Author: WorkCompAcademy

The Department of Industrial Relations’ Office of Self-Insurance Plans (OSIP) has promulgated regulations that require public self-insured employers to submit reports with the information needed to evaluate the administrative cost, workers’ compensation expenditures, solvency and performance of public self-insured employer workers’ compensation programs.

These regulations became effective on July 1 and include the addition of the following new reporting forms:

— Joint Powers Authority Self-Insurer’s Profile and Financial Summary Report (Form J-1)
— Self-Insurer’s Profile and Financial Summary Report (Form P-1)
— Aggregate Claims Information (Form AR-2 Addendum)

The reporting forms for public self-insured employers are posted online. They must be submitted with the 2019-2020 annual report, which is due on October 1, 2020 and annually thereafter.

Employers who require additional time to comply with the regulations this year should contact OSIP Chief Lyn Asio Booz at LAsioBooz@dir.ca.gov to request an extension. Deferrals of up to 60 days may be granted to employers who can demonstrate that they may not be able to comply with their reporting requirement.

Daniel Brodie Howard suffered major injuries in an automobile accident while acting within the scope of his employment with Agra Tech, Inc. Hartford was Agra Tech, Inc.’s workers’ compensation carrier. He was hospitalized and in a coma. Thus the probate court appointed his brother, David Howard as conservator of his person and estate.

A civil tort action was filed against multiple parties to recover for the injuries. Hartford filed a complaint in intervention seeking to recover the workers’ compensation benefits it had paid as a result of conservatee’s accident.

In 2012, a WCJ found conservatee to be totally and permanently disabled and awarded permanent disability, medical care for life, and attorney fees.

On October 30, 2013, conservatee, Hartford, and Toyota, one of the tort defendants, signed a mediation agreement that called for Toyota to pay a specified sum to conservatee. In 2014, the probate court signed an order approving the compromise of the disputed claim against the other driver and Toyota and directed payments from the settlement proceeds for attorney fees and expenses, to Hartford (for medical and like expenses it had paid), and conservatee (for the balance of the settlement).

Numerous disputes arose between the parties over the distribution of funds, each of which were subsequently resolved.

Then, in 2016, conservatee filed a motion in the probate court to assess attorney fees, asking the probate court to order Hartford to “reimburse Conservatee $150,934.76 in costs and $179,605.48 in attorney’s fees as Hartford’s pro rata share of Conservatee’s costs and attorney’s fees in creating the Toyota settlement.” Conservatee stated the authority for the motion was labor code sections 3856, subdivision (b), and 3860, subdivision (e), and the “common fund” doctrine.

The probate court concluded that it lacked jurisdiction to consider conservatee’s claims because the underlying civil case had been dismissed with prejudice upon conservatee’s request. The court of appeal agreed and affirmed the order in the unpublished case of Conservatorship of Howard.

Conservatee’s motion to assess attorney fees did not revive the civil action or overcome the effect of the voluntary dismissal of that action. Upon dismissal of the civil action, the probate court no longer had jurisdiction to enter any further order distributing the settlement proceeds from the civil action.

Yosemite Community College District hired contractors to complete a remodeling project at the campus that included roof repair and replacement on several buildings. Kitchell CEM was the general contractor or program manager for the project. This included developing and implementing a program-wide safety program. Western Single Ply-Nevada was the roofing subcontractor. The plaintiff Ramon Mora was its employee.

In 2015 a 2×4, without the typical accompanying 2×6, was anchored to the edge of the roof to use as scaffolding. While Mora was on the 2×4 anchor board without a safety harness, the board gave way and he fell over 20 feet off the unprotected roof edge.

Mora filed a civil action that alleged General Contractor owed him a duty of care and breached that duty by failing to develop and implement a safety program that included fall prevention and protection measures.

The trial court sustained the General Contractor’s demurrer. The order stated (1) workers’ compensation was “the sole and exclusive remedy for employees who sustain injuries while performing work in the scope of their employment”; (2) General Contractor “did not have the requisite degree of control over the property to support a claim for Premises Liability”; and (3) the negligence allegations were insufficient to state a cause of action against General Contractor. The Court of Appeal reversed in the unpublished case of Mora v Kitchell CEM.

The Privette doctrine will bar causes of action by an independent contractor’s employee against a non-negligent hirer that did not affirmatively act. A hirer can be a landowner, general contractor, or any other entity that hires an independent contractor.

Plaintiff’s complaint alleges that Roofing Subcontractor “was a subcontractor hired to perform reroofing work at the SUBJECT PREMISES.” The complaint does not state who hired Roofing Subcontractor “to perform reroofing work.” Thus, on the face of the complaint, the hirer of Roofing Subcontractor is not clearly and affirmatively shown. Consequently, at the pleading stage, the Privette doctrine cannot be a bar to the complaint because the hirer is not identified.

It is worthy of note that this opinion will likely be of limited value to this plaintiff. The identical issues will be tested again after a motion for summary judgment. Such a motion can included undisputed facts that establish the defendant as the General Contractor, and thus protected by Privette. This appeal is the result of Mora’s sixth amended complaint, and Mora has undoubtedly had difficulty establishing his case thus far.

A Beverly Hills anesthesiologist and his girlfriend, the owner of a Los Alamitos-based laboratory, are behind bars on charges of stealing about $52 million in an alleged insurance fraud scheme.

Dr. Randy Rosen, who was involved in a civil federal lawsuit involving a health care fraud scheme at a Long Beach hospital that was settled in 2017, was being held on $52 million bail along with co-defendant Liza Vismanos, who are both scheduled to be arraigned when a judge will also consider lowering their bail.

Vismanos owns the Wellness Wave surgical center in Beverly Hills and the Lotus Labs medical laboratory in Los Alamitos, according to the bail motion.

“In approximately June 2017, Rosen/Vismanos entered into a fraud scheme specifically targeting patients from addiction recovery rehabs to bill their private medical insurance carriers primarily for two types of procedures; a non-FDA approved Naltrexone implant and Cortisone injections,” according to the bail motion.

“Rosen put his patients under anesthesia for these procedures in order to bill insurance for a major medical surgery at an approximate cost of $80,000 per procedure,” according to the bail motion.

“Per Rosen’s records he performed these procedures in as little as one-minute increments with as many as 72 procedures per day. Additionally, Rosen collected blood and urine from his patients, which was processed at Lotus Labs at a cost of approximately $4,000 per day after the procedure with no known medical necessity.”

Investigators allege 18 insurance companies were billed from June 2017 to May 2019 $661,940,464 and the two received $51,060,523.

The two are also accused of using two “body-broker” groups that would “sell Rosen patients in exchange for a kickback of the insurance proceeds,” the bail motion alleges.

The “marketers” would – often pay the patients (oftentimes $500 to $2,000 per procedure) to incentivize them into returning to Rosen for multiple procedures,” the bail motion alleges.

Investigators also allege “at least 35 of Rosen’s patients involved in this scheme have passed away, many by overdose,” according to the bail motion.

Investigators also said the alleged scheme was the subject of a CBS report in July 2018 that “focused on the death of a patient,” but “despite this attention Rosen/Vismanos continued with their fraud scheme, continued paying kickbacks and patients continued to die.”

Misael Mendoza-Hernandez suffered a “non-catastrophic” injury in 2007 while working for his employer, Colosseum Athletics. State Fund was Colosseum’s workers’ compensation insurer.

In November 2008, a physician designated by State Fund injured Mendoza-Hernandez’s spine while giving him an epidural, rendering Mendoza-Hernandez “effectively quadriplegic.” As a result, he needs catheterization every four to six hours. He cannot use his hands to do this, so he needs skilled nursing care for the catheterization. He also needs rectal suppositories to be able to defecate and must rely on another person to insert the suppositories.

Mendoza-Hernandez and State Fund entered into a written stipulation that State Fund would pay for home health care for eight hours per day, seven days per week, “until such time” as the parties’ agreed medical examiner reviewed certain documents and issued a supplemental report on Mendoza-Hernandez’s home health care needs. State Fund was to “then abide by those recommendations.” State Fund was also to “restart rehab gym payments and authorizations until an AME report to [the] contrary.”

The AME his report, which recommended 24 hour home health care. State Fund did not abide by the AME recommendation, and did not pay for 24 hour home care or for the rehabilitative gym membership. Mendoza-Hernandez to engage in further litigation before the WCAB to enforce the order.

In 2014, the parties stipulated to 100 percent disability. The parties subsequently agreed on the amounts of attorney fees, penalties, and sanctions that State Fund should pay for its refusal to pay the prior order.

Mendoza-Hernandez’s filed a civil action against State Fund for a single cause of action for intentional infliction of emotional distress. State Fund demurred to the Complaint. The trial court sustained the demurrer without leave to amend. The Court of appeal affirmed the dismissal in the unpublished case of Misael Mendoza-Hernandez v State Compensation Insurance Fund.

In Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616 (Unruh), our Supreme Court created an exception to exclusive jurisdiction “where an employer’s insurance carrier intentionally commits outrageous and extreme conduct totally unnecessary to and far beyond the bounds of normal investigation and defense of a worker’s claim.”

The trial court concluded that this exception did not apply to the facts that Mendoza-Hernandez alleged. The court cited Everfield v. State Compensation Insurance Fund (1981) 115 Cal.App.3d 15 (Everfield) for the proposition that an insurer’s “mere denial of payment, even if intentional, is still within the jurisdictional purview of the workers’ compensation scheme.”

The Court of Appeal agreed with this reasoning, adding “California courts have invariably barred statutory and tort claims alleging that an insurer unreasonably avoided or delayed payment of benefits even though the insurer committed fraud and other misdeeds in the course of doing so.”