Author: WorkCompAcademy

In a federal lawsuit initially brought by thirteen plaintiffs in May 2015, lead plaintiff Etopia Evans, widow of the late Minnesota Vikings and Baltimore Ravens player Charles “Chuck” Evans, filed a federal class action against 32 NFL teams. The case was transferred from Maryland to Northern California in March 2016.

The players claimed NFL teams conspired since at least 1964 to have trainers and team doctors dole out unprescribed pills and injections, sometimes mixing them in “dangerous cocktails,” to get players back into games without warning them of the long-term side effects.

U.S. District Judge William Alsup previously dismissed most claims, including conspiracy claims, against all 32 NFL teams, leaving only claims of intentional misconduct against the Green Bay Packers, Denver Broncos and Los Angeles Chargers, three of the original 32 teams named in the case.

The two remaining of the thirteen original plaintiffs, Alphonso Carreker and Reggie Walker, argued their claims fell within a narrow “intentional harm” exception to workers compensation exclusivity laws in California, Colorado and Wisconsin.

In a final blow to the case, the federal judge in the Northern District of California rejected their arguments and struck down what remained of the case.

In a summary judgment ruling Judge Alsup found retired football players could only seek relief through workers’ compensation, because their claims against three NFL teams did not fall within narrow exceptions to the well recognized exclusive remedy limits to employer civil liability and that the plaintiffs failed to present facts showing the NFL teams intended to harm players in an egregious manner.

With respect to the California team, the court found that the “fraudulent-concealment exception is an extremely limited one. E.g., Jensen v. Amgen, Inc., 105 Cal. App. 4th 1322, 1326-27 (2003). To recover under the exception, Walker must prove that (1) the Chargers knew of his work-related injury, (2) the Chargers concealed that knowledge from him, and (3) the injury was aggravated as a result of such concealment. The exception does not apply if Walker was aware of the injury at all times.”

“In short, it is not enough, as plaintiffs suggest, to insist that the Chargers engaged in some type of fraudulent concealment. Counsel’s muddling of plaintiffs’ own theories concerning the specific alleged misconduct at issue does not substitute for actually satisfying each and every element of the fraudulent-concealment exception to exclusivity. To lose the protection of workers’ compensation exclusivity, the Chargers must have concealed knowledge of Walker’s underlying work-related injury from him and aggravated said injury as a result. On this point, plaintiffs have not shown any genuine dispute of material fact in their favor.”

“This order recognizes, as have California courts, that workers’ compensation exclusivity may bar claims that reveal egregious employer misconduct,” Alsup wrote. “But the mere culpability of such misconduct, without more, is not a basis for keeping in court a claim properly subject to the exclusive remedy provisions of workers’ compensation laws.”

Similar findings were made with respect to the Colorado and Wisconsin exclusive remedy law that governs the Denver Broncos and Green Bay Packers.

The Los Angeles County District Attorney’s Office announced that a Redondo Beach woman accused of participating in a $150 million workers’ compensation insurance fraud scheme pleaded guilty,

Deputy District Attorney Kennes Ma said forty-year-old Marissa Nelson pleaded to one felony count of conspiracy to commit insurance fraud and admitted a special allegation of taking property of a value exceeding $3.2 million in case BA455469.

The sentencing hearing for Nelson is scheduled for July 27, 2018, one year from now. This will provide prosecutors one year to see how cooperative she might be with the continuing investigation before they recommend a sentence or argue what sentence might be appropriate.

Nelson is one of more than a dozen people associated with Frontline Medical Associates who were accused in 2015 of taking part in a $150-million scam that involved unnecessary surgeries by non-surgeons, doling out kickbacks for illegal patient referrals and fraudulently billing insurance companies.

But the Los Angeles Times reports that over the 18 months that followed, a judge dismissed most of the 132 counts laid out in two indictments. The most serious charges – for aggravated mayhem, carrying a potential life sentence – were dropped for a lack of evidence.

Recently prosecutors are taking a second stab at the case after acknowledging flaws in how they presented it to a grand jury. At their request, Los Angeles County Superior Court Judge Kathleen Kennedy threw out pending charges in the two indictments against 13 defendants, except for two suspects who are fugitives.

Prosecutors immediately brought new charges against a dozen people, filing three separate criminal complaints listing 194 counts, including aggravated mayhem, money laundering, insurance fraud and unlawful patient referrals. An 82-year-old physician who was accused of overbilling insurance companies was not charged in the new complaint; prosecutors noted that he is suffering serious health issues.

Prosecutors allege that Dr. Munir Uwaydah, the orthopedic surgeon patients believed would conduct procedures, instead let a physician’s assistant perform surgeries. The scheme left nearly two dozen patients with lasting scars.

Uwaydah, the accused ringleader who prosecutors initially said had been captured in Germany, remains at large. They believe he is living in Lebanon.

Nelson was a personal assistant to orthopedic surgeon Dr. Munir Uwaydah. She is also the wife of co-defendant Peter Nelson, a physician’s assistant who never attended medical school and allegedly performed invasive and sometimes unnecessary surgeries. Her guilty plea may be a sign that prosecutors are now having some successful results, and her possible cooperation as a witness may prove to be the break they need to go forward with the remaining defendants.

Deputy District Attorneys Dayan Mathai, Catherine Chon, Karen Nishita and Kennes Ma are prosecuting the case.

The case remains under investigation by the Los Angeles County District Attorney’s Bureau of Investigation and the Organized Crime Division.

In 2016, Dane Nielsen, representing himself in both the trial and appellate courts, filed a malpractice complaint against the Northern and Central California law firm Moorad, Clark & Stewart and attorneys Adam Stewart and Albert Clark.

Nielsen alleged that he retained the law firm to represent him in a workers’ compensation claim and a Labor Code section 132a discrimination claim against the Pine Mountain Lake Association (PMLA) in 2003. Stewart and Clark were partners in the law firm. Unbeknownst to Nielsen, Clark was a member of PMLA.

The gist of his claim was that the attorneys “failed to exercise reasonable care and skill” in performing legal services for Nielsen and “failed to properly draft the appropriate pleadings concerning the Labor Code section 132a action resulting in dismissal of that action.” The complaint further alleged that the WCJ stated defendants had failed to exercise care in drafting the pleadings and had a conflict of interest in violation of rule 3-300 of the California Rules of Professional Conduct.. Thus Nielsen alleged he had lost a meritorious claim for compensation.

Defendants demurred on the bases that the complaint failed to state a cause of action and that it was barred by the statute of limitations of C.C.P.section 340.6, subdivision (a). In support of the demurrer, defendants requested judicial notice of various documents filed in the workers’ compensation case. These documents included the petition for the Labor Code section 132a claim, filed by Clark on September 23, 2003, and two substitutions of attorney for plaintiff. In the first, filed June 30, 2006, Nielsen substituted himself in place of the law firm. A month and a half later he substituted in Stephen Mackey as counsel.

Nielsen did not file an opposition to the demurrer. The trial court sustained the demurrer without leave to amend. Nielsen appealed, and the Court of Appeal sustained the dismissal in the unpublished case of Nielsen v Adam Steward et.al.

The Court of Appeal found that all of Nielsen’s claims are barred by the four-year statute of limitations of Code of Civil Procedure section 340.6, subdivision (a) because none fall within the fraud exception and no tolling provisions apply.

Here, the alleged wrongful acts or omissions were defendants’ lack of care in performing legal services, specifically in drafting the pleadings for the Labor Code section 132a claim, and failing to disclose Clark’s membership in PMLA “at the time of representation.” All of these acts or omissions involve violation of a professional obligation and thus are subject to the limitations period of section 340.6, subdivision (a). Defendants ceased representing Nielsen by June of 2006, so all the alleged wrongful acts or omissions occurred more than four years before the complaint was filed in 2016.

Section 340.6, subdivision (a) provides for tolling of the statute of limitations in four instances: “(1) The plaintiff has not sustained actual injury. [¶] (2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred. [¶] (3) The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation. [¶] (4) The plaintiff is under a legal or physical disability which restricts the plaintiff’s ability to commence legal action.”

“None of these tolling provisions apply here.”

According to a Staff Report presented at the City Council meeting on July 25, 2017, the City of Santa Monica’s workers’ compensation costs continue to grow at an accelerated pace.

In FY 2017-18 alone, the City’s contributions to the Workers’ Compensation Self-Insurance Fund increased by 50%. Further, contributions are projected to rise by 10% annually thereafter if current claims trends continue.

In response to this, the Finance Director convened a Workers’ Compensation Working Group composed of the Assistant City Manager, City Attorney, Human Resources Director, and Risk Manager for the purpose of promoting initiatives to curb the City’s growing workers’ compensation costs.

Under the guidance of the Working Group, a variety of pilot cost control projects have been put in place across the City. Examples include the “Wow, That’s Fast” Program, which provides comprehensive case management services to injured sworn personnel and post-job-offer functional capacity testing to ensure prospective employees are capable of safely carrying out essential job functions prior to placement.

The most recent idea to emerge from the Working Group involves a BBB/Risk Management Division proposal to contract with a TPA to manage the BBB’s workers’ compensation claims. The idea was intriguing to the Working Group due to the many advantages a reputable and established TPA could have over an in-house program, and it resulted in the development of a three-year pilot program proposal to determine which model is more cost-effective.

The Finance Department and Big Blue Bus (BBB) asked the Council for authorization to engage in a three-year pilot program to determine the most cost-effective model for managing workers’ compensation claims. BBB will serve as the test group for the pilot program.

As proposed, administration of BBB’s workers’ compensation claims will transfer from in-house staff in the Risk Management Division of the Finance Department to a private claims administrator. Pilot program performance will be evaluated and monitored by BBB and Finance throughout the pilot period.

In order to pursue the pilot program, staff from the Finance, BBB and Human Resources Departments solicited formal proposals from TPAs for workers’ compensation claims administration services.

Based on this process, staff recommends that the City enter into an agreement with Intercare Holdings Insurance Services, Inc. for an amount not to exceed $1,699,509 over a five-year period. In addition, staff recommends that the City amend its existing contract with TCS Risk Management Services, the City’s workers’ compensation consultant, for assistance with transitioning claims administration services to the TPA and tracking and monitoring the pilot program’s performance. The amendment will cost $113,800 and result in a new agreement amount not to exceed $326,300.

Cal/OSHA and Chevron have reached a settlement agreement for a comprehensive plan that will improve safety at the Chevron Richmond refinery and for surrounding communities.

The agreement resolves Chevron’s appeal of citations issued by Cal/OSHA on January 30, 2013, following an investigation into a fire that occurred at the Richmond refinery on August 6, 2012. Cal/OSHA cited Chevron for 17 workplace safety and health violations, including six serious and nine willful in nature.

On August 6, 2012, a large fire erupted at the refinery at about 6:15 PM. Flames were seen issuing from at least two of the refinery’s towers. Contra Costa Health Services responded by notifying residents shelter in place. BART shut down local service. Initial reports estimated that 11,000 people sought treatment at area hospitals, and later reports placed the number above 15,000 people. Six employees that were present at the scene of the fire suffered varying degrees of injury.

Cal/OSHA immediately launched an investigation into the fire and the leak repair procedures throughout the refinery, and found that Chevron did not follow the recommendations of its own inspectors and metallurgical scientists to replace the corroded pipe that ultimately ruptured and caused the fire. They also found that Chevron did not follow its own emergency shutdown procedures when the leak was identified, and did not protect its employees and employees of Brand Scaffolding who were working at the leak site. There were also violations in Chevron’s overall implementation of its own “process safety management” (PSM) procedures, required by Cal/OSHA of all refineries. Chevron appealed the Cal/OSHA citations.

In 2013, the company pleaded no contest to six charges in connection with the fire, and agreed to pay $2 million in fines and restitution. The charges were filed by the California Attorney General’s Office and the Contra Costa District Attorney’s Office, including failing to correct deficiencies in equipment and failing to require the use of certain equipment to protect employees from potential harm.

The negotiated Cal/OSHA settlement requires Chevron to institute the following extraordinary measures to ensure process safety at the Richmond refinery:

– Replace all carbon steel piping that transports corrosive liquids with chrome-alloy piping, which has better corrosion resistance, at an estimated cost of $15 million.
– Develop and implement criteria and procedures, at an estimated cost of $5 million, to monitor equipment to alert operators when equipment should be replaced.
– Provide specialized, hands-on training on incident command situational awareness and hazard recognition for all Chevron Fire Department personnel at the Richmond refinery with rank of lieutenant and above. The training will include at least three hours of instruction and focus on emergency response.
– Provide at least eight hours of in-person training on process safety management for operators at the refinery beyond the training that is already provided.
– Continue its collaboration with the United Steelworkers in order to meet the training requirements imposed by the new refinery safety regulation pending approval by the OAL.
– Donate $200,000, in addition to any monies already donated in 2016, to the Regional Occupational Program in Richmond, a job-readiness course offered by the Contra Costa County Office of Education in partnership with Chevron to help prepare students for jobs in the petrochemical and related industries.
– Pay the citation penalties originally proposed by Cal/OSHA in January 2013 ($782,700), plus an additional $227,300.

Cal/OSHA agrees to withdraw nine of the 17 violations cited. The withdrawn citations include four willful-serious category violations, three serious and two general in nature. It will amend five of the remaining eight violations cited,