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Workers’ Compensation Daily News for October 23rd, 2021

  • 148 Elder-Care Workers Prevail in $8.3M Wage Theft Case
    on October 22, 2021 at 9:26 AM

    Nearly 150 former workers of an elder-care business in West Hills will be paid more than $8.3 million in a wage theft investigation that found employees were subjected to "oppressive" conditions and paid as little as $2.40 hourly, according to the state Labor Commissioner’s Office.

    The Oct. 1 judgment will compensate 148 employees who worked at six Adat Shalom Board & Care locations. It upholds wage-theft citations issued to the business and owner Angelica Reingold in 2018.

    The facilities, which have since been re-branded as Land of Peace, are all in West Hills with various addresses on Kittridge Street and Sale Avenue.

    Pilipino Workers Center, a nonprofit that helps Filipino workers and their families, referred the case to the California Commissioner’s Office and assisted in identifying employees during the investigation.

    The Labor Commissioner’s Office opened its investigation in June 2017 after receiving a report of labor law violations. The investigation uncovered that from July 2014 to July 2017, the caregivers at the six facilities in West Hills were:

    - - Paid less than the minimum wage for each hour they worked.
    - - Not paid overtime for working 24-hour shifts, six days a week.
    - - Not relieved from their duties to take meal or rest breaks.
    - - Provided pay stubs that withheld key information such as hourly rate of pay and total number of hours worked.

    The live-in caregivers were responsible for monitoring and caring for elderly residents and hospice patients, many of them suffering from Alzheimer’s or dementia. The caregivers were paid fixed amounts ranging from $1,500 to $1,800 per month, or $2.40 to $2.88 per hour.

    Aquilina Soriano Versoza, the center’s executive director, said employees at the care facilities could sleep at certain times but were still on call 24 hours a day. "They listened to monitors and had to leave their doors open so they’d be ready to respond," she said. "They had to ask permission to leave if they needed to run to the store."

    Residential care workers, leaders from Pilipino Workers Center and other supporters held a press conference Wednesday to announce the Labor Commissioner’s decision. The judgment includes:

    - - $1,623,384 for minimum wages owed
    - - $1,939,112 for unpaid overtime
    - - $2,540,675 in liquidated damages
    - - $152,441 for meal period wages owed
    - - $2,100,405 in prejudgment interest

    Founded in 1997, Pilipino Workers Center (PWC) is a non-profit 501(c)3 that organizes the low-wage Pilipinx community in Southern California to demand better living and working conditions. PWC provides support for human trafficking survivors, immigration services, affordable housing, workforce training, education on workers’ rights, wage theft enforcement, free tax preparation, and a cooperative for homecare workers.

  • Another Former NFL Player Pleads Guilty to EDD Fraud
    on October 22, 2021 at 9:26 AM

    Former NFL wide receiver Kenbrell Thompkins pleaded guilty in a scheme to fraudulently obtain COVID-19 unemployment insurance benefits from the state of California.

    According to court records obtained by the Associated Press, Thompkins entered guilty pleas on one count of unauthorized access device fraud and one count of aggravated identity theft in a federal court in Miami on Monday.

    According to the plea agreement, Thompkins used stolen identities of Florida residents to apply for COVID-19 unemployment benefits from California.

    The state approved the applications and sent $300,000 in benefits in the form of debit cards to South Florida addresses Thompkins set up Around $230,000 of those funds were withdrawn from ATMs across South Florida.

    The benefits were part of the Covid Aid, Relief and Economic Security Act passed by the U.S. Congress. The bill's intent was to help people and businesses during the financial downturn caused by the COVID-19 pandemic.

    33 year old Thompkins played three seasons in the NFL from 2013-15 with the New York Jets, New England Patriots and Oakland Raiders. According to Spotrac, he earned $1.4 million as an NFL player.

    He's scheduled to be sentenced on Jan. 6 and faces a maximum of 12 years in prison.

    Thompkins is the latest former professional athlete named in a fraud scheme in recent weeks.

    In September, ex-NFL players Clinton Portis, Tamarick Vanover and Robert McCune reportedly pleaded guilty to defrauding a league healthcare plan.

    On Oct. 7, 18 ex-NBA players including Terrence Williams and Glen "Big Baby" Davis were charged in an alleged $4 million scheme to defraud the NBA player's health and welfare benefit plan.

  • Jury Awards Pharmacist $27M in Walmart Wage Theft Case
    on October 21, 2021 at 11:16 AM

    The District Court of Central California on Wednesday awarded a former Walmart pharmacist with $27 million in total damages, agreeing that the retail giant routinely denied her work breaks and overtime pay.

    According to the report on CourtHouse News, the case was originally filed by former Walmart pharmacist Afrouz Nikmanesh in Orange County Superior Court in 2015, but was later moved to the District Court of Central California.

    Nikmanesh said Walmart told her to obtain her immunization certification, which would allow her to provide on-site immunizations to pharmacy patients, but refused to compensate her for the time she spent studying and preparing for the exam. She also claimed that getting the certification increased her workload several times over, but said Walmart refused to provide additional staffing to meet the increased demand.

    The ruling includes $40,000 for economic losses; $100,000 for non-economic losses; $60,000 for future non-economic losses; and $27.3 million in punitive damages.

    In the original complaint, Nikmanesh claimed she was denied overtime wages along with meal and rest breaks, forced to perform work off the clock studying for and taking the immunization certification exam and given inaccurate wage statements that didn’t account for the hours she actually spent working.

    She said Walmart enacted a policy prohibiting its pharmacists from leaving the pharmacy unattended, adding that this made it impossible for her to take her legally mandated meal and rest breaks. Because of a shortage of pharmacists who could cover for her, she said she was effectively forced to work throughout their shifts without pause.

    Walmart also committed numerous pharmacy violations and instances of noncompliance with state law, according to the plaintiff, including charging Medicare beneficiaries above the Medi-Cal reimbursement rate for prescriptions and failing to provide eligible patients with a Medicare discount.

    She also said Walmart failed to report necessary data to the Controlled Substance Utilization Review and Evaluation System, otherwise known as the CURES program, a database of controlled substance prescriptions dispensed throughout California which requires pharmacists to file weekly reports with the California Department of Justice.

    Nikmanesh reported these violations to her supervisors sometime between July 2013 and September 2014 and asked that they investigate and correct the various compliance issues. Walmart responded by firing Nikmanesh in September 2014, which she claims was solely in retaliation for her complaining about their non-compliance with state laws.

    The company also failed to reimburse Nikmanesh for business expenses, didn’t give her a bonus that she earned, refused her request to host a health fair promoting the pharmacy, unfairly denied her promotions and gave her a poor performance review shortly after she complained about their illegal practices, according to the lawsuit.

    "The Jury of 8 unanimously found that Ms. Nikmanesh’s reporting of Walmart’s overcharging Medicare customers over the age of 65 and persons under the age of 65 with disabilities for their medications and not properly reporting the dispensement of controlled substances to the Department of Justice under the Controlled Substance Utilization Review and Evaluation System program was a substantial motivating reason for Walmart’s decision to retaliate against and discharge her," explained Dayton B. Parcells III, lead attorney for the plaintiff.

    Representatives for Walmart were not immediately available for comment.

  • OSHA Suspends Adverse COVID Vaccination Effects Reporting
    on October 21, 2021 at 11:16 AM

    The purpose of the OSHA Federal Regulation located at 29 CFR 1904 is to require employers to record and report work-related fatalities, injuries, and illnesses.

    Section 1904.5(a) states "Basic requirement. You must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in §1904.5(b)(2) specifically applies."

    Section 1904.5(b)(1) says What is the "work environment"? OSHA defines the work environment as "the establishment and other locations where one or more employees are working or are present as a condition of their employment. The work environment includes not only physical locations, but also the equipment or materials used by the employee during the course of his or her work."

    So are adverse reactions to an employer's mandated COVID-19 vaccine recordable on the OSHA recordkeeping log? Looking further in the regulation are the exceptions. One of them might apply.

    1904.5(b)(2) You are not required to record injuries and illnesses if . . . 1904.5(b)(2)(iii)The injury or illness results solely from voluntary participation in a wellness program or in a medical, fitness, or recreational activity such as blood donation, physical examination, flu shot, exercise class, racquetball, or baseball.

    However this exception does not seem to apply since a "mandated" COVID vaccination is not "voluntary," one of the conditions of the above exception.

    It still might raise an employer's concern, had not this exact question been answered by the OSHA Coronavirus FAQ on this regulation, which reads:

    "DOL and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination, and also does not wish to disincentivize employers' vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904's recording requirements to require any employers to record worker side effects from COVID-19 vaccination at least through May 2022. We will reevaluate the agency’s position at that time to determine the best course of action moving forward."

    By using the word "any" in the FAQ, the temporary excuse until at least May 2022 it would seem to imply to both voluntary or mandatory COVID-19 vaccination adverse reactions, although the wording of this FAQ could have been more clearly written.

    Nonetheless, this sua sponte OSHA decision to forgive a component of regulatory oversight is puzzling and questionable. The stated purpose of OSHA is to regulate workplace safety. President Biden has announced his intent to mandate COVID-19 vaccinations. Yet his agency in charge of monitoring safety does not want to know about any adverse effect of the vaccination. Thus if it ends up in the long run to be unsafe, the documentary trail would then be obscured, in what should be a transparent governmental agency.

    Employees across the nation are voicing their concerns about the safety of the COVID-19 vaccination. This clause in the FAQ will no doubt trigger their suspicions, rather than calm them down.

  • SCOTUS Declines to Hear Maine Vaccination Mandate Case
    on October 20, 2021 at 11:03 AM

    Courthouse News reports that the U.S. Supreme Court declined an emergency application to stop the enforcement of a Covid-19 vaccine mandate for health care workers in Maine.

    Maine Governor Janet Mills, a Democrat, instituted the mandate in late September requiring health care workers to be fully vaccinated by Oct. 29, or risk losing their jobs. Several health care workers challenged the mandate, citing in their complaint beliefs that prevent them from receiving a Covid-19 vaccine because of "the vaccines' connections to aborted fetal cell lines," among other religious reasons.

    After a federal district court judge denied the health care workers injunctive relief last week, they quickly filed their emergency application with the U.S. Supreme Court.

    But Justice Stephen Breyer denied the application without prejudice Tuesday afternoon.

    The Supreme Court has previously used the emergency docket - sometimes called the shadow docket - to reject vaccine mandates challenges from public school teachers in New York and students and employees from Indiana University, but this case marks the first time the court addressed a statewide Covid-19 vaccine mandate.

    "We are pleased that the Supreme Court is ready to consider this case if we do not get relief at the First Circuit Court of Appeals or if the lower court does not rule by October 29," Mathew Staver, attorney for the plaintiffs and Liberty Counsel founder and chairman, said in a statement. "As of Monday, our case is now fully briefed at the court of appeals. We look forward to an expedited ruling. There is no question that Gov. Janet Mills cannot nullify federal law and the First Amendment to the U.S. Constitution."

    Staver and the plaintiffs did not have to wait long for the First Circuit to weigh in. Shortly after the Supreme Court's denial, a three-judge panel of the First Circuit also ruled against the plaintiffs, rejecting their request for a preliminary injunction.

    "While we do not diminish the appellants' liberty of conscience, we cannot find, absent any constitutional or statutory violation, any error in the district court's conclusion that the rule promotes strong public interests and that an injunction would not serve the public interest," U.S. Circuit Judge Sandra Lynch, a Bill Clinton appointee, wrote in the 35-page opinion.

    Now, the case is likely headed straight back to the Supreme Court.

    According to Maine’s vaccination data, over 85% of all health care workers across the state’s facilities were vaccinated as of September.

  • WCRI Publishes New Report on Medical Payment Trends
    on October 20, 2021 at 11:03 AM

    A new set of studies released by the Workers Compensation Research Institute (WCRI) examines the factors behind trends in medical payments per claim in state workers’ compensation systems and the impact of legislative and regulatory changes on those costs.

    The studies, CompScope Medical Benchmarks, 22nd Edition, examine trends in payments, prices, and utilization of medical care for workers with injuries. They provide analyses of recent cost drivers and trends for policymakers and other system stakeholders, reporting how medical payments per claim and cost components vary over time and from state to state.

    "The reports are useful to identify where medical cost and care patterns may be changing and help identify where medical payments per claim or utilization may differ from other states," said Ramona Tanabe, executive vice president and counsel for WCRI. "While the full impact of COVID-19 on state workers’ compensation systems is currently unclear, these studies will be a useful baseline to monitor the effects."

    This study examines medical payments, prices, and utilization for various types of services by nonhospital and hospital providers in California and compares them with 17 other states. It also examines how these metrics of medical payments and care have changed, mainly from 2014 to 2019.

    Claims with experience through 2020 for injuries up to and including 2019 were analyzed. In some cases, a longer period was used to supply historical context for key metrics. Information from other WCRI studies was also included to provide a more complete picture of the system in California.

    California implemented multiple policy changes in recent years. The drug formulary required by Assembly Bill (AB) 1124 became effective in January 2018, and data in this report reflect up to 27 months of experience following the implementation of that policy initiative. AB 1124 and Senate Bill (SB) 1160, two major fraud-fighting measures, were enacted in January 2017. The data in this study reflect up to 39 months of experience after the passage of these bills.
    SB 863, a comprehensive reform legislation, went into effect in January 2013. Results in this report reflect the state’s system performance seven years after the implementation of SB 863.

    In addition, during the analysis period of this study, California went through multiple medical fee schedule updates for hospital outpatient department and ambulatory surgery center services, and nonhospital professional services. These regulatory changes are also potential factors influencing the results discussed in this report.

    The results in the report include experience on claims through March 2020, at the very beginning of the coronavirus (COVID-19) pandemic. The study, therefore, provides a pre-COVID-19 baseline for evaluating the impact of the virus on workers’ compensation claims.

    The studies cover the period from 2014 through 2019, with claims experience through March 2020. The 18 states in the study ― Arkansas, California, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, Pennsylvania, Tennessee, Texas, Virginia, and Wisconsin ― represent more than 60 percent of the nation’s workers’ compensation benefit payments. Individual reports are available for every state except Arkansas, Iowa, and Tennessee.

    For more information on these studies, visit www.wcrinet.org.

  • WCAB Reverses AOE-COE Finding for LAPD Basketball Injury
    on October 19, 2021 at 10:50 AM

    Erika Spence filed an application for adjudication of claim alleging that on July 30, 2017 she sustained industrial injury to her right foot while playing in a basketball tournament with other women from the Los Angeles Police Department called the Menehune Basketball Invitational Tournament held at a facility in the City of La Puente, California and hosted by a private organization.

    At the trial on the sole issue of AOE-COE, Spence testified that no one encouraged or pressured her to play on the women's basketball team. There would not be any negative consequences if she did not join the team, nor would there be any promotions or benefits if she did join. Her participation on the team was voluntary. Participating in tournaments was also voluntary.

    Defendant presented the testimony of Sergeant Edward Acosta along with an excerpt of the 2017 LAPD Manual Vol. 3, in which Sergeant Acosta testified that, while basketball is on a list of approved activities, the tournament in which applicant was injured did not meet the requirements outlined in the LAPD Manual.

    Based on this evidence, the WCJ issued the F&O finding that the applicant’s injury occurred AOE/COE. The LAPD petition for reconsideration was granted, and the WCAB panel found that she did not sustain injury AOE-COE to her right foot in the case of Spence v City of Los Angeles, ADJ 10987859 (10/6/2021)

    Labor Code section 3600(a)(9) bars compensation for an injury Where the injury does not arise out of voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee’s work-related duties, except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment.

    Pursuant to Ezzy v. Workers’ Comp. Appeals Bd. (1983) 146 Cal.App.3d 252, 260 [48 Cal.Comp.Cases 611].) evaluation of whether an injury is barred under section 3600(a)(9) requires a two-prong test: (1) whether the employee subjectively believes his or her participation in an activity is expected by the employer, and (2) whether that belief is objectively reasonable.

    In this case, based on applicant’s testimony, the first prong of Ezzy was not met. That is, applicant did not establish that she subjectively believed that participation in the Menehune Basketball Invitational Tournament was required.

    Additionally, the panel noted that note that departments have the ability to limit the scope of potential liability by designating and/or pre-approving athletic activities or fitness regimens (Young v. Workers' Comp. Appeals Bd. (2014) 227 Cal.App.4th 472, 482; citing, Taylor v. Workers' Comp. Appeals Bd. (1988) 199 Cal.App.3d 211.) (Taylor).)

    In this case, the LAPD Manual specifically outlined the conditions under which injury resulting from athletic activity will be considered on duty.

  • Construction Company Cited for $1.7M Wage Theft
    on October 19, 2021 at 10:50 AM

    The Labor Commissioner’s Office has cited JPI Construction $1.7 million for wage theft violations affecting 265 workers. An investigation found that the San Diego-based company failed to pay workers properly on commercial and residential construction projects, resulting in minimum wage and overtime violations.

    The Labor Commissioner’s Office opened an investigation in March 2019 after receiving a report of labor law violations indicating JPI Construction workers were experiencing wage theft because they were only paid for 40 hours a week despite consistently working overtime on mixed-use construction projects in the San Diego and Los Angeles areas. The labor law violations were reported by Carpenters/Contractors Cooperation Committee, a non-profit labor-management organization.

    The investigation found that from April 2018 to March 2019, employees doing framing and sheetrock work were paid a flat rate that did not include overtime. This resulted in frequent minimum wage and overtime violations. Investigators interviewed workers and audited the employer’s payroll records to identify violations. The audit uncovered illegally modified timesheets that removed record of the overtime hours the workers should have been paid.

    When workers are paid less than minimum wage, they are entitled to liquidated damages that equal the amount of underpaid minimum wages plus interest. Waiting time penalties are imposed when the employer intentionally fails to pay all wages due to the employee at the time of separation. This penalty is calculated by taking the employee’s daily rate of pay and multiplying it by the number of days the employee was not paid, up to a maximum of 30 days.

    The citations total $1,771,133, with $1,610,527 payable to the workers. The amount owed to workers includes minimum wage and overtime, waiting time penalties for failure to provide full pay on time, and liquidated damages and interest payable to workers for failure to pay minimum wage for all hours worked. The citations include $143,200 in civil penalties payable to the state.

    The owners have appealed the citations. Under the appeal procedure, the Labor Commissioner’s Office will hold a hearing before a hearing officer who will affirm, modify or dismiss the citations.

    The Labor Commissioner’s Office in 2020 launched an interdisciplinary outreach campaign, "Reaching Every Californian." The campaign amplifies basic protections and builds pathways to affected populations so workers and employers understand legal protections and obligations, and the Labor Commissioner’s enforcement procedures.

  • AB-5 May Soon Add to National Supply Chain Problems
    on October 18, 2021 at 11:26 AM

    Supply chain issues in the United States and particularly the role ports in Los Angeles and Long Beach play, have become a hot topic in the news cycle.

    Dwell time for containers at terminals is six days, the wait time for on-dock rail is nearly 12 days and it takes 8.5 days on average for containers on the street to find dock space at warehouses. The situation is so bad that a few weeks ago about 65 container vessels were stacked up along the coast waiting to berth and unload.

    In addition to the nationwide labor shortage, ports in California face state-specific challenges.

    Last week President Biden announced that the Port of Los Angeles will join the Port of Long Beach in operating 24/7 in an attempt to clear the shipyards of cargo containers and allow the dozens of ships anchored offshore to offload their cargo. That should do the trick, right? Only for people who don’t understand how a supply chain works.

    According to the California Trucking Association (CTA), there are more than 70,000 predominantly minority-owned independent truckers operating in California. About 17,000 truckers are registered to bring goods into the Los Angeles and Long Beach ports. Many of those are contractors who own or lease their trucks and don’t receive workers’ compensation or other benefits enjoyed by full-time employees.

    Many of these independent contractors are hired by large, well known trucking companies, many of them contract with multiple trucking companies, both large and small. Many of the independent contractors are small businesses themselves and utilize employees and contractors. This business model has existed at California ports for many decades.

    However, AB5, enacted in 2019, changes the rules for the California trucking industry model of doing business. It sets as law the ABC test for determining whether a worker is an employee or a true independent contractor. And for trucking, the B prong is viewed as making it difficult to hire independent owner-operators as drivers, because it defines a person engaged in the primary activity of the hiring company - like a trucking company hiring a truck driver - as an employee.

    There were two AB5/trucking-related cases on the U.S. Supreme Court docket for this term; on October 5 the Court denied certiorari in the Cal Cartage case, but hasn’t yet ruled on another case brought by the California Trucking Association (CTA).

    In that case, a federal judge issued an injunction in January 2020 blocking the implementation of the law in the trucking industry until legal challenges could wind their way through the courts. In April the 9th Circuit Court of Appeals ruled against CTA, but enforcement of that order has been stayed pending SCOTUS’ decision, which means the January 2020 injunction is still in effect.

    According to an article by Compliance Navigation Specialists, carriers that have been taking the "wait and see" approach on the law and the court’s process are now facing a near-term reality that the independent contractor system might not be possible and will have to face an increase in costs to hire the drivers.Other carriers have been cutting ties with California as the cost of doing business in the state are greater than the reward and pull out of any California operations to shield themselves from the impact of the AB5 law.

    And, depending on how SCOTUS rules on a pending case regarding how California’s AB5 applies to the trucking industry, the problem will only get worse. If owner-operators who contract with larger freight companies must be classified as employees there will likely be a huge contraction in trucking capacity in California.

  • Calabasas Physician to Serve 14 Months for $800K in Kickbacks
    on October 18, 2021 at 11:26 AM

    A Calabasas physician was sentenced to 14 months in federal prison for accepting nearly $800,000 in bribes and kickbacks as part of a conspiracy that unlawfully billed the worker's compensation system for compounded medication prescriptions.

    Dr. Amir Friedman, 56, pleaded guilty in October 2019 to one count of conspiracy to commit honest services mail and wire fraud, and to violate the Travel Act, a federal law that - among other things - forbids the use of the U.S. mail for the purpose of aiding bribery.

    Friedman, a licensed anesthesiologist, violated the fiduciary duty he owed to his patients by accepting kickbacks and bribes for writing prescriptions for compounded medications for his patients.

    Compounded drugs are tailor-made products doctors may prescribe when the Food and Drug Administration-approved alternative does not meet the health needs of a patient.

    From August 2013 to May 2015, Friedman conspired with New Age Pharmaceuticals Inc., a Beverly Hills-based company, and a marketer - listed in court documents as "Marketer A" - to violate federal law.

    According to a related 2016 indictment, Hootan Melamed allegedly operated and was the de facto owner of New Age Pharmaceuticals Inc.. He also had business interests in other pharmacies, including RoxSan Pharmacy Inc., Concierge Compounding Pharmaceuticals, Inc , Alexso, Inc. and Portland Professional Pharmacy,  Melamed entered into a plea agreement in 2020, and was sentenced to 6 months in prison on March 29, 2021.

    Insurance companies under the California Workers’ Compensation System reimbursed New Age for dispensing prescription drugs and other pharmaceuticals. Marketer A was paid commissions for facilitating the referral of compounded drug prescriptions.

    Marketer A provided pre-printed prescription pads for compounded drugs to Friedman and offered Friedman kickbacks and bribes for each prescription he wrote. After Friedman wrote the kickback-tainted prescriptions, New Age dispensed the compounded drugs, billed insurance companies for reimbursement and shipped through the mail the compounded drugs to patients.

    In total, Friedman accepted $788,140 in kickbacks and bribes - a sum he received in the form of approximately 28 check payments that represented illicit proceeds from the conspiracy. He admitted in his plea agreement that he was aware that the compounded drugs he prescribed were far more expensive than equivalents.

    The FBI investigated this matter. Assistant United States Attorney Poonam G. Kumar of the Major Frauds Section prosecuted this case.

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