Author: WorkCompAcademy

Marivel Santos was employed by Crenshaw Manufacturing, Inc. in January 2017 as a machine operator. She was instructed by her supervisor, Jose Flores, to operate a material-forming machine utilizing a die without any protective guards or cages.

Ordinarily, Santos would have had to use both hands to operate the machine. This time, however, Flores instructed her to operate it “from the side using a bypass button.” Using the machine in this manner allowed Santos to operate the machine with her right hand, leaving her left hand free to reach into the machine to “press down the part” being cut.

On January 12, 2017, Santos was operating the machine in this fashion when her left hand was crushed underneath the die, mutilating and severely injuring it. She filed a workers’ compensation claim against Crenshaw.

She also filed a civil action for a sole cause of action against Crenshaw for violation of Labor Code 4558, which allows an action against the employer where the injury is caused by the removal of, or knowing failure to install, a point of operation guard on a power press, known as the “power press” exception to the exclusive remedy of worker’s compensation.

The machine in this case was an A3 gap frame press, manufactured in or around 1937 by Niagara Machine & Tool Works. Crenshaw purchased two Niagara A3 gap frame presses, along with other equipment, in late 2013 as part of an asset purchase from another business.

Crenshaw filed a motion for summary judgment, asserting Santos failed to meet the requirements of the power press exception, and argued that Niagara had never designed, provided, installed, or specified any particular guard or barrier to be used with the machine in any given context.

The trial court granted summary judgment in favor of the employer. However the Court of Appeal reversed in the unpublished case of Santos v Crenshaw Manufacturing.

A provision in section 4558 provides that “No liability shall arise under [section 4558] absent proof that the manufacturer designed, installed, required, or otherwise provided by specification for the attachment of the guards and conveyed knowledge of the same to the employer. Proof of conveyance of this information to the employer by the manufacturer may come from any source.”

Crenshaw argues that section 4558 requires a manufacturer to convey specific  information – in other words, to identify a particular point of operation guard.

However, the Court of Appeal noted that the case law has only established that a high degree of specificity in the manufacturer’s safety directives will suffice under section 4558. But not what is the lowest degree of specificity that would suffice?

When a defendant moves for summary judgment, ‘its declarations and evidence must either establish a complete defense to plaintiff’s action or demonstrate the absence of an essential element of plaintiff’s case. Here this standard was not met, and the summary judgment was reversed.

A report published by Politico claims that the pandemic has revealed new failings in the rickety technology that underpins public services in California, most recently leading Gov. Gavin Newsom to trumpet an erroneous decline in coronavirus infections.

The Silicon Valley state’s woes reflect a larger problem in public-sector technology that has plagued governments for years – but are coming to the fore during the nation’s coronavirus crisis.

Florida’s unemployment claims website, built by Deloitte, has faltered so badly this year that Gov. Ron DeSantis called it a “jalopy.” Other states, such as Wisconsin and New Jersey, are likewise struggling to keep pace with claims in part because they say their systems rely on decades-old programming language.

“Almost every month we are briefed on yet another incredible IT failure in state government,” said California Assemblyman David Chiu, a San Francisco Democrat. “The challenge that state government has with technology has been going on for years, if not decades.”

On top of California’s backlog of nearly 1 million unemployment claims, the state has experienced longstanding issues at the Department of Motor Vehicles – whose offices only began accepting credit card payments last year.

California’s IT problems stem in part from chronic underinvestment in new technology and mismanagement of the money it has put into upgrades. Paradoxically, California’s state services also suffer from the wealth of technological know-how in their own backyard.

The pandemic has forced various state systems into overdrive. None has been tested like the Employment Development Department, which is buckling under a tenfold increase in people filing for unemployment and having to send checks to 4.4 million residents – more than 1 in 5 workers statewide.

71 state lawmakers said in a letter to Newsom last week. The letter pointed out a litany of failures at the EDD, including taking up to six weeks to return customer service phone calls; not providing translation of documents into languages other than English; and not allowing applicants to edit their applications once submitted or upload verification documents.

A more systemic problem, lawmakers said, is the state’s overreliance on contractors who routinely come in tens of millions of dollars over budget and years behind schedule.

A billion-dollar project by Accenture to revamp the state’s accounting, budgeting and procurement systems, called Fi$Cal, has been underway for the past 15 years; it was originally envisioned to take six years and cost $138 million. Last year, Newsom increased its budget by $150 million while at the same time narrowing its scope.

EDD’s latest modernization plan has been underway since 2016 and isn’t scheduled to finish until 2027. A previous attempt by EDD’s longtime contractor, Deloitte, in 2010 ended up costing twice the original estimate and “never solved basic problems,” the lawmakers said in their letter.

“Deloitte has received at least $259 million to do work on EDD’s IT system over the years, including at least two no-bid contracts during this pandemic,” they wrote. “It’s clear that despite all of the money Deloitte has been paid, it has not successfully resolved EDD’s IT challenges or modernized its system.”

Deloitte did not respond to a request for comment this week.

Discovering the “date of injury” in a continuous trauma claim is both significant, and sometimes complicated.

It is significant since the carrier for the one year prior to the “date of injury” might not be the carrier on the last date of employment. So just using the last date of employment as the date of injury might not involve the correct carriers. Benefit rates increase on January 1 of each year. Thus the date of injury might effect the rate of benefits to be paid. And finally, the statute of limitations defense is based upon the date of injury, and the date the Application for Adjudication was filed.

A recent panel decision makes the determination of date of injury less complicated since it clarifies existing law on how to determine the date of injury in a continuous trauma claim.

Imelda Sosa submitted a claim form to her employer on June 3, 2011 for a specific injury “From shoulder to neck-sometimes whole arm.” On July 7, 2011, Sosa’s primary treating physician took applicant off work for a single day on June 13, 2011 and a single day on July 7, 2011.

After a period of medical treatment, Sosa filed an Application for Adjudication of Claim on November 7, 2012.

At trial, the parties stipulated that Sosa sustained an industrial injury during the period April 8, 1997 through December 10, 2012. However, the parties also submitted the issue of “date of injury” at trial.

The School District contended that applicant did not sustain compensable temporary disability in 2011 because applicant was paid industrial accident leave under the Education Code for a single day’s absence and would not have been entitled to temporary disability under Labor Code section 4652.

The workers’ compensation administrative law judge found that Sosa sustained a cumulative trauma injury through June 13, 2011. Reconsideration was denied in the panel decision of Sosa v Brawley Union High School District.

Labor Code section 3208.1 provides that a cumulative industrial injury occurs whenever the repetitive physically traumatic activities of an employee’s occupation cause any disability or a need for medical treatment.

Pursuant to section 5500.5, liability for an injured worker’s cumulative injury is limited to those employers who employed the employee during a period of one year immediately preceding the date of injury, as determined pursuant to Labor Code section 5412, or the last date on which the employee was employed in an occupation exposing her to the hazards of the cumulative injury, whichever occurs first. (Lab. Code, § 5500.S(a).)

The date of injury for an industrial cumulative trauma injury is defined by Labor Code section 5412, as follows: “The date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment.”

As used in Labor Code section 5412, “disability” means either compensable temporary disability or permanent disability. (Chavira v. Worker’s Comp. Appeals Bd. (1991) 235 Cal.App.3d 463 [56 Cal.Comp.Cases 631]; State Compensation Insurance Fund v. Workers’ Comp. Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998 [69 Cal.Comp.Cases 579].)

Here, applicant had knowledge of an industrial injury and suffered disability as a result of the injury on June 13, 2011. Accordingly, the WCJ correctly determined applicant’s date of injury.

A San Gabriel Valley man was sentenced to 34 months in federal prison for fraudulently submitting more than $62 million in claims to the military’s TRICARE health care benefit program for bogus compounded medications prescriptions largely generated by the payment of large referral fees to marketers.

James Chen, 51, of Monterey Park, was sentenced by United States District Judge David O. Carter, who also ordered Chen to pay $28,283,844 in restitution. Chen pleaded guilty in June 2017 to one count of health care fraud.

Chen owned Clevis Management, Inc., a Commerce-based company that did business under the name Haeoyou Pharmacy (HY). HY hired marketers to obtain prescriptions for medications that were billed to TRICARE, a health care benefit program for military members and their families. HY also operated “Healtharchy.com,” a “telemedicine” website through which individuals could seek prescriptions for medications without being examined by a physician.

Under Chen’s supervision, HY paid referral fees to outside businesses, including Mission Viejo-based Trestles RX LLC and Trestles Pain Management Specialists LLC, and to his own in-house marketers to obtain compounded medications prescriptions. The referral fees constituted more than 50 percent of the net reimbursements that HY received from TRICARE.

(As an interesting sidenote, it is worthy of note that in 2015, Mesa Pharmacy – a major lien claimant for compounded medications in California workers’ compensation cases, filed a Superior Court action against Trestles Pain Specialists LLC, John Garbino, David Fish, and Raymond Riley alleging that Trestles Pain Specialists had contracted to provide marketing services of its compounded medications to doctors.)

Chen knew that none of the prescriptions arose from a bona-fide physician-patient relationship, as required by TRICARE rules. Chen also knew that a substantial number of the prescriptions were sent to HY from marketers, not physicians, though the claim forms falsely indicated otherwise. HY never attempted to collect copayments from patients, who were selected at random and denied ever seeking the compounded medications, which were of questionable medical value. All the medications were for generic pain, scarring, stretch marks, erectile dysfunction, or “metabolic general wellness” (vitamins), according to court documents.

During 2013, Chen submitted zero claims to TRICARE for reimbursement for filling compounded medication prescriptions. In Decembr 2014, his company submitted 31 such claims to TRICARE for $81,401. During the first five months of 2015, HY submitted 2,798 such claims to TRICARE seeking a total of $62,654,938.

The claims HY submitted to TRICARE for each compounded medication prescription were astronomical compared to previous claims that HY typically submitted for reimbursement. A claim to TRICARE for a single compounded medication prescription caused TRICARE to pay HY $194,707.

Chen and his co-schemers targeted TRICARE because few, if any, insurance carriers at the time would honor reimbursement claims for similar prescriptions.

This matter was investigated by the Defense Criminal Investigative Service; the FBI; Amtrak’s Office of Inspector General; IRS Criminal Investigation, the Office of Personnel Management’s Office of Inspector General; the U.S. Department of Health and Human Services – Office of Inspector General; the U.S. Department of Labor, Employee Benefits Security Administration; and the California Department of Insurance.

This case was prosecuted by Assistant United States Attorney Mark Aveis of the Major Frauds Section.

A southern California chiropractor was sentenced to 46 months in federal prison for conspiring to defraud a labor union’s health care benefit plan by offering kickbacks to patients for attending the clinic and by submitting approximately $4.8 million in sham billings.

Mahyar David Yadidi, 38, of West Los Angeles, was also ordered him to pay $1,976,832 in restitution. In November 2019, Yadidi pleaded guilty to one count of conspiracy to commit health care fraud.

Yadidi operated Philips San Pedro Chiropractic – formerly known as Synergy Healthcare and Wellness Center – in San Pedro. From July 2016 to October 2018, Yadidi operated a scheme to defraud the International Longshore and Warehouse Union – Pacific Maritime Association (ILWU-PMA) health care benefit plan. Yadidi worked with co-conspirators Ivan Semerdjiev, 41, of Irvine, a chiropractor who worked for Yadidi, and Julian Williams, 45, of San Pedro, a personal trainer who also worked for Yadidi.

ILWU-PMA health care plan members were induced by Yadidi to visit his clinic with offers of $50 in cash for each visit, according to a one-count criminal information filed in this case. Yadidi also paid plan members to allow him to bill the plan when members did not visit his clinic.

Yadidi offered monetary incentives to Williams, Semerdjiev, and other employees, as well as to patients, to recruit additional plan members to visit his clinic. Williams induced plan members to visit the clinic by falsely informing them that they could receive personal athletic training services from him that the plan would pay for.

Once plan members either visited Yadidi’s clinic or agreed to allow him to submit claims to the plan for non-existent visits, Yadidi billed and caused his employees to bill the plan for services that were not rendered, services that were not medically necessary, and chiropractic and physical therapy services that were performed by

Williams was neither licensed nor otherwise qualified to be performing those services.

At his instruction, Yadidi’s employees falsified records, including sign-in sheets that listed the dates plan members purportedly received services from Philips Chiropractic. Yadidi instructed Semerdjiev to falsify patient files to support the clinic’s fraudulent billing. Yadidi and his co-conspirators also created false entries in the name of plan members’ relatives, knowing that the union’s health care benefit plan allowed them an additional number of covered visits as well.

Yadidi continued to operate his scheme after he was terminated as an authorized provider by the ILWU-PMA plan in August 2017, six months after it conducted an audit of his clinic.

To continue the conspiracy, Yadidi changed the name of his clinic – which previously was called “Synergy” and falsely held out another person as the clinic’s primary owner and operator, when in fact, Yadidi continued to own, operate, and financially benefit from the clinic. Yadidi continued to submit claims to the plan in the sham owner’s name.

During the conspiracy’s duration, Yadidi’s clinic submitted $4,756,284 in fraudulent claims to the ILWU-PMA plan, for which the plan paid $1,976,832.

Williams and Semerdjiev each pleaded guilty to one count of conspiracy to commit health care fraud and were sentenced to six months and one year in federal prison, respectively.