Author: WorkCompAcademy

Dr. Gary Martinovsky graduated from the University of California, Berkeley, as a bachelor of science and from Stanford University as a medical doctor. He completed a residency in anesthesiology and acute care at Stanford School of Medicine, and a postgraduate fellowship in Pain Medicine at the University of California, Davis. He holds board certification in Pain Medicine from the American Board of Anesthesiology.

NBC Bay Area reports that Dr. Gary Martinovsky was first arrested on Thursday, March 20, 2014 and charged with insurance fraud and unlawful dispensing of medicine. About half of his patients at the time were injured workers, and investigators claimed he was bilking the California workers’ compensation system.

Inspectors for the Alameda County District Attorney’s Office, the agency behind an undercover investigation into Martinovsky, accused him of running a medical mill and using injured workers for his own financial gain. They would claim in court documents that his office billed an insurance company for services he never performed and that Martinovsky had a “cavalier attitude” toward dispensing drugs.

But the case against Martinovsky was dismissed in Alameda because it had been filed in the wrong county.

Prosecutors then filed a a single felony count for violating Cal. Penal Code § 550(a)(7) (knowingly submitting a claim for a health care benefit not used by, or on behalf of, the claimant) was filed in Contra Costa County Superior Court. During the preliminary hearing, which was not completed, the charge was reduced to a misdemeanor. That case was dismissed after Martinovsky completed a one-year diversion program. He never entered a guilty plea or admitted guilt of any kind.

In 2016 Dr. Martinovsky filed a civil rights lawsuit in federal court against the Alameda County District Attorney’s Office and an investigators for the Department of Insurance. He alleged that because “of the search of the clinic, and the defamatory statements made by Defendants, word spread quickly through the regional medical community, legal professionals and insurance industry that Dr. Martinovsky had been arrested and charged with felony drug and insurance fraud charges. The effect was immediate and devastating for Plaintiffs’ otherwise spotless reputation and growing medical practice, and caused severe emotional distress”.

The federal civil rights case was resolved and dismissed with prejudice based upon a stipulation and a settlement between the parties in May 2018 for undisclosed terms.

Now, on December 7, 2023, the San Francisco District Attorney Brooke Jenkins announced that a 51 year old Doctor Gary Martinovsky, who lives in San Francisco; and his 68 year old office assistant and mother-in-law, Raisa Rikoshinsky, who lives in San Bruno; and one of the businesses he owns, Integrated Pain Care (IPC), have been criminally charged with 40 violations of insurance fraud under (PC 550(a)(5), PC 550(a)(7), and PC 550(a)(8)), for fraudulent billing, double billing, and billing for services not rendered.

Gary Martinovsky MD is listed as a QME in Anesthesiology, and also in Pain Managment. DWC Medical Unit records reflect 10 Northern California Offices for each specialty, or a total of 20 addresses. According to the California Department of Industrial Relations, Dr. Martinovksy has 3,005 liens worth $29,443,467 outstanding as of October 2023.

As alleged in court documents in this newest case, Dr. Martinovsky, IPC, and Raisa Rikoshinsky allegedly filed liens with the State of California Division of Workers Compensation asking for payment of bills which had already been paid in full or in part.

California’s Workers Compensation law allows a doctor to file a lien against an insurance provider for payment for services rendered to an injured worker, where the bill has not been paid.

In support of the filed liens, prosecutors allege the defendants submitted fraudulent documents and/or failed to disclose that they had already received payments for the billed services. In addition, Dr. Martinovsky and IPC billed three insurers for services not rendered, by claiming $625 numerous times for services not provided to injured workers.

In terms of number of liens filed from 2022 to the present,  prosecutors claim Integrated Pain Care was second in the State of California only to the Employment Development Department, the state agency that administers California’s Unemployment Insurance, Disability Insurance, and Paid Family Leave programs and maintains records for more than 19 million workers.

Dr. Martinovsky and Ms. Rikoshinksy are scheduled to be arraigned on January 12, 2024, at 9A in Department 10 at the Hall of Justice. If convicted of all charges, Dr. Martinovsky and Ms. Rikoshinsky each face over five years in State Prison.

This case was developed through an investigation conducted by the San Francisco District Attorney’s Office Economic Crimes Unit, with the California Department of Insurance assisting in the arrests.

Although charges have been filed, this remains an active investigation. Anyone with information is asked to call the San Francisco District Attorney’s Investigations Tip Line at 1-628-652-4362. You may remain anonymous.

A South Bay woman has been sentenced to 180 months in federal prison for billing Medicare more than $24 million by submitting fraudulent claims for medically unnecessary durable medical equipment – mostly power wheelchairs (PWC) – and PWC repairs, many of which were never performed, the Justice Department announced today.

Tamara Yvonne Motley, 55, a.k.a. “Tamara Ogembe,” of Redondo Beach, was sentenced Tuesday by United States District Judge Stanley Blumenfeld Jr., who also ordered her to pay $13,107,422 in restitution as well as an additional $2,300 in special assessments.

At the conclusion of a five-day trial, a jury on June 27 found Motley guilty of 20 counts of health care fraud, two counts of aggravated identity theft, and one count of conspiracy to commit money laundering. Judge Blumenfeld ordered her remanded into federal custody that same day after the verdict was read.

From July 2006 to August 2014, Motley was the de facto owner of the Hawthorne-based Action Medical Equipment and Supplies. From January 2013 to November 2016, Motley was the de facto owner of the Ventura-based Kaja Medical Equipment & Supply. Both companies were enrolled with Medicare in the names of Motley’s out-of-state relatives.

Motley orchestrated a scheme in which she paid marketers for patient referrals and then directed them to take patients to corrupt physicians, who prescribed medically unnecessary durable medical equipment, such as PWCs, that Motley’s companies used to submit fraudulent bills to Medicare.

In January 2011, when Medicare changed the reimbursement rules for PWCs to make the upfront payments less lucrative to suppliers, Action switched to billing Medicare for PWC repairs, and continued that scheme at Kaja once Action was shut down. These repairs were not medically necessary not only because the patients did not need the PWCs to begin with, but also because those repairs were not needed to make the PWCs serviceable in any event and often were never performed. These repairs were expensive – often billed for $3,000 to $4,000 each – and accounted for nearly half of Action’s billings and almost all of Kaja’s.

Over an eight-year period, Action billed Medicare more than $18.2 million for DME – most for PWCs, but also for PWC accessories, knee braces and back braces – and the repair or replacement of PWCs. Medicare paid Action nearly $10.3 million.

Between July 2013 and November 2016, Kaja billed Medicare $6.3 million, primarily for PWC repairs. Medicare paid Kaja approximately $2.8 million for those claims.

“[Motley] manipulated those around her to serve her criminal ends,” prosecutors argued in a sentencing memorandum. “She used relatives and employees to conceal her role in the scheme, and even used her infant’s caretaker to carry out the illegal activities of her scheme. She took advantage of vulnerable Medicare beneficiaries in far-flung places like Calexico who were elderly and often non-English speaking. She deceived inspectors to preserve her companies’ accreditation with Medicare.”

Two other defendants were convicted in this case:

– – Cynthia Karina Marquez, 48, of Paramount, who worked as an office manager at both Action nd Kaja, pleaded guilty in December 2019 to two counts of making false statements affecting a health care program. She received a time-served sentence, was placed on supervised release for three years, and was ordered to pay $9,886,646 in restitution.
– – Juan Roberto Murillo, 47, of Montebello, who worked at both medical supply companies as a repair technician, pleaded guilty in November 2019 to one count of conspiracy to commit money laundering. He was sentenced to three years’ probation and was ordered to pay $2,504,119 in restitution.

The United States Department of Health and Human Services, Office of Inspector General; the FBI; and the California Department of Justice investigated this matter.Assistant United States Attorneys Kristen A. Williams of the Major Frauds Section and David H. Chao of the General Crimes Section prosecuted this case.

Eunices Argueta began working at Menzies Aviation, a freight operations company in El Segundo, California, in 2008 when she was 18 years old. From about 2008 to 2014, Argueta and Dzung Nguyen worked for Menzies at a location near Los Angeles International Airport.

In October 2014, Worldwide acquired Menzies; Argueta and Nguyen continued to work for Worldwide. Argueta was a lead agent in the import department; her supervisor was Sonia Flores. Nguyen worked as their manager. When Flores was not present, Argueta worked as the acting supervisor and oversaw the work of other agents.

In November 2016, Worldwide hired Maria Diaz as its Director of Human Resources for its western region. Before Diaz, there was no human resources director at Worldwide’s Los Angeles Airport location.

In November 2016 and January 2017, several employees whom Argueta supervised submitted written complaints to Worldwide about Argueta, accusing her of bullying, harassment, retaliation, yelling, making threats and other bad behavior, including discriminating against a pregnant subordinate. Although Argueta moved in limine to preclude admission of the substance of the complaints, the trial court not only allowed their admission but ruled that the entire text of the complaints could be admitted. So Argueta’s attorneys preemptively asked Worldwide’s Diaz to read the written complaints aloud to the jury.

In January 2017, Diaz met with Argueta to discuss these complaints. Diaz testified she told Argueta that if her behavior did not improve, she would be terminated. Argueta gave a different account of the meeting, testifying she was not expressly threatened with termination.

In early May 2017, Urania Chavarria, one of the authors of a complaint that has been admitted into evidence, became upset because she believed that Argueta picked up and ate almost all of the chocolate bar Chavarria had left on her desk, leaving only a tiny piece. Argueta claimed she broke off only a small piece. When her supervisor Flores questioned her about the chocolate, Argueta said she only took a little piece. Flores reviewed a surveillance video and accused Argueta of lying.

In her complaint, Argueta alleged Nguyen began sexually harassing her in 2016. On May 11, 2017, Nguyen placed Argueta “out of service” while the matter was investigated; this essentially meant she was placed on paid leave. Argueta subsequently claimed many more acts of harassment. Worldwide conducted an investigation of Argueta’s complaint, although Argueta contends it was not thorough.

Diaz, facility assistant general manager Javier Trujillo, and facility general manager John Oh then met with Nguyen. Nguyen admitted some but not all the acts Argueta alleged.As a result of the investigation, Worldwide issued a “Letter of Concern” to Nguyen stating that Nguyen had admitted to some actions “that can easily be construed as sexual harassment” and “[t]his is a violation of our policy.” Worldwide imposed a number of conditions on Nguyen’s continued employment: undergo additional sexual harassment training; cease sending emojis to subordinates; use “appropriate language”; keep a minimum of three feet from employees; and not make any physical contact with an employee without their express permission.

When Argueta returned from leave in June 2017, she was transferred to a different floor and assigned to a different client; she worked for the client’s manager and was supervised only by Trujillo. Her pay remained the same. In February 2018, Argueta resigned from Worldwide. She stated she resigned because her new schedule was not compatible with her family responsibilities and her new position offered diminished potential to advance.

In 2019, three female Worldwide employees made written complaints that Nguyen was sexually harassing them. Some of the actions occurred as far back as 2017. Worldwide’s (new) local human resources manager for the Los Angeles Airport facility investigated the complaints and found Nguyen had violated Worldwide’s sexual harassment policy and the conditions in the Letter of Concern. Worldwide terminated Nguyen in March 2019.

Argueta filed this action against Worldwide, alleging sexual harassment and retaliation in violation of the Fair Employment and Housing Act (FEHA), and failure to prevent both. After the jury returned a defense verdict she filed a motion for a new trial and a motion for judgment notwithstanding the verdict. The trial court denied both motions. Argueta appealed, contending the trial court’s admission of evidence of the substance of other employees’ complaints about her to Worldwide was erroneous and warrants a new trial. The Court of Appeal agreed in the published case of Argueta v. Worldwide Flight Services, Inc -B306910 (November 2023). It agreed that admission of the substance of the complaints against Argueta was prejudicial error and reverse the trial court’s denial of her motion for a new trial. The judgment was reversed and the matter is remanded for a new trial.

A party is entitled to a new trial when an irregularity in the proceedings, or any order of the court or abuse of discretion, “materially affect[s] the substantial rights of such party” and prevents them from having a fair trial. (Code Civ. Proc., § 657(1).)

As a general matter, the denial of a motion for new trial is reviewed for abuse of discretion, with the appellate court making an independent determination as to whether any error was prejudicial. The most fundamental rule of appellate review is that the judgment or order challenged on appeal is presumed to be correct, and it is the appellant’s burden to affirmatively demonstrate error.

“Here, the employee complaints about appellant fit the quintessential definition of prejudice. The trial court failed to recognize that the evidence had a high potential for undue prejudice. It is, as Argueta contends, character evidence. The complaints show her as mean, rude, lazy, and dishonest. “

“The trial court gave a limiting instruction on this evidence, and such instructions can ameliorate section 352 prejudice. Indeed, they are generally considered effective. Limiting instructions are less effective, however, when there is little or no probative value to the evidence and it has a high potential for prejudice.” … “It simply and vaguely told the jury that “the complaints of other employees about Ms. Argueta are not being received for the truth of those complaints; rather, they are being received for the effect on Ms. Argueta when she was told about those complaints.”

“We find her arguments on appeal sufficient. We agree with Argueta that the high potential for undue prejudice from admission of the substance of the complaints far outweighed the very minimal probative value of that evidence, and a limiting instruction would not be effective under the circumstances of this case.”

Last July, according to a report by HealthAffairs.org. the Chair of the House Energy and Commerce Committee, Cathy McMorris Rodgers (R-WA) and two colleagues on the Health and Oversight Subcommittee sent a forceful letter to Food and Drug Administration (FDA) Commissioner Robert Califf regarding FDA’s inadequate inspections of drug manufacturing plants in India and China: “The FDA’s recent decision to address shortages of critical drugs by allowing the temporary import of otherwise unapproved drugs from India and China makes having effective foreign inspection programs in those countries critical … we are worried that the United States is overly reliant on sourcing from foreign manufacturers with a demonstrated pattern of repeatedly violating FDA safety regulations.”

Bloomberg News reports that the Department of Defense recently announced that it will begin independently testing the quality and safety of imported generic drugs. Defense officials are in talks with Valisure, an independent lab, to test the quality and safety of generic drugs it purchases for millions of military members and their families, according to several people familiar with the matter who asked not to be named as the details aren’t public..

Generic drugs account for 90 percent of prescriptions dispensed in the United States. They also represent a sizeable share of the drugs used by hospitals to treat patients in ICUs, oncology units, transplant centers and emergency departments.

Because generic drugs sold in the U.S. must be FDA-approved, health care providers and patients assume that they are safe and effective. There is growing evidence that this confidence may be misplaced. In fact, quality issues are the precipitating factor in more than 60 percent of generic drug shortages.

The Hatch-Waxman Act of 1984 created a streamlined pathway for generic drugs. All a manufacturer must do is demonstrate that the generic version it proposes to sell is “bioequivalent” – meaning it delivers roughly the same amount of active pharmaceutical ingredient (API) into a person’s bloodstream, at roughly the same rate and duration, as the brand-name drug on which it is based. To demonstrate bioequivalence, a manufacturer typically hires a contract research organization (CRO) to perform the necessary testing with 24 to 36 healthy volunteers.

Once a drug is approved for sale in the U.S., FDA relies on periodic inspections of pharmaceutical plants and record reviews to ensure that a company complies with “Good Manufacturing Practices,” (GMP). FDA does not routinely test the medicines themselves. Instead, it asserts that manufacturers are responsible for the quality and safety of their products. In the early years of Hatch-Waxman, this honor system worked reasonably well. It does not today. Recent FDA actions and published research indicate that generic medicines are not always bioequivalent or safe. For example:

– – In 2009, researchers published a study in Neurology titled “The risks and costs of multiple-generic substitution of topiramate,” a drug that treats epilepsy. They found that switching generics was associated with significantly higher rates of hospitalizations, head injury or fracture and longer hospital stays.
– – In 2012, an FDA-sponsored a study of Budeprion XL, an extended-release antidepressant, revealed that a manufacturer’s generic did not perform as well as the brand-name drug. Years after hundreds of consumers first raised concerns, the product was withdrawn from the market.
– – Although generic manufacturers may contain different “inactive” ingredients, such as fillers and binders, than the brand-name drug, few of these ingredients have been tested to determine if they can affect bioequivalence. In 2015, FDA reported that in some instances, they do.
– – In 2017, Circulation published a study titled “Impact of the Commercialization of Three Generic Angiotensin II Receptor Blockers on Adverse Events in Quebec, Canada.” The researchers found that shortly after the generic versions came on the market, reports of adverse events significantly increased.
– – In 2018, after being alerted by independent industry testing, FDA determined that some generic ARB medicines, including versions of valsartan, losartan, and irbesartan, contained nitrosamines – a probable carcinogen.
– – In 2020, an independent laboratory found “unacceptable levels” of NDMA, a known carcinogen, in samples of metformin, a diabetes medication taken by 20 million The finding was reported to FDA and led to broad recalls.
– – In 2021, a study of generic versions of tacrolimus, an immunosuppressant, found that some dissolve too rapidly. This might affect therapeutic duration and increase the risk of organ rejection.
– – Also in 2021, FDA raised integrity concerns with the bioequivalence studies of approximately 100 drugs conducted by two Indian CROs. The agency rejected the studies and required manufacturers to repeat them. Unlike its European counterpart, which suspended marketing of the products, the FDA allowed the drugs to continue to be sold with a special code to alert pharmacists that they should not be considered “automatically substitutable” for their brand-name counterparts.

Because FDA approval is considered the benchmark for drug quality, the US companies that supply most generic drugs to America’s pharmacies, clinics, and hospitals search the globe for the least expensive generic versions of brand-name drugs. The “race to the bottom” this engendered drove most generic drug production offshore. As a result, America is highly reliant on other countries for its generic drugs and the ingredients and raw materials required to make them.

Roosevelt Luckett worked for a McDonald’s restaurant located on Venice Boulevard in Los Angeles.From time to time, Luckett worked in the drive-thru cash booth. Luckett asked whether he could use a seat in the drive-thru cash booth, and McDonald’s denied his request. His employer operated approximately 78 corporate McDonald’s restaurants in California with drive-thru cash booths.

Luckett sued his former employer, McDonald’s Restaurants of California, Inc. under the Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.). Luckett alleged McDonald’s violated Industrial Welfare Commission Wage Order No. 5-2001, section 14(A), which requires employers to provide suitable seats to their employees “when the nature of the work reasonably permits the use of seats,” and section 14(B), which requires an employer to provide suitable seats in reasonable proximity of the work area for employees to use during lulls in operation. (Cal. Code Regs., tit. 8, § 11050, subd. 14(A) &(B) [Wage Order No. 5-2001];

McDonald’s moved for summary judgment. McDonald’s argued (among other issues) that there was no factual dispute that the nature of the work did not reasonably permit the use of a seat at its drive-thru cash booths. It argued the booths were a tight workspace, designed for standing, and the fluidity of movement required to service customers (including frequent foot movements, reaching, bending, shifting, and twisting) could not be reasonably performed from a seated position. Additionally, placing a seat in the booth would create a tripping hazard. McDonald’s also argued that Luckett failed to exhaust administrative remedies as required under PAGA with respect to his section 14(B) claim and thus, the claim was procedurally barred.

Defendant’s evidentiary submission in support of its motion included among other things the declaration of its operations manager in California since January 2013, Saad Sabbagh, the declaration of McDonald’s then-director of customer experience, Michael Cramer, and the report of a retained ergonomics expert, Jeffrey Fernandez, PhD.

The trial court granted the motion, finding there was no factual dispute that the nature of the work did not reasonably permit use of a seat in McDonald’s California drive-thru booths. The Court of Appeal affirmed the summary judgment In the unpublished case of Luckett v. McDonald’s Restaurants of California -B317481 (November 2023).

In Kilby v. CVS Pharmacy, Inc. (2016) 63 Cal.4th 1,the California Supreme Court explained, “Whether an employee is entitled to a seat under section 14(A) depends on the totality of the circumstances. Analysis begins with an examination of the relevant tasks, grouped by location, and whether the tasks can be performed while seated or require standing. This task-based assessment is also balanced against considerations of feasibility. Feasibility may include, for example, an assessment of whether providing a seat would unduly interfere with other standing tasks, whether the frequency of transition from sitting to standing may interfere with the work, or whether seated work would impact the quality and effectiveness of overall job performance. This inquiry is not a rigid quantitative analysis based merely upon the counting of tasks or amount of time spent performing them. Instead, it involves a qualitative assessment of all relevant factors.” (Id. at pp. 19-20.).)

Drive-thru cash booth employees have primary and secondary duties. Their primary duties include taking orders and completing payment transactions for drive-thru customers, and providing “excellent customer service” while doing so. For example, Sabbagh observed, “It is McDonald’s expectation that employees in the cash booth reach out to customers who are sitting in their vehicles, rather than make our guests take off their seat belts, stretch, or open their vehicle doors to reach in toward the employee during a payment transaction.” Sabbagh also declared that McDonald’s places great emphasis on the guest experience and speed of service. Therefore, McDonald’s tracks the speed of service for each restaurant and provides training regarding how to diagnose and fix slowdowns.”

“There is seating in the crew break room to ensure that employees are able to sit and rest during their formal breaks. However, generally speaking, outside of these breaks, it is not acceptable to McDonald’s for an employee to be sitting down and doing nothing while on duty – except, perhaps, as an accommodation for a medical issue.” Thus, to provide the requisite level of service, McDonald’s expects its employees to remain busy between customer transactions by performing secondary duties.

Because the work in the cash booth is most appropriately done from a standing position, McDonald’s generally only allows employees to sit as an accommodation for medical reasons.

In assessing feasibility, the employer’s business judgment and the physical layout of the workspace may be relevant considerations. (Kilby, supra, 63 Cal.4th at pp. 21-22.) However, physical differences among employees are not relevant to the section 14(A) inquiry. “That provision requires a seat when the nature of the work reasonably permits it, not when the nature of the worker does.” (Kilby, supra, at p. 23.)

The Court of Appeal Concluded by noting “Luckett has not demonstrated a genuine issue of material fact as to whether it is feasible to place a seat in the drive-thru cash booths.”