Author: WorkCompAcademy

Adrian Camacho began working as a cashier at Target in 2012.

Target has a zero-tolerance policy with respect to harassment and discrimination in the workplace. Camacho complained to his supervisor and to individuals in the Human Resources Department, and also called Target’s “Anonymous Hotline,” regarding repeated verbal harassment from his coworkers at Target based on the fact that he is gay. According to Camacho, his coworkers would ridicule, mimic, and mock him, sometimes in the presence of Target customers.

Camacho alleges that rather than take corrective action in response to his complaints, Target instead retaliated against him by denying him a promotion and allowing the hostile work conditions to continue, unabated.

In August 2014, prior to resigning, Camacho filed a claim for workers’ compensation benefits, based on his assertion of workplace injuries that he suffered as a result of the harassment he endured while employed at Target. Specifically, Camacho asserted injuries related to head and neck pain, as well as digestive and psychological problems.

Camacho settled his workers’ compensation case with Target. He executed the mandatory preprinted Compromise and Release (C&R) form that is utilized in all workers’ compensation cases. Camacho and Target also executed an addendum and received $12,000 in exchange for executing the settlement document.

Camacho received a right-to-sue letter from the DFEH and then filed a civil complaint against Target in which he asserted several causes of action for discrimination based on sexual orientation, and harassment causing a hostile work environment.

Target moved for summary judgment. The trial court concluded that the C&R and Addendum executed by the parties in Camacho’s workers’ compensation case constitutes a general release of all potential civil claims that Camacho might have as a result of the harassment he experienced at Target. The court entered judgment in favor of Target and Camacho appealed. The Court of Appeal reversed in the published case of Camacho v Target.

Target relied on language in the C&R Addendum that said he released Target for the Workers’ Compensation claim “or any other claims for reimbursement, benefits, damages, or relief of whatever nature.”

The Court concluded that “After examining the language of the entire document, including the preprinted C&R and Addendum A and considering each term within the context of the others, it is clear that there is no reference in either the C&R or Addendum A to any causes of action outside the workers’ compensation system, much less to a release of such claims in “clear and nontechnical language,” as is required under Claxton v. Waters (2004) 34 Cal.4th 367.

The Court of Appeal ruled that a couple who were seriously injured while checking on a neighbor who had made a 911 call at the request of a deputy sheriff were assisting in “active law enforcement” at the time. Thus their exclusive remedy was under California Workers’ Compensation.

A Trinity County deputy sheriff phoned citizens James and Norma Gund — who do not work for the County — and asked them to go check on a neighbor who had called 911 for help likely related to inclement weather.

The Gunds unwittingly walked into a murder scene and were savagely attacked by the man who apparently had just murdered the neighbor and her boyfriend. The assailant fled.

The Gunds sued the County of Trinity and the deputy — Corporal Ron Whitman — for negligence and misrepresentation, alleging defendants created a special relationship with the Gunds and owed them a duty of care, which defendants breached by representing that the 911 call was likely weather-related and “probably no big deal” and by withholding information known to defendants suggesting a crime in progress — i.e., that the caller had whispered “help me,” that the California Highway Patrol (CHP) dispatcher refrained from calling back when the call was disconnected out of concern the caller was in danger, and that no one answered when the county dispatcher called.

Defendants filed a motion for summary judgment on the ground that plaintiffs’ exclusive remedy was workers’ compensation. The trial court adopted the defense theory and entered summary judgment and the Gunds appealed. The Court of Appeal affirmed the judgment in the published case of Gund v County of Trinity.

Where workers’ compensation is available, it is the exclusive remedy for work-related injury. (§ 3602.) Workers’ compensation is generally not available to persons “performing voluntary service for a public agency” who do not receive remuneration for the services other than meals, transportation, lodging, or reimbursement for incidental expenses. (§ 3352, subd. (a).) Section 3366 provides an exception for civilians assisting peace officers in “active law enforcement.”

Section 3366 provides that each person “engaged in the performance of active law enforcement service as part of the posse comitatus [power of the county] or power of the county [sic], and each person . . . engaged in assisting any peace officer in active law enforcement service at the request of such peace officer, is deemed to be an employee of the public entity that he or she is serving or assisting in the enforcement of the law, and is entitled to receive compensation from the public entity in accordance with the provisions of this division [workers’ compensation]. . . .”

Corporal Whitman would have been performing “active law enforcement service” if he himself had gone to the 911 caller’s home to check on her. Plaintiffs knew they were responding to a 911 call, and therefore they were assisting in active law enforcement.

“We conclude plaintiffs were engaged in assisting in active law enforcement at the deputy’s request, and their remedy was worker’s compensation under section 3366.”

State Fund implemented a comprehensive opioid-reduction strategy that took a two-pronged approach, which included: 1) early prevention in new cases and 2) reduction of chronic opioid usage in existing cases.

“The opioid-reduction plan implemented by our Chief Medical Officer, Dr. Dinesh Govindarao, and his team has been remarkably successful,” said Vern Steiner, President and CEO of State Fund. “Through this effort, we have helped to improve – and potentially save – the lives of many injured workers, while also reducing expenses in the workers’ compensation system for California businesses.”

The strategy also included elements such as a peer-to-peer physician review program, education for injured workers and treating physicians, and a functional restoration program for injured workers taking chronic, high levels of opioids. Additional results include:

– The number of patients taking high doses of opioids over the past four years has decreased from 1,458 to 186.
– 74 percent reduction in expenditures on opioids prescribed to injured workers covered by State Fund.

“Peer-to-peer education of prescribing physicians has been instrumental in the success of State Fund’s opioid-reduction program,” said Dr. Dinesh Govindarao, Chief Medical Officer of State Fund. “Not all providers have adequate training on pain management and opioid prescribing, and many patients don’t understand the impacts of their medications, which is why education about appropriate and alternative treatments, such as cognitive behavioral therapy, has been a key focus area for our program.”

State Fund will continue to focus on reducing opioids by:

– Expanding its chronic pain program to reach even more injured workers
– Adopting the Division of Workers’ Compensation guidelines, which limits initial opioid prescriptions to four days, and
– Updating its online physician training modules for treating acute and chronic pain.

State Fund’s opioid-reduction program is one way the organization fulfills its purpose to provide fairly priced workers’ compensation insurance, make workplaces safe and restore injured workers.

Anyone who is interested in more information about the State Fund program may contact Jennifer Vargen by dialing 415-263-5419.

The Riverside District Attorney’s Office has charged a QME with offices in Corona and Wildomar with seven felonies related to a workers’ compensation insurance fraud scheme.

Dr. Sanjoy Banerjee, DOB: 12-1-75, of Corona, was charged on May 29, 2018, with two counts of insurance fraud and five counts of perjury. Dr. Banerjee has since posted bail and is scheduled to be arraigned on July 7, 2018, at 8:30 a.m. in Dept. 61 at the Hall of Justice in Riverside.

Banerjee claims on his website that he is the Founder and Medical Director of Pacific Pain Care.

He graduated medical school from Imperial College, School of Medicine in London, England. Completed his Anesthesiology Residency at University of Rochester N.Y. and ACGME accredited Pain Management Fellowship Program from the University of California at Davis.

He says he is triple board bertified in Anesthesiology, Pain Medicine and Addiction Medicine.. He is also a Qualified Medical Evaluator for the State of California Workers compensation system for both his Widomar and Corona office addresses.

He also claims on his website that he holds a Clinical Faculty position for the Adventist Health Family Practice Program and is an Assistant Professor in the Department of Medicine at Loma Linda University Medical Center as well as an Assistant Clinical Professor for the Department of Medicine at U.C. Riverside School of Medicine.

An investigation conducted by the DA’s Bureau of Investigation found that from November 2014 through December 2016, Banerjee, a Wildomar- and Corona-based workers’ compensation pain management doctor, allegedly illegally self-referred workers’ compensation patients to a clinical laboratory and an office-based surgical center he owned.

Through that laboratory and surgical center, Dr. Banerjee allegedly billed more than $180,000 for urine toxicology testing and/or epidural injections.

Dr. Banerjee also reportedly signed at least five doctor’s reports declaring under penalty of perjury he had not referred patients to his own companies. The investigation revealed that Dr. Banerjee referred some of his workers’ compensation patients to his business, Rochester Imperial Surgical Center, which was located in a patient exam room inside the Pacific Pain Care office suite in Wildomar.

The case, RIF1802535 is being prosecuted by Deputy DA Kristen Allison of the DA’s Insurance Fraud Team.

The U.S. Supreme Court declined to hear the petition filed by Liberty Mutual subsidiaries for relief from changes to New York workers’ compensation law that the company says may cost carriers as much as one billion dollars.

Liberty argues in its Petition for Writ of Certiorari filed in the high court this February, that the State of New York has operated a special workers’ compensation insurance fund for cases that reopen after being closed for a statutorily defined period, with the goal of protecting employers and their insurance carriers from bearing the costs of unforeseeable changes in the status of beneficiaries’ work-related medical conditions.

For decades, Section 25-a of the New York Workers’ Compensation Law (“WCL”) has required employers to support the fund through annual assessments and assigned the fund exclusive financial liability for reopened cases.

Correspondingly, the WCL exempted employers from the duty to obtain insurance to cover claims meeting Section 25-a’s prerequisites, and insurance carriers’ state-approved workers’ compensation policies defined the scope of coverage accordingly: They did not cover Section 25-a cases.

Likewise, Liberty Mutual claims the state-approved premiums that employers paid carriers for workers’ compensation insurance did not account for potential liability in Section 25-a cases, nor did the amount of loss reserves carriers maintained under state insurance law and generally accepted actuarial principles.

In 2013 the New York Legislature amended the WCL, closing the fund to cases reopened in 2014 or later.

As a result, carriers became liable for future reopened cases, regardless of whether the cases arose under a future workers’ compensation insurance policy or a preexisting one.

According to the legislative history, this amendment was intended to save New York businesses hundreds of millions of dollars in assessments per year by eliminating what the Legislature perceived to be a double charge for Section 25-a claims: once in the form of assessments paid to the fund, and once in the form of premiums paid to carriers – who, in the State’s view, received a “windfall,” since they would not incur liability for Section 25-a cases.

But Liberty Mutual says that rationale was obviously wrong. “It was clear then and it is undisputed now that carriers’ premiums were not computed to compensate them, and did not compensate them, for Section 25-a liability”.

Instead, Liberty says the real effect of the amendment is to impose on carriers a new liability for cases they had specifically excluded from their preexisting state-approved policies and that they had not been paid to cover.

According to the state-designated entity responsible for computing workers’ compensation costs, the amendment’s closure of the fund to future reopened cases under preexisting policies will inflict on carriers a staggering “unfunded liability” of over $1 billion.

The New York Court of Appeals rejected the Liberty Mutual subsidiary challenges to the amendment under the Contracts, Due Process, and Takings Clauses of the U.S. Constitution.

Amicus briefs were filed in the U.S. Supreme Court case by the Property Casualty Insurance Association and the Washington Legal Foundation.

Nonetheless, the U.S. Supreme Court declined to issue a Writ of Certiorari. They will not look into the matter or issue a ruling on the merits, which means the lower court holding applies. Not a good day for New York workers’ compensation insurance carriers.