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Big Three US Automakers Decline to Enforce Vaccine Mandate

Detroit’s three big automakers – General Motors, Ford and Chrysler parent Stellantis – announced that they are not yet mandating vaccines for thousands of their unionized workers.

The UAW has resisted suggestions it agree to vaccine mandates. Last September, UAW President Ray Curry told its members that until the various rules are finalized, the UAW’s bargaining position continues to be that vaccination is strongly encouraged, but a personal choice.”

Biden has worked hard to win the autoworkers’ support, in part because UAW members are crucial to winning elections in Michigan and other Midwestern states. But the UAW’s reluctance to support vaccination mandates reflects a broader resistance among many unions to the Biden administration’s policies.

According to a statement given by the UAW Task Force, they aligned on a policy of voluntary and confidential disclosure of vaccination status for UAW members. Each company will provide additional communication to employees on how, where and when to report their vaccination status.

In addition to encouraging members to disclose their vaccination status, the Task Force continues to urge all members, coworkers, and their families to get vaccinated and get booster vaccinations against COVID-19, while understanding that there are personal reasons that may prevent some members from being vaccinated, such as health issues or religious beliefs.

After reviewing the status of CDC and OSHA guidelines, the Task Force also decided it is in the best interest of worker safety to continue masks in all worksites at this time.

While it is understood that masks can be uncomfortable, the spread of the Delta variant and recent data outlining the continued high rate of transmission in some geographic areas continue to be a serious health threat.

One of the best ways to fight this virus is by getting as many people as possible vaccinated. The more UAW members, coworkers and their families are vaccinated and have boosters, the quicker this deadly pandemic can be vanquished.

The Task Force will continue to closely monitor the COVID health status, and all legal and procedural changes to CDC and OSHA guidelines in order to ensure that everything possible is being done to keep families, members and employees safe.

According to a report by Reuters, Stellantis said it would require all of its 14,000 U.S. salaried non-union employees to be fully vaccinated against COVID-19 by Jan. 5, as it prepares for a phased reopening of its U.S. offices next year. Nearly 80% of its salaried non-union U.S. workforce self-reported that they are fully vaccinated, Stellantis said.

Earlier this month, Ford said it would require most of its 32,000-strong U.S. salaried workforce to be vaccinated. The second largest U.S. automaker earlier this month said more than 84% of U.S. salaried employees already are vaccinated.

Ford said earlier it was still evaluating its policy for “manufacturing locations, parts depots and Ford Credit, including analyzing federal and collective bargaining requirements.”

GM, Ford and Stellantis said last month they would mandate vaccines for all autoworkers in Canada.

BofA Resolves California Wage-Hour Claims for $11.5M

Three classes of current and former nonexempt employees who have various jobs at Bank of America’s California branches – challenge Bank of America’s alleged failure to pay them for their off-the-clock work, provide meal-and-rest breaks, or reimburse expenses in violation of the California Labor Code, California’s Unfair Competition Law (UCL), and California’s Private Attorney’s General Act (PAGA).

There were three separate cases, which were consolidated by the settlement order. One was filed on behalf of operations managers in California State Court in March 2019, which was then moved to federal court.

The lead plaintiff claimed BofA operations managers had to work five hours or more without meal and rest breaks, which is a violation of the California labor code. Often during breaks operations managers had to help bankers and tellers and answer customer inquiries without reimbursement. As well, employees were not paid for having to use their own cellphones for work issues.

The second case filed in 2018 on behalf of tellers, claims tellers had to fire up their computers and programs before clocking in and same went for winding down after clocking out. Both pre- and post-shift work totaled more than 30 minutes per day. And like Operations Managers, tellers also had to work through meal and rest breaks, but the bank made them record on their time sheets that they took breaks..

The third case was filed on behalf of personal bankers in March 2020 and accused BofA of the same labor violations, i.e., working off-the-clock and working through meal and rest breaks without reimbursement.

The parties settled the case following the recommendation by a mediator, and the court held a fairness hearing on October 28, 2021 and approved the settlement.

There are 20,190 class members (19,895 identified initially plus 295 omitted inadvertently because a job code was not included). They worked as tellers, personal bankers and operations managers.

The total non-reversionary Gross Settlement Amount is $11,500,000, and the Net Settlement Amount recovered by the class is approximately $7,497,202.97 after the following deductions: (1) $86,250 in PAGA penalties; (2) $30,000 in enhancement payments to the named plaintiffs; (3) $84,000 for the claims administration’s expenses; (4) $3,450,000 in attorney’s fees; (5) $54,356.17 in litigation costs; and (6) employer payroll taxes of $298,190.86.

Multiple other class action lawsuits filed before 2010 claimed the bank failed to pay overtime and violated other wage and hour laws to non-exempt (hourly) employees working at retail banking centers and in certain call centers. The cases were consolidated in 2010 as In re: Bank of America Wage and Hour Employment Litigation in Kansas federal court and the bank settled for $73 million but denied the allegations.

November 22, 2021 – News Podcast

Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: OSHA Ordered to “Take No Steps” to Enforce Vaccine Mandate. OSHA Vaccine Mandate Cases Consolidated in 6th Circuit. Texas Sues CMS Over Healthcare Worker Vaccine Mandate. O.C. Disneyland Cast Loses Minimum Wage Class Action. SoCal Family Sentenced for $20M COVID Relief Fund Fraud. Santa Clarita Man Sentenced for $1.8M COVID-Relief Funds Fraud. Double Dipping Santa Rosa Injured Worker Convicted. City of Oroville and Other Governments Reject COVID Mandates. Drug Overdose Deaths Hit Record High During Pandemic. Company Awarded Patent for Exaggerated Injury Detection AI.

Jury Verdict – Pharmacies Held Liable for Opiod Distribution

A big question in opiod litigation pertains to how far down the chain of distribution, from the drug manufacturer, the prescribing doctor, to the pharmacy that fills a prescription, can liability be established by plaintiffs seeking payment of the opiod litigation. A new jury verdict this week may help answer that question.

Bloomberglaw reports that a Cleveland jury concluded Walmart Inc., CVS Health Corp. and Walgreens Boots Alliance Inc. helped create a public-health crisis by failing to properly monitor opioid prescriptions, the drug industry’s latest loss in the expanding litigation over the painkillers.

The federal-court panel backed claims by northeast Ohio’s Trumbull and Lake Counties that the pharmacy chains failed to create legally mandated monitoring systems to detect illegitimate opioid prescriptions. The counties are seeking reimbursement for the costs of dealing with addictions and fatal overdoses. Similar suits are pending against drugmakers and distributors. A judge will hear arguments in May about the counties’ compensation claims.

The two Ohio municipalities want the pharmacy owners to pay a combined $2.4 billion to replenish depleted budgets for drug treatment, social services and police, with $1.3 billion for Trumbull and $1.1 billion for Lake, according to people familiar with their demands.

Walmart and other pharmacy operators argued the municipalities couldn’t prove they created a so-called “public nuisance” through lax prescription oversight when the scripts were written by licensed doctors. They also touted their systems designed to help pharmacists track patients’ visits, making it easier to spot red flags among prescriptions.

It’s the first jury verdict in the sprawling, four-year opioid litigation. Municipalities across the nation have accused opioid makers, distributors and sellers of downplaying the painkillers’ addiction risks and sacrificing patient safety for billions in profits. The jurors in Cleveland deliberated for more than five days before returning the unanimous verdict on Tuesday.

The jury’s decision sounds a bell that should be heard by pharmacy companies around the country,” Mark Lanier, the Ohio counties’ lead lawyer, said after the verdict was announced. “Laws regarding proper monitoring of prescription drugs are be taken seriously and not ignored or downplayed.”

The companies all said they would appeal the verdict. “We look forward to the appeals court review of this case, including the misapplication of public nuisance law,” Mike DeAngelis, a CVS spokesman, said in an emailed statement. “The facts and law do not support the verdict,” Walgreen’s Fraser Engelman added.

“We will appeal this flawed verdict, which is a reflection of a trial that was engineered to favor the plaintiffs’ attorneys and was riddled with remarkable legal and factual mistakes,” Randy Hargrove, a Walmart spokesman, said in an emailed statement.

DWC Updates Low Back Treatment Guideline

The Division of Workers’ Compensation has posted an order adopting regulations to update the evidence-based treatment guidelines of the Medical Treatment Utilization Schedule (MTUS).

The updates, effective for medical treatment services rendered on or after November 23, 2021, incorporate by reference the American College of Occupational and Environmental Medicine’s (ACOEM’s) most recent treatment guidelines to the Clinical Topics section of the MTUS.

The ACOEM guidelines that are incorporated by reference into the MTUS are:

– – Low Back Disorders Guideline  268 pages, (ACOEM February 13, 2020)

The administrative order consists of the order and two addenda:

– – Addendum one shows the regulatory amendments directly related to the evidence-based update to the MTUS.
– – Addendum two contains a hyperlink to the ACOEM guideline adopted and incorporated into the MTUS by reference.

A few of the more notable recommendations of the new guideline which are illustrative of new approaches are:”

– –  “Patients should be encouraged to return to work as soon as possible as evidence suggests this leads to the best outcomes. This process may be facilitated with temporary modified (or alternative) duty particularly if job demands exceed patient capabilities. Full-duty work is a reasonable option for patients with low physical job demands and/or the ability to control such demands (e.g., alternate their posture) as well as for those with less severe presentations”

– –  “Among the modes of exercise, aerobic exercise has the best evidence of efficacy, whether for acute, subacute, or chronic LBP patients.”

– –  “Many invasive and noninvasive therapies are intended to cure or manage LBP, but no quality evidence exists that they accomplish this as successfully as therapies that focus on restoring functional ability without focusing on pain. In those cases, the traditional medical model of “curing” the patient does not work well. Instead, patients should be aware that returning to normal activities most often aids functional recovery.

– – “Patients should be encouraged to accept responsibility for managing their recovery rather than expecting the provider to provide an easy “cure.” This process promotes the use of activity and function rather than pain as a guide, making the treatment goal of return to occupational and non- occupational activities more obvious.”

Health care providers treating, evaluating (QME), or reviewing (UR or IMR) in the California workers’ compensation system may access the MTUS (ACOEM) Guidelines and MTUS Drug List at no cost by registering for an account.

Supreme Court Denies Review of $86.7M Roundup Award

The outcome of several verdicts in litigation against the makers of the Roundup weed killer are of significance to worker’s compensation administrators who might be involved in CT claims filed b.y agricultural workers. There may, or may not be opportunities for subrogation depending on the eventual trend.

The latest development this month involved an $86.7 million damages award for a Livermore couple stricken with cancer after years of spraying Roundup weed killer. This result will now be final, after the California Supreme Court refused to hear Monsanto’s appeal.

The decision effectively upholds a 2019 jury verdict that found Monsanto was aware of the risks associated with its product and negligently failed to warn consumers, and in so doing also acted with malice, oppression or fraud.

Courthouse news reports that both Alva and Alberta Pilliod were diagnosed with non-Hodgkin lymphoma that they attributed to decades of using Roundup: Alva with systemic diffuse large B-Cell lymphoma in his bones in 2011; Alberta with diagnosed with an aggressive subset of that lymphoma in her brain in 2015.

In addition to $55 million in combined compensatory damages, the jury awarded each of the Pilliods $1 billion in punitive damages. During the course of the five-week trial back May 2019, Alberta testified that she never would have bought the popular herbicide if she had known that it was brought to market based on approval studies that were found to be invalid.

Alameda County Superior Court Judge Winifred Smith ultimately slashed the award to a total of $86.7 million, and an appellate court affirmed it in an August order where Justice Marla Miller wrote that “Monsanto’s continuing to sell Roundup after learning that the original approval studies were invalid shows conscious disregard for public health and safety.”

In other Roundup cases, two other Bay Area residents were awarded hefty damages by separate juries. In August 2018, a jury found Monsanto owed Dewayne Lee Johnson $289 million in damages – later reduced by a judge to $78 million – after finding Roundup caused his terminal non-Hodgkin lymphoma, and a federal jury awarded Ed Hardeman $75 million in punitive damages for failing to warn him about the product’s hazards, which a a judge cut down to $20 million.

Bayer AG, which bought Monsanto for $63 billion in 2016, has since appealed the Hardeman case to U.S. Supreme Court.

However, the defendants recently secured a win in Los Angeles state court, where a jury found there wasn’t enough evidence to prove Roundup was a substantial factor in causing the rare cancer that killed a young boy.

A federal judge in Georgia also found in Bayer’s favor on a plaintiff’s failure to warn claim, ruling that the Federal Insecticide, Fungicide, and Rodenticide Act requires the company to follow instructions by the EPA not to sell Roundup with a cancer warning on its label. An appeal is pending before the Eleventh Circuit.

In June 2020, Bayer announced a $10 billion agreement to settle a bevy of claims related to Roundup users who have contracted non-Hodgkin lymphoma. But this year, U.S. District Judge Vincent Chhabria refused to approve a $2 billion deal to resolve claims from Roundup users who have not developed cancer but may be diagnosed in the future.

Bayer has also vowed to remove glyphosate-based products from retail store shelves by 2023 to prevent future litigation, though the company has consistently said that it stands behind Roundup’s safety.

S.F. Disbarred Attorney Faces Insurance Fraud Charges

The San Francisco District Attorney’s Office has charged Russell A. Robinson, a now-disbarred San Francisco-based attorney, with multiple felony counts for defrauding a client, two courts, and two insurance companies – all while illegally practicing law after he was suspended from doing so.

According to public documents, Mr. Robinson had been placed on involuntary inactive status by the California State Bar in June 2019, and was not authorized to practice law after that time. Nonetheless, according to witnesses and records obtained, Mr. Robinson continued to practice as an attorney. He also is alleged to have made false statements to induce a client to retain his services and even filed a lawsuit on the client’s behalf in a California Superior Court. As a part of that lawsuit, Mr. Robinson filed with the Court numerous false documents bearing the forged signatures of a licensed attorney and a legal assistant.

Other records show that Mr. Robinson also impersonated his client, the licensed attorney, and others in his communications with two different insurance companies, and he is alleged to have forged his client’s signature on documents he submitted to those insurance companies. These fraudulent communications and documents resulted in the insurance companies providing approximately $265,000 in settlement proceeds to Mr. Robinson for his client, most of which he allegedly embezzled.

In addition, other records show that Mr. Robinson also forged the signature of a legal assistant on twelve documents he filed with the Review Department of the State Bar Court, which recommended that he be disbarred. The California Supreme Court accepted that recommendation and disbarred Robinson in June 2021.

For his acts, Mr. Robinson has been charged with multiple felony counts, including Unauthorized Practice of Law in violation of Business and Professions Code section 6126(b); False Personation in violation of Penal Code section 529(a)(2); Identity Theft in violation of Penal Code section 530.5; Embezzlement in violation of Penal Code section 503; and Forgery in violation of Penal Code sections 470(a) and 470(c); and Filing a False Instrument in violation of Penal Code section 115(a).

“Our legal system depends on lawyers to be truthful and act with integrity,” said the San Francisco District Attorney. “Breaching that trust hurts not only the individuals who have been defrauded, but damages the confidence the public places in the legal system. Those who practice law are not above it.”

This case was investigated by SFDA Inspector Jonathan Collum, who was assisted by the State Bar of California, Office of Chief Trial Counsel. The SFDA’s investigation into Mr. Robinson’s conduct remains ongoing.

November 15, 2021 – News Podcast

Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: Federal Court of Appeals Stays OSHA Vaccination Mandate. Court of Appeal Clarifies Math of Subrogation Recoveries. Opioid Drugmakers Prevail in Second Case This Month. Feds Sue Uber for Overcharging the Disabled in California. LAPD Chief Takes Tough Stance on Officer Vaccination. Angelenos Fight Back Over Strict COVID Rules. Feds Say “Most Truckers” Can Avoid OSHA Vaccination Mandate. California COVID-19 Cases on the Rise Again! New Study of Vaccination Outcomes of 780 Thousand Veterans. Elimination of Pre-authorization For PT Improves WC Outcomes.

O.C. Sheriff’s Captain Charged with $17M Premium Fraud

Mercury News reports that a former volunteer reserve captain for the Orange County Sheriff’s Department has been charged with defrauding the state workers’ compensation program of $17 million.

54 year old Simon Semaan, who lives in Los Angeles County,  faces a maximum 16 years in state prison if convicted of seven felony counts of fraud and seven enhancements of committing a white collar crime of more than $500,000.  He has pleaded not guilty and is free on $4 million bail. He was let go by the Sheriff’s Department this September

According to authorities, Semaan ran Pacwest Security Services, but did not have workers’ compensation insurance for his employees as required by law. He did have insurance with two different companies for a firm called PSSM Inc. The Costa Mesa company that provides licensed, unarmed security guards,

Semaan had been a sheriff’s reserve officer since 1993 and was a noted supporter of former Sheriff Michael S. Carona. Carona ultimately was found guilty of a federal charge of witness tampering and served 52 months in prison. Semaan, a Los Angeles resident, was let go by the Sheriff’s Department in September.

In 2008, he was appointed by then Gov. Arnold Schwarzegger to a state private security disciplinary review committee.

The alleged $17 million theft represents the largest insurance premium fraud case ever filed in Orange County and the second largest in California, authorities said.

“The Orange County District Attorney’s Office is committed to prosecuting these dishonest business owners as a way of protecting legitimate business owners who follow the law and play by the rules,” said Kimberly Edds, a spokeswoman for District Attorney Todd Spitzer. “Everyone deserves a level playing field, and Orange County is continuing to ensure that no one is gaining an unfair advantage to undercut the competition.”

An attorney for Semaan did not return Mercury News phone calls seeking comment.

The Sheriff’s Department declined to comment, other than to say he was no longer with the agency.

East Bay Doctor Found Guilty of Illegally Prescribing Opioids

Physician Edmund Kemprud, 78, of Dublin, was found guilty of 14 counts of illegally prescribing opioids and other controlled substances patients. Medical Board records show that he was a 1973 graduate of the University of California at San Francisco School of Medicine. He has been licensed in California since 1974. He stipulated to the surrender of his license effective October 25, 2021, and is no longer licensed in California.

According to evidence presented at trial, Kemprud worked in several locations around the East Bay and Central Valley, including one location in a back room of a nail salon and medi-spa in Tracy.

Evidence at trial showed that Kemprud prescribed highly addictive, commonly abused prescription drugs, including Hydrocodone, Alprazolam, and Oxycodone – outside the usual course of professional practice and not for legitimate medical purpose.

He ignored indications that his patients were addicts or that they were diverting the drugs. Instead, he wrote more prescriptions for highly addictive and dangerous controlled substances, charging $79 a visit. He churned out prescriptions so quickly that he often spent less than five minutes with a patient and would see 30 patients in less than a day.

Several pharmacies were so troubled by Kemprud’s prescriptions that they instituted companywide policies to block his prescriptions.

Trial testimony of undercover officers established that on 14 occasions between Sept. 6, 2018, and March 13, 2019, Kemprud prescribed opioids without determining the patients’ medical and prescription histories, without conducting a proper medical examination, without confirming the legitimacy of the patients’ complaints, and without assessing the risk of aberrant drug behavior.

This defendant displayed a blatant disregard for patient safety and the law,” Acting U.S. Attorney Talbert said. “Although he knew his treatment of patients was unlawful, he continued to pump dangerous drugs into the community. It took the effort of agents, investigators, undercover officers, medical professionals who practiced with the defendant and pharmacists to bring an end to Kemprud’s illicit prescription writing. The U.S. Attorney’s Office will continue our vigorous pursuit of those who fuel the opioid epidemic for their own personal benefit.”

This case is the product of an investigation by the California Department of Justice, Bureau of Medi-Cal Fraud and Elder Abuse Drug Diversion Team, the Drug Enforcement Administration, and the Office of Inspector General for the United States Department of Health and Human Services. Assistant U.S. Attorney Veronica M.A. Alegría and Special Assistant U.S. Attorney Robert J. Artuz are prosecuting the case.

Kemprud is scheduled to be sentenced on Feb. 14, 2022, by U.S. District Judge William B. Shubb. Kemprud faces a maximum statutory penalty of 20 years in prison.