Author: WorkCompAcademy

A list of pending COVID-19 litigation filed by employees against their employers maintained by NCCI, reports two that have been filed against California employers.

Norma Zuniga, the surviving spouse of Pedro Zuniga, an employee, who died on April 13, 2020, after contracting COVID-19, sued the employer, Safeway and Albertsons on May 13, 2020 in California Superior Court.

For approximately 22 years, decedent Pedro Zuniga was employed by Safeway as a material handler in the produce department at the Safeway Northern California Distribution Center in Tracy, California.

Plaintiff alleges that in March 2020, workers at the Distribution Center began to fall ill with COVID-19. These employees were mandated to continue working not only regular shifts, but also additional shifts (6 days per week, rather than 4 or 5) with longer hours (16 hours per day).

By mid-March 2020, employees at the Distribution Center, including Decedent, began complaining to their supervisors about the dangerous working conditions and their fears associated with the same. These complaints were met by superiors with threats of retaliatory disciplinary action, including the potential for accruing ‘points’ which could lead to termination.

On April 1, 2020, after experiencing a fever and other symptoms, Decedent received a COVID-19 test, which came back positive a few days later. On April 13, 2020, Decedent died in the Intensive Care Unit at Memorial Medical Center in Modesto, California, of cardiopulmonary arrest and hypoxic respiratory failure allegedly caused by COVID-19. I

Plaintiff’s Complaint filed in Alameda County Superior Court in May, asserts six causes of action for: (1) Negligence, (2) Gross Negligence, (3) Violations of Federal Occupational Safety and Health Act of 1970 (29 U.S. Code § 654); (4) Violations of the California Occupational Safety and Health Act of 1973 (Title 8, California Code of Regulations § 3203 and California Labor Code § 6400 et seq.); Fraudulent Concealment of Injury (California Labor Code § 3602(b)(2)); and (6) Wrongful Death.

In July, Safeway removed the case to the United States Federal District Court for the Northern District of California, and filed a 33 page Motion to Dismiss the complaint asserting that the California Workers’ Compensation Act provides the sole and exclusive remedy for the injuries suffered by the employee.

In their motion, Safeway argues that “The rule of workers compensation exclusivity is not any different for the contraction of Coronavirus in the workplace and any resulting harm. To wit, the State of California has established that COVID injuries and death are to be processed via workers compensation. See Executive Order N-62-20.”

Subsequently, the parties completed a private mediation on August 11, 2020, but were unable to resolve the action. Thus, the stay of proceedings in federal court was lifted, and the matter was allowed to proceed.

On November 20, Safeway filed a Motion to Change Venue to the Eastern District. And plaintiff Norma Zuniga filed a Motion to Remand the case back to the state courts. Both motions are scheduled for December 29, 2020.

The Plaintiffs remand motion is based in part on her First Amended Complaint which removed the federal cause of action and any federal law relied upon in her initial complaint, thus rendering Defendants Notice of Removal moot.

The second case reported on the NCCI list, Brooks v. Corecivic of Tennessee the Federal Court granted the employer’s Motion tp Dismiss as to Plaintiff’s claims for negligent supervision and intentional infliction of emotional distress, and denied the motion as to Plaintiff’s wrongful constructive termination claims.

39 year old Robert Zermeno Delara, of Fillmore, was arrested and charged with insurance fraud for allegedly denying his injured employees health and disability benefits to which they were entitled, and failing to notify his insurance carriers of industrial injuries sustained by his employees.

Delara is the owner-operator of two farm-labor contracting businesses located in Ventura County, Pacific Coast Farm Labor and B&R Farm Labor.

Through these businesses, Delara provides farm-labor and harvesting services to local agricultural producers who rely upon him to provide a skilled workforce while adhering to the safety and workplace injury reporting requirements of California law.

Delara is charged with three felony counts of violating Insurance Code section1871.4 for making false or fraudulent statements to discourage injured employees from seeking medical care.

He is charged with four additional felony counts of violating Penal Code section550(b)(3) for concealing or failing to disclose information that would impact his injured employees’ entitlement to benefits.

It is alleged that Delara’s failure to report workplace injuries resulted in premium losses to his workers’ compensation carriers of approximately $555,326, as well as additional costs related to the denial of benefits.

Delara faces a maximum possible sentence of 11years.

His arraignment is scheduled on November 30, 2020,at 9:00 a.m. in courtroom 12 of the Ventura County Superior Court.

Edward Marquez worked for the County of Los Angeles for approximately 20 years as an officer for the Los Angeles County Office of Public Safety. When that agency merged into the Los Angeles County Sheriff’s Department, Marquez was conditionally offered the position of deputy sheriff, provided he could establish that he was qualified for the position by passing a background check, medical examination, psychological examination, and polygraph examination.

Marquez failed the psychological examination and the Sheriff’s Department subsequently demoted him to the position of custody assistant. He was placed in a temporary assignment. He only worked in that position for a few months before he took a medical leave, and applied to the Los Angeles County Employees Retirement Association for a service-connected disability retirement under Government Code section 31720.

The Association granted Marquez’s application for a disability retirement, it found that his disability was not service connected because it related to a personnel decision, not the performance of his job duties.

Marquez challenged that decision by filing a petition for a writ of administrative mandamus. The trial court found that Marquez’s psychological incapacity was service connected because the psychological examination was required by the Sheriff’s Department as a condition of Marquez’s employment.

The Court of Appeal concluded that the court erred in its legal analysis. It reversed the judgment and remand for further proceedings.in the unpublished case of Marquez v. Los Angeles County Employees.

The only questions are whether Marquez’s psychological disability arose “out of” and “in the course of” employment, and whether his employment “substantially contributed” to his disability, as required under section 31270.

Section 31720 requires that a disability applicant’s employment “must contribute substantially to, or be a real and measurable part of, the employee’s permanent disability,” in order to qualify the employee for a disability retirement.

Although he submitted to the fitness-for-duty test required for the position of deputy sheriff, he was not injured during the psychological examination. He was not injured by the examination. And he was not required to take any action as a consequence of the examination.

Marquez suffered psychological distress as a result of the Sheriff’s Department’s decision not to promote him to the position of deputy sheriff. That decision, and Marquez’s reaction to it, did not occur in connection with Marquez’s performance of his job duties.

The first of 14 defendants charged in three separate cases was arraigned on November 23, for their roles in a workers’ compensation re-training voucher fraud scheme that caused a loss to insurance carriers in excess of $22 million.

The 14 defendants are charged with a variety of counts including conspiracy, insurance fraud, capping, and receiving kickbacks.

An investigation started in January 2019 when the Riverside County DA’s Office, assisted by the California Department of Insurance and the California Bureau for Private Post-Secondary Education, started looking into suspected fraud at two for-profit vocational schools.

The fraud involved Supplemental Job Displacement Benefits (SJDB) provided by workers’ compensation insurance carriers, and was suspected at Ryon College in Riverside and Sutech School in Los Angeles.

The investigation revealed that two of the charged defendants, Oswaldo Forero, of Irvine; and Melbe Zepeda, of Bellflower, operated the two “sham” schools that were primarily funded by workers’ compensation vouchers.

These vouchers, with values ranging from $6,000 to $10,000, were intended for injured workers to be re-trained or to assist them in learning new skills to accommodate their disabilities enabling them to re-enter the workforce.

It is alleged that Forero and Zepeda employed numerous “cappers” to illegally recruit students to the two schools they operated.

These “cappers” were paid to sign up as many students as possible to attend the schools, even if the student didn’t have the requisite educational background – a high school diploma or equivalent.

The priority of the defendants was to make money using various tactics such as over-billing for laptops and tools, collecting lucrative vouchers for students that never or rarely attended the school, faking admission tests, and giving students cash for their vouchers.