Author: WorkCompAcademy

Nolte Sheet Metal, Inc., owned in part by Ernie Nolte, fabricates air conditioning ducts.

In 2014, Cal/OSHA inspected the Company’s shop and issued citations for various violations of California Code of Regulations, title 8.

The Company filed an appeal with the Occupational Safety and Health Appeals Board (Appeals Board). In a January 29, 2016 decision, the administrative law judge (ALJ) appointed by the Appeals Board concluded the evidence supported the violations underlying the challenged citations. The ALJ also found the violations underlying four of these citations were properly classified as “serious.”

The Company filed a petition for reconsideration, which was granted. In an October 7, 2016 decision after reconsideration, the Appeals Board upheld the ALJ’s determinations.

The Company then filed a petition for a writ of administrative mandamus. In a September 8, 2017 order, the Fresno County Superior Court denied writ relief.

On appeal from the superior court’s order, the Company advances several arguments. First, the court should have exercised its independent judgment when it reviewed the Appeals Board’s decision. Second, the Company did not freely and voluntarily consent to Cal/OSHA’s inspection. Third, Cal/OSHA lost the original inspection file, which deprived the Company of due process of law. Finally, the violations underlying four of the citations were misclassified as “serious.”

The Court of Appeal affirmed the Order and rejected these arguments in the partially published decision of Nolte Sheet Metal Inc. v Occupational Safety and Health Appeals Board.

In Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 346, which involved the Agricultural Labor Relations Act, our Supreme Court held “the Legislature may accord finality to the findings of a statewide agency that are supported by substantial evidence on the record considered as a whole and are made under safeguards equivalent to those provided by the [Agricultural Labor Relations Act] for unfair labor practice proceedings, whether or not the California Constitution provides for that agency’s exercising ‘judicial power.’ ”

These safeguards include “the separation of prosecutorial from adjudicatory functions [citations], notice, written pleadings, evidentiary hearings [citations], and a requirement that orders be accompanied by findings based on the preponderance of the reported evidence [citations].” (Tex-Cal, supra, at p. 345.)

In view of Tex-Cal, the Court of Appeal concluded that the superior court properly applied the substantial evidence standard of review.

Denise Kennedy, filed a civil action against MUFG Union Bank which alleged various claims arising out of her former employment with the Bank.

She alleged that for a period of about three months, she was subject to racial discrimination and harassment because she was African-American, causing her to ultimately take disability leave due to mental stress.

While on disability leave, her position was eliminated as part of a regionwide restructuring by Union Bank. Plaintiff was informed she remained an employee while on leave and would be eligible for consideration to fill alternative positions through Union Bank’s job posting leave program once she was released back to work without restrictions or with permanent restrictions.

Plaintiff alleged that the failure to pay her severance or allow her to return to her previous position on a modified schedule constituted disability discrimination and an effective termination.

Plaintiff admitted in her deposition that in December 2015, she was determined “totally disabled” and initiated a workers’ compensation claim on that basis. She admitted that she settled her workers’ compensation claim in July 2016 and agreed to submit a voluntary resignation from employment as part of that settlement. She stated that it was her understanding that she remained an employee of Union Bank until the time of her resignation. Excerpts from her deposition including this admission were successfully used by the employer in a motion for summary judgment, which the trial court granted.

The court of appeal agreed in the unpublished case of Kennedy v. MUFG Union Bank

Defendants produced a copy of the application for compromise and release submitted to the Workers’ Compensation Appeals Board and a copy of the executed voluntary resignation dated July 2016. Clearly, this evidence was sufficient to negate any claims premised upon the existence of a termination, as it showed that plaintiff was not terminated and instead voluntarily resigned her employment with Union Bank. Absent a threshold factual showing of a termination, there can be no claim for wrongful termination and no claim that plaintiff was “terminated” due to discriminatory motives or impermissible retaliation. This showing was sufficient to shift the burden on summary judgment and required plaintiff to produce evidence to show a triable issue of material fact.

A doctor and the former owner of a Long Beach hospital was sentenced to 15 months in federal prison for taking part in a long-running health care fraud scheme where he authorized sham contracts that concealed over $30 million in illegal kickback payments to physicians who steered spinal surgeries to his hospital. The overall scheme resulted in more than $900 million in fraudulent bills being submitted, primarily to California’s worker compensation system.

Dr. Faustino Bernadett, 65, of Rolling Hills, was sentenced and also ordered him to pay a $60,000 fine on top of $1 million he has already forfeited to the United States.

Bernadett, a board-certified anesthesiologist and pain management physician who retired his license last year, pleaded guilty in August to a one-count criminal information charging him with misprision of a felony.

The kickback scheme centered on Pacific Hospital in Long Beach, which specialized in surgeries, especially spinal and orthopedic procedures.

Pacific Hospital’s owner, Michael D. Drobot, conspired with doctors, chiropractors and marketers to pay kickbacks in return for the referral of thousands of patients to Pacific Hospital for spinal surgeries and other medical services paid for primarily through the California workers’ compensation system.

In 2005, Bernadett purchased Pacific Hospital from Drobot. Under the terms of the sale, Drobot guaranteed to Bernadett that 75 spinal surgeries per month would be performed at Pacific Hospital or else Drobot’s payout would be reduced by $25,000 for each surgery below that requirement.

Bernadett, who became directly involved with the hospital’s day-to-day operations by late 2007, later learned that Drobot was making illegal kickback payments to physicians in order to cause those physicians to steer spinal surgeries to Pacific Hospital. By January 2008, Bernadett had learned that Drobot concealed the illegal kickback payments by entering into various types of sham contracts – such as management agreements, collection agreements and option agreements.

Instead of putting a halt to Drobot’s kickback scheme, Bernadett authorized the continued use of Drobot’s sham contracts to incentivize surgical referrals to his hospital. Between January 2008 and October 2010 (when Bernadett sold his interest in Pacific Hospital back to Drobot), Pacific Hospital and related entities made more than $30 million in illicit payments to kickback recipients and performed approximately 1,400 kickback-induced spinal fusion surgeries.

Twenty-four defendants have been charged in connection with the scheme, and 15 of them have been convicted, including Drobot and his son.

Drobot is serving a five-year prison sentence for conspiracy and paying illegal kickbacks, and has admitted that he orchestrated a wide-ranging fraudulent kickback scheme where paid more than $50 million in bribes to doctors to steer hundreds of millions of dollars in spinal surgeries to his hospital. Drobot currently awaits sentencing after pleading guilty to breaking additional federal laws by violating a court forfeiture order by illegally selling his luxury cars.

Researchers say common myths about low back pain could lead to more pain, ineffective care and unwarranted anxiety.

Low back pain is the world’s leading cause of disability, and it’s often associated with costly care that can sometimes be harmful, Peter O’Sullivan and colleagues write in an editorial in the British Journal of Sports Medicine.

Myths about back pain are common and can be reinforced by the media and well-meaning clinicians, the authors note.

This misinformation “can lead people to fear back pain, respond to it in unhelpful ways and drive poor healthcare,” O’Sullivan said in an email. “Myths often cause negative emotional responses such as fear, distress and loss of hope,” he added, as well as behaviors like over-protecting the back and avoiding movement, activity and work.

O’Sullivan, a specialist physiotherapist with the School of Physiotherapy and Exercise Science at Curtin University in Perth, Australia, told Reuters Health that almost daily, he comes across patients who hold unhelpful beliefs.

In their editorial, O’Sullivan and his colleagues identify 10 common myths about low back pain, and counter each of them with back pain facts that are supported by evidence.

Among the myths are the idea that low back pain will become persistent and will worsen with age, that pain is always a sign of tissue damage and requires rest, and that scans and invasive procedures are always needed to diagnose and treat low back pain.

In fact, the authors write, the evidence says persistent back pain can be scary, but it’s rarely dangerous or life-threatening and it’s unlikely to leave you in a wheelchair.

Getting older is not a cause of back pain, they add, and evidence-based treatments can help at any age. Persistent low back pain is rarely related to tissue damage and scans rarely show the cause of back pain.

Low back pain is not caused by poor posture while sitting, standing and bending, and it’s also not caused by weak core muscles. Injections, surgery and strong drugs usually aren’t effective for persistent back pain in the long term. Finding low-risk ways to control pain is key.

Dr. Houman Danesh, director of Integrative Pain Management at the Icahn School of Medicine at Mount Sinai in New York City, said it’s common in his experience, too, to find patients holding beliefs like those in the list of myths.

“I usually have to spend a portion of my office visit untangling them, the most common being patients who say they have a herniated disc from 20 years ago and have chronic back pain. That is a rare occurrence,” Danesh, who was not involved in the editorial, told Reuters Health in an email.

“It is sad and frustrating when patients take on a false identity based on a myth and lose a large part of their quality of life.”

Danesh disagreed, however, with some of the authors’ advice. For instance, there are cases when strong medications, injections or surgery can be used to treat low back pain, so that “is not entirely a myth,” he said.