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Workers’ Compensation Daily News for January 20th, 2022

  • Swamped San Diego Hospitals Close Doors to New Patients
    on January 19, 2022 at 11:32 AM

    A continuing crush of patients in the South Bay became so severe Tuesday that the San Diego region’s two main medical facilities declared internal disasters, a term used to indicate that conditions have worsened to the point where patient care may be affected.

    According to the report in the San Diego Union Tribune, Chris Van Gorder, chief executive officer of Scripps Health, said that the emergency department at Scripps Mercy Hospital Chula Vista had 73 patients mid-afternoon filling its 24 emergency beds and 23 more inside tents in the parking lot. Twenty more were in beds set up in emergency room hallways with additional spaces taken in areas traditionally used for recovery from surgical procedures or medical imaging.

    He added in an email just after 9 p.m. that Scripps was able "to move some patients" and exit disaster status "for now."

    While such a cascade did not appear to be underway, a second facility - Sharp Chula Vista Medical Center - experienced similar levels of stress Tuesday, declaring the same internal disaster status.

    The largest hospital serving the South Bay, Sharp Chula Vista had 30 of its 48 emergency beds occupied by patients waiting to be admitted to the main hospital, which was already full. As of 7 p.m., 116 of the medical center’s 349 total beds were filled with patients fighting COVID-19.

    Statewide, California continues to struggle with large numbers of its residents testing positive. According to the Los Angeles Times, California recently hit the 7 million case mark, just one week after hitting 6 million, a record pandemic pace.

    When the number of emergency patients exceeds an individual hospital’s resources, facilities traditionally turn to diversion, a system that allows them to significantly reduce ambulance deliveries, providing a few hours for harried staff to catch up.

    But that option was taken off the table last week when the county’s emergency medical services director temporarily suspended self-directed diversion for all hospitals through Jan. 27. The move came as a way of coping with the fact that high patient volume was regularly forcing a large percentage of the region’s hospitals to simultaneously go on bypass.

    Declaring an internal disaster is, in some significant sense, hospitals telling the region’s emergency medical services system that despite a ban on bypass, they can’t handle the volume and are closing their doors to additional ambulance patients.

    Dr. Eric McDonald, the county’s chief medical officer, said Tuesday afternoon that duty officers who run the local emergency medical services system were working to help alleviate the disaster conditions at the two South Bay locations. The situation countywide, he added, did not appear to be as impacted as it was Tuesday in the South Bay.

    Scripps said Tuesday afternoon that it has shifted some patients out of Chula Vista to other hospitals it operates across San Diego County. Transfers as far north at Tri-City Medical Center in Oceanside, Van Gorder said, were occurring. Tri-City confirmed in a short statement Tuesday evening that it recently requested and received "some staffing support to address the challenging environment caused by elevated demand for services and workforce limitations during the current surge."

    Tri-City did not provide the total number of supplemental staff that the state sent to supplement its Oceanside workforce. McDonald said the number was about 50.

  • CWCI Opens Registration for 2022 Annual Meeting
    on January 19, 2022 at 11:32 AM

    The California Workers’ Compensation Institute has announced that registration is open for its 58th Annual Meeting. It is planned as a live event on Tuesday, March 8 from 9:00 a.m. to 3:00 p.m. at the Lesher Center for the Arts in Walnut Creek, California.

    For those who are unable to attend the live event, there will be an "Encore" broadcast with live Q&A on Thursday, March 10th at 9:00 a.m.

    The theme of this year’s meeting will be "Are We There Yet?" an acknowledgement and analysis of our industry’s dual state of mind after almost two years of working through the worldwide pandemic and the anticipation of returning to "normal." CWCI staff and guest speakers will examine both the current environment as well as the issues, challenges, and opportunities facing the California workers’ compensation community as we move toward and into the post-pandemic environment.

    The meeting will include the following:

    - - Dr. Mark Schniepp, Director of the California Economic Forecast, will examine the impact that COVID-19 continues to have on the California and the U.S. economies, the "great resignation," and the economic outlook for the year ahead.
    - - CWCI’s Rena David and Alex Swedlow will present a 3-part Research Update on COVID-19’s continuing impact on California workers’ compensation, changes in medical-legal utilization and reimbursement under the new medical-legal fee schedule, and injured worker access to medical care.
    - - Industry advocates Jason Schmelzer and Jeremy Merz will discuss the 2022 legislative and regulatory environment.
    - - Veteran defense attorney Michael Marks will wrap up the meeting, revisiting the theme of "Are We There Yet?" by reviewing how our current system operates, examining how well it fulfills the original workers’ compensation grand bargain, and providing his insights on what is left to accomplish and whether or not we can ever "get there."

    CWCI’s 58th Annual Meeting is free to CWCI member company employees, regulators, and the press; $325 for all others.

    The live meeting will begin with a Continental breakfast at 8:00 a.m., and will also include a luncheon from noon to 1:00 p.m. All those planning to attend the March 8 live event or the March 10 Encore broadcast must preregister. To register and get information on the Lesher Center, the meeting agenda, and hotel options, go to conferences.html. If you have questions, please call CWCI at 510-251-9470 or email

    CWCI and the Lesher Center will abide by all COVID-19 public health directives from Contra Costa County’s Health Director. Currently those directives include masking requirements and proof of full vaccination, with medical and religious exemptions allowed if specified criteria detailed on the Lesher Center Website are met. Please note that these criteria are subject to change so please check the website before attending the live event.

  • COVID Comp Claims Increased 172% in December
    on January 18, 2022 at 9:21 AM

    The CWCI reports that California workers’ compensation COVID-19 claim volume continues to track with the state’s fluctuating COVID infection trends. The latest monthly count of COVID workers’ comp claims jumped 172% in December to the second highest level of the year, as the Omicron variant spread rapidly across the state

    CWCI’s latest projection also shows that the December total could ultimately increase to 12,438 cases once claims that are yet to be filed or still under investigation are added to the count.

    The January 10 update to CWCI’s COVID-19/non-COVID-19 Interactive Claim Application, shows that since the pandemic was declared in March 2020, there have been 181,770 COVID claims reported to the DWC.

    The monthly COVID claim count fell to a 5-month low in November, then reversed course in December as the Omicron variant led to a wave of coronavirus cases throughout the state.

    Although additional claims with November and December injury dates are still being reported, the current count of 8,292 COVID claims for December represents a one-month increase of 172% and is already above the peak level reached in August during last summer’s Delta surge.

    The spike in claim volume at the end of the year pushed the total number of COVID claims reported to the DWC for 2021 to 63,034, which translates to 10.0% of all 2021 work injury and illness claims reported to the state. That was significantly better than the 118,995 COVID claims reported for 2020, prior to the availability of COVID vaccines, when COVID cases accounted for 17.9% of all California workers’ compensation claims reported to the state.

    With the Omicron surge at the end of 2021, however, COVID claims as a percent of all California workers’ compensation claims more than tripled from 6.6% in November to 20.5% in December ­- the highest percentage since January 2021.

    The latest report also notes a total of 1,284 COVID death claims since the pandemic began, with 955 of those having 2020 injury dates and 329 having 2021 injury dates, so COVID death claims accounted for well over half (54.5%) of the 1,752 work-related death claims reported to the DWC for 2020 and 39.4% of the 836 death claims reported thus far for 2021.

    The new data also show that while COVID claims were most prevalent among health care workers in the first year of the pandemic, accounting for nearly a third (32.5%) of 2020 COVID claims, with the introduction of vaccines and increased safety procedures that percentage dropped to 22.5% in 2021.

    Meanwhile, public safety/government workers’ share of the COVID claims jumped from 16.7% in 2020 to 24.7% in 2021, as their share grew steadily as the year progressed, climbing from 20.7% of the COVID claims in the first quarter to 30.8% of the COVID claims in the fourth quarter. As a result, the public safety/government sector surpassed the health care to become the #1 sector for California workers’ compensation COVID claims in 2021.

  • Retired San Jose Cop to Serve 3 Years for $1.1M Premium Fraud
    on January 18, 2022 at 9:21 AM

    A retired San Jose Police officer with a side security business was convicted of $1.13 million in insurance fraud, $18 million in money laundering to cover it up, tax evasion, and worker exploitation. The former officer owned the business without the knowledge of the SJPD.

    Robert Foster, 48, of Morgan Hill, pleaded no contest to a series of felony fraud charges and will be sentenced to three years in county jail and two years of mandatory supervision. Foster will repay $1.13 million to Everest National Insurance and the Employment Development Department. There will also be a general order of restitution.

    Foster owns Atlas Private Security (now Genesis Private Security) with his wife, Mikaila Foster, 46, who also pleaded no contest to a variety of related fraud charges. She will be sentenced to one year in county jail and five years of probation. Robert Foster will be sentenced on February 25th at 1:30 p.m. in department 26 in the Hall of Justice in San Jose. Mikaila Foster will also be sentenced in department 26 on April 29th at 1:30 p.m.

    The six-month investigation was spearheaded by the Santa Clara County District Attorney’s Office Bureau of Investigation in close collaboration with the California Department of Insurance, Employment Development Department, Department of Justice, and the Department of Labor.

    The Fosters illegally reduced their insurance premiums and taxes by reporting false and inaccurate payroll, underreporting headcount, paying employees off-the-books, and underreporting employee injuries. The Fosters failed to pay employees overtime and dissuaded those employees from accurately reporting on-the-job injuries and wage-theft violations.

    In one instance, an "off-the-books" security guard suffered severe injuries during a crash while driving an Atlas security vehicle. Robert Foster responded to the guard’s $1 million medical bill by telling the insurance company that the guard was not an Atlas employee. Investigators found records showing that the guard was driving an Atlas vehicle and wearing an Atlas uniform at the time of the collision.

    The probe also uncovered that the Fosters allegedly hid millions of dollars of payroll through a complex subcontractor masking scheme. Employees were paid by a different security company, which had no knowledge of the employees’ hours, wages, or schedules. Instead, the other company simply moved money from the Fosters’ firm to the employees so that the Fosters could avoid paying their fair share of taxes, workers’ compensation insurance, and overtime wages.

  • SCOTUS Rules Against OSHA Vaccine Mandate
    on January 14, 2022 at 8:58 AM

    Federal OSHA recently enacted a vaccine mandate for much of the Nation’s work force. The mandate, which employers must enforce, applies to roughly 84 million workers, covering virtually all employers with at least 100 employees. Many States, businesses, and nonprofit organizations challenged OSHA’s rule in Courts of Appeals across the country. The litigation efforts to stop the mandate ultimately ended up in the US Supreme court which heard oral arguments on the issues, and published a ruling in the case of National Federation of Independent Businesses v OSHA.

    The 6-3 majority of Justices ruled against the OSHA imposed vaccine mandate finding that "Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate. Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense. This is no 'everyday exercise of federal power.' "

    The dissenting opinion said that OSHA’s mandate is comparable to a fire or sanitation regulation imposed by the agency. But the majority responded that "a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed. A vaccination, after all, 'cannot be undone at the end of the workday.' "

    "We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance."  And the opinion added that "Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly," Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category."

    President Biden responded to the ruling by saying "I am disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law," And he concluded by saying that "The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy,"

    However in the companion case of Biden v Missouri, the 5-4 majority approved the HHS/CMS omnibus rule mandating that medical facilities nationwide order their employees, volunteers, contractors, and other workers to receive a COVID-19 vaccine.

    The majority reasoned that "COVID-19 is a highly contagious,dangerous, and - especially for Medicare and Medicaid patients - deadly disease. The Secretary of Health and Human Services determined that a COVID-19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients."

    They concluded that the HHS/CMS rule "thus fits neatly within the language of the statute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm."

  • EDD Suspends 345,000 Suspected Fraudulent SDI Claims
    on January 14, 2022 at 8:58 AM

    The Employment Development Department just announced that it suspended account activity for approximately 27,000 suspicious medical provider registrants and 345,000 claims associated with those providers or other suspicious activity.

    While the majority of these providers and claims were likely fraud attempts, the Department has partnered with state regulators and medical provider organizations to coordinate the verification process to clear any legitimate claims as quickly as possible. This is EDD’s top priority. That includes working to contact all claimants who have had their claim held up in this identity theft scam.

    Purported medical providers must complete further identity verification with to potentially certify any disability claims. These personalized requests for medical provider verification through only come from an official EDD email address ending in

    Medical providers who receive emails with information about how to verify identity through should carefully confirm the sender’s email address.

    Scammers attempt to impersonate government agencies in an attempt to trick people into clicking fake links. Such scam efforts are unfortunately common and slow verification and payment for legitimate claimants and providers.

    Californians should safeguard financial and personal information online and elsewhere and remain vigilant to guard against identity theft.

    Those who receive communications from EDD regarding a medical provider online account being created in the DI system, or an application for public benefits (such as disability or unemployment insurance) and believe someone filed the claim falsely, should file a fraud report by visiting Ask EDD and selecting the Report Fraud category to complete the Fraud Reporting Form.

    Identity theft victims may also want to file an identity theft report with the Federal Trade Commission (FTC). EDD continues to enhance and update information on the Help Fight Fraud webpage.

    EDD took action in recent weeks to clamp down on a new disability insurance (DI) identity theft scam involving suspected organized criminal elements filing false DI claims using stolen credentials of individuals and medical or health providers. Disability insurance claimants have continued to receive payments if they were not associated with the recent scam attempts.

  • Court Affirms Cal/OSHA Citation for Freeway Construction Injury
    on January 13, 2022 at 10:12 AM

    In June 2014, while Atkinson Construction LP’s employees were erecting "falsework" near the I-405/I-605 interchange in Seal Beach for a new freeway bridge, an accident occurred, which seriously injured one of it’s employees.

    Specifically, a forklift attempting to position a long steel beam atop two vertical falsework structures, known as "bents," accidentally hit another beam, causing that beam and another to overturn and fall off the bents. Each of the steel beams weighed approximately 60,000 pounds.

    As the beams collapsed Ramon Torres, an employee standing on one of the bents fell nearly 30 feet to the ground. Torres suffered serious physical injuries from the fall.

    After an investigation, the Division cited Atkinson for violating a construction safety order - section 1709, subdivision (b)(1) - that requires beams to be "braced laterally and progressively" to prevent overturning.

    Atkinson appealed the citation, but the Occupational Safety and Health Appeals Board denied the appeal. It then filed a petition for a writ of administrative mandate in the superior court which also was denied.

    Atkinson appealed the denial of its writ petition, arguing that (1) the cited safety order does not apply because another, more specific, safety order governs falsework operations; and that (2) it complied with the more specific safety order. The Court of Appeal was not persuaded by these arguments, and affirmed the citation in the unpublished case of Atkinson Construction LP v. DIR Division of Occupational Safety and Health.

    Atkinson requested the court of appeal to review the regulatory history of section 1709, subdivision (b)(1). However the court found no basis for doing so. The language clearly states that "[t]russes and beams shall be braced laterally and progressively during construction to prevent buckling or overturning." (§ 1709, subd. (b)(1).) There is no ambiguity in the text to justify an inquiry into its regulatory history.

    Despite the safety order’s plain language, Atkinson argues that section 1709 does not apply to falsework operations. It contends that falsework is a "separate and distinct" type of construction, with its own specific safety order (section 1717), and therefore the absence of any reference to falsework in section 1709 necessarily implies that it applies only to nonfalsework construction.

    Prior Board decisions establish that more than one safety order may apply to a particular set of facts, even when the construction involves falsework. Here, section 1709 is part of the specific industry safety orders promulgated for the construction industry. Such construction safety orders establish minimum safety standards that apply to any employment "in connection with the construction, alteration, painting, repairing, construction maintenance, renovation, removal, or wrecking of any fixed structure or its parts."

    Thus, Atkinson’s falsework operations were covered by the construction safety orders, including section 1709.

  • Omicron Surge Forces Closure of Northern California Courts
    on January 13, 2022 at 10:11 AM

    The Santa Clara County Superior Court announced Wednesday that it is closing public counters and restricting courthouse entry through the end of the month because of staffing absences driven by the rapidly spreading omicron variant of COVID-19, joining other Bay Area courts that have also been limiting public access.

    The decision to decrease the public’s access to South Bay court facilities is effective through Jan. 31, by which point officials plan to reevaluate whether to rescind or modify the restrictions.

    This marks at least the third large-scale order in Santa Clara County to restrict court availability. Courthouses across the state were largely shuttered in the first few months of the pandemic and began widely installing teleconference and videoconference lines to maintain some level of court access.

    Mercury News reports that the order echoes past restriction orders, limiting courthouse access to people directly involved in a court hearing; those submitting an in-person pleading; family-court petitioners seeking protective orders regarding domestic violence, gun violence, civil harassment, workplace and school violence, elder abuse, and juvenile dependency; and those seeking emergency orders for eviction and child-safety matters.

    "Our court is experiencing a significant number of employee absences, creating staffing shortages across all departments of the court,"  Presiding Judge Theodore Zayner said in a statement. "We are hopeful that these circumstances are transitory and will frequently reexamine conditions as we continue to serve the public through the pandemic and the current omicron variant surge."

    In San Mateo County, court officials have shifted many non-criminal hearings from in-person to Zoom, and have consolidated preliminary hearings to court facilities in Redwood City. Both San Mateo and Contra Costa counties have obtained emergency authorization from the state’s Judicial Council - which governs Superior Court operations in California - to postpone jury selection panels and trials that were set to start in January by as many as 30 days.

    In Alameda County, the court has temporarily decreased telephone and in-person access to clerk’s offices to "allow the court to mitigate the ongoing surge in COVID cases brought about as a result of the rapid spread of the Omicron variant," according to a court statement. The court will continue to monitor the situation and make additional changes as circumstances warrant.

    The Alameda County court has also obtained authorization to postpone jury trials set to start in January and also to treat most of January as a holiday when it comes to many court filing deadlines. But it has also revived an emergency order, which was highly criticized as a due process violation when it was implemented in the first few months of the pandemic, to extend the allowable arraignment deadline for someone arrested and in jail custody from 48 hours to as many as seven days.

  • UC San Diego Health Resolves Medicare Billing Suit for $3 M
    on January 12, 2022 at 10:26 AM

    UC San Diego Health, the academic health system of the University of California, San Diego, has paid $2.98 million to resolve allegations that it violated the False Claims Act by ordering medically unnecessary genetic testing reimbursed by Medicare, the Justice Department announced today.

    The settlement resolves allegations that, from December 2015 to October 2019, UC San Diego Health ordered and submitted referrals for medically unnecessary genetic testing performed by CQuentia Arkansas Labs, CQuentia NGS, and Total Diagnostic II . The government alleged that this conduct led to the submission of false claims for payment to Medicare for unnecessary genetic testing.

    UC San Diego Health did not admit any liability as part of the settlement, which allowed the provider to continue to focus on patient care, said UC San Diego Health spokesperson Jacqueline Carr.

    "Working at the forefront of patient care sometimes involves the use of new technologies from emerging companies. When UC San Diego Health learned that the Department of Justice had concerns about one of our technology providers, we fully cooperated and promptly resolved the matter," Carr said in a statement. "The DOJ’s settlement announcement alleges that our doctors ordered tests from a company that then allegedly made false claims about those orders."

    "UC San Diego Health remains committed to integrating the leading best practices and technology into our research, teaching and patient care missions, in accordance with the highest standards of ethical conduct and all applicable laws and regulations," Carr added.

    Tennessee-based C Quentia has since apparently gone out of it's Website simply states "C Quentia has been closed" and tells previous customers how to obtain medical records.

  • COVID Outbreak Returns WCAB to Telephonic Hearings
    on January 12, 2022 at 10:26 AM

    The Division of Workers’ Compensation announced that as of January 12, 2022, all hearings will be heard virtually.

    Until further notice, DWC will telephonically hear all trials, lien trials, expedited hearings, and special adjudication unit (SAU) trials.

    In addition, mandatory settlement conferences, priority conferences, status conferences, SAU conferences, and lien conferences will continue to be held on the individually assigned judges’ conference lines as announced in Newslines issued on April 3, April 28, May 28, August 12, September 9, 2020, and Sept. 1, 2021.

    The division acknowledges that due to the recent surge in COVID-19 cases, a pause of in-person hearings is necessary at this time.

    The pause will continue through the end of the month and will be reevaluated at that time.

    DWC hearing notices will not change but parties should be aware that as of January 12, 2022, if a trial, expedited hearing, lien trial or SAU trial is set at a district office, all parties should call the judges’ assigned conference line and not appear in person.

    The judges’ assigned conference lines may be found on the DWC webpage. All division offices will remain open during this time.

    If a party to a DWC hearing has a question on a specific case, they may contact the DWC call center at (909) 383-4522.

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