ETA 9089. As a reminder, OFLC does not provide case-specific guidance on the filing procedures. Each case has its own specific requirements and circumstances. OFLC strongly encourages all applicants to review the PERM regulations, the frequently asked questions (FAQs), and the Instructions to the Form ETA 9089 for general guidance. OFLC will continue to review received Help Desk inquiries and will provide additional guidance in the form of new FAQs. OFLC has identified one question which has been so commonly received we believe it should be addressed prior to the PERM module in FLAG being fully deployed to prevent confusion when filers try to submit PERM applications.

Muzaffar Chishti, Kathleen Bush-Joseph, MPI, May 25, 2023 "U.S. border enforcement finds itself in an uncertain new era now that the pandemic-era Title 42 border expulsions policy has been lifted. The chaos predicted to occur in the days after the May 11 end of the public-health emergency declaration did not immediately materialize. The unexpected dip in arrivals could be seen as a sign of a new normal, but may also be a temporary pause before a renewed uptick. Strong migration push factors through much of the Western Hemisphere and beyond may mean that there is continued pressure on the U.S.-Mexico border in the months ahead. In response to the end of a Title 42 order that resulted in more than 2.8 million expulsions at the U.S.-Mexico border, the Biden administration has issued a slew of fresh policies to bolster a border enforcement regime developed in the 1990s—mostly to halt unauthorized economic migrants from Mexico. Today, that regime is tasked with managing an historic level of asylum seekers and other arrivals from an increasing number of countries across the planet. The administration is hoping to funnel migrants in orderly fashion through official ports of entry, yet the government's finite processing capacity means many are receiving only initial screenings and then are being allowing into the United States to appear at immigration proceedings, frequently many years in the future. Meanwhile, migrants who cross without authorization between ports of entry now face new hurdles that in some ways are more consequential than those of Title 42, which prevented access to asylum. To accomplish its goals, the government is racing to scale up its capacity for processing new arrivals by surging resources to the border at the expense of immigration adjudications elsewhere. The new process also depends on cooperation from other countries—particularly Mexico— to accept returned migrants, including those from places such as Cuba and Venezuela where U.S. diplomatic relations are strained. Looming over the changes is the specter of ongoing litigation, which could dramatically upset the new process. And finally, political pressures are likely to put the administration in a delicate position, with significant criticism coming from within President Joe Biden's own party. This article analyzes the new immigration landscape and ramifications nationwide. ... ... As the new reality unfolds, the world is watching. The European Union faces its own challenges with high arrivals and backlogged systems and has at times considered whether migrants might be made to submit asylum applications en route, before they reach its shores. Other countries such as Canada are conducting reviews of their immigration systems, and are looking to the United States for workable policies to replicate. Perhaps mostly importantly, migrants around the world, their family members in the United States, and smuggling networks are also watching to see whether the new policies will make it easier or harder to enter the United States."

Senate Joint Economic Committee, Dec. 14, 2022 "As the United States continues its recovery from the pandemic recession, immigrant workers are essential to the continued growth of the labor force and overall productivity. In order to continue adding jobs at a strong pace, the U.S. economy needs more foreign-born workers to drive innovation and business formation. The United States is currently experiencing a shortfall in the number of immigrant workers. This has exacerbated service disruptions and labor shortages in vital industries that rely on immigrant workers, like leisure and hospitality. However, the impact of this shortfall extends beyond just the industries in which foreign-born workers perform a significant share of the labor. For example, immigrants also help counteract the slowing growth rate of the U.S. population, which helps drive the expansion of the labor force and contributes to overall economic growth. The U.S. labor market benefits from the contributions of immigrant workers. Foreign-born workers are more likely to participate in the labor force than their native-born peers. As a result, immigrants have helped power the U.S. economic recovery by returning quickly to work, despite being disproportionately affected by job losses during the pandemic. The importance of foreign-born workers will only continue to grow over time, as these workers remain vital to sectors that drive economic innovation and competitiveness. For example, jobs in STEM (Science, Technology, Engineering and Math), which rely on the contributions of immigrants, are projected to continue growing faster than other occupations. Similarly, foreign-born workers are vital to the care industry, shouldering a significant share of the work performed by home health care and child care workers. Immigrant workers, a significant share of them women, are also helping to meet the growing demand for caregivers as the overall population ages. The Biden administration has taken steps to overturn the extreme and restrictive immigration policies of the previous administration. Growing the number of immigrant workers through reforms to immigration laws would also strengthen the U.S. economy and create opportunities for all workers and families. Read the full report. "

In this one-hour webinar, four experts explain what will happen next at the border. Essential viewing! Watch the recording here .

In the July 4, 2004 issue of Bender's Immigration Bulletin I published this essay . As we head into the long weekend...and an even longer 2024 election cycle in which immigration will loom large...it might be useful to review how we got here. Here are the opening and closing paragraphs: "If legislation could take out personal ads, the most forlorn entry would read: "CIR Seeks PLS": Comprehensive Immigration Reform seeks Perfect Legislative Storm. ... The next round of (positive) comprehensive immigration reform will require a perfect storm with the following elements: presidential leadership willing to stand up to the restrictionist Right; congressional compromise (as exemplified by AgJobs) demonstrating a preference for action over posturing; and an educated public willing to accept a more rational immigration system as the price for abolishing what is, in effect, a national “plantation” system, with 10 million human beings acting as our less-than-equal servants. Flashing back to 1965, LBJ and the last (positive) perfect legislative storm calls to mind another gem from that year, Bob Dylan’s Subterranean Homesick Blues : “...I’m on the pavement, thinkin’ ‘bout the government.”