Author: WorkCompAcademy

A patient intake coordinator for an addiction treatment facility in Orange County was just arrested on a federal grand jury indictment alleging he conspired to pay $37,000 in illegal kickbacks to so-called “body brokers” in exchange for finding him new patients.

Luis Guerrero, 53, of Santa Ana, was arrested. He is scheduled for arraignment in the United States District Court in Santa Ana. Guerrero is charged with one count of conspiracy and three counts of offering or paying illegal remunerations for referrals to the clinical treatment facility that employed him.

According to the indictment that a grand jury returned on May 22, Guerrero sought the services of two body brokers in referring patients to his employer’s Orange County-based addiction treatment facility, which treated patient populations that received health care benefits through health insurers.

Guerrero allegedly then negotiated kickback payments to the body brokers on behalf of the facility and arranged for the body brokers to receive thousands of dollars per patient in illegal kickbacks. The indictment alleges that these kickbacks were intended as compensation to the brokers for referring patients and to induce them to continue referring patients so Guerrero could meet a monthly patient intake quota – a condition of his employment with the facility.

Guerrero also assisted the body brokers in paying thousands of dollars directly to the patients, as a further kickback to compensate the patients for allowing the facility to bill their insurance providers for treatment, the indictment alleges. For example, during a call with a body broker over an encrypted messaging service, Guerrero arranged for a patient to receive a $5,000 electronic payment and agreed to assure the patient that “we’ll do something to put money in her hands before she leaves or before she arrives [home],” according to the indictment.

In October 2020, Guerrero allegedly negotiated payment of $37,000 in kickbacks to the body brokers in exchange for their referral of five patients over the previous two months, leading to a $30,000 partial payment to the body brokers later that month.

An indictment is merely an allegation, and the defendant is presumed innocent unless and until proven guilty beyond a reasonable doubt in a court of law.

If convicted of all charges, Guerrero faces a statutory maximum sentence of 35 years in federal prison.

The FBI is investigating this matter. Assistant United States Attorneys Benjamin R. Barron and Nandor Kiss of the Santa Ana Branch Office are prosecuting this case.

At the outset of the COVID-19 pandemic, and for some time thereafter, many businesses were forced to curtail their operations or close entirely. Some of these businesses sought coverage for their financial losses from their commercial property insurers under conventional first-party “all risk” or “open peril” insurance policies.These policies generally predicate coverage on “direct physical loss or damage” to the insured property or nearby property.

State and federal courts across the country have considered whether conventional property insurance policies provide coverage for pandemic-related losses, including whether the COVID-19 virus satisfies the threshold requirement of direct physical loss or damage to property. California courts have reached different conclusions on this issue,

The question arises in the context of a civil lawsuit filed by Another Planet Entertainment, LLC against its property insurer, Vigilant Insurance Company.

Another Planet operates venues for live entertainment. It suffered pandemic-related business losses when its venues closed, and Vigilant denied Another Planet’s subsequent claim for insurance coverage. Another Planet filed suit in federal district court, alleging that the actual or potential presence of the COVID-19 virus at its venues or nearby properties caused direct physical loss or damage to property and triggered coverage under its insurance policy.

The district court granted Vigilant’s motion to dismiss for failure to state a claim, and Another Planet appealed. According to the Ninth Circuit, the issue on appeal “is whether [Another Planet’s] allegations, if taken as true, were sufficient to show ‘direct physical loss or damage to property’ as defined by California law.” Because the Ninth Circuit concluded that resolution of this question of California law could determine the outcome of the case pending before it, the Ninth Circuit certified the question to the California Supreme Court.

The California Supreme Court concluded that “consistent with the vast majority of courts nationwide, that allegations of the actual or potential presence of COVID-19 on an insured’s premises do not, without more, establish direct physical loss or damage to property within the meaning of a commercial property insurance policy” in the published case of Another Planet Entertainment, LLC v. Vigilant Insurance Co -S277893 (May 2023).

Under California law, direct physical loss or damage to property requires a distinct, demonstrable, physical alteration to property. The physical alteration need not be visible to the naked eye, nor must it be structural, but it must result in some injury to or impairment of the property as property.

“The factual allegations of Another Planet’s complaint, which we accept as true for purposes of this proceeding, do not satisfy this standard. While Another Planet alleges that the COVID-19 virus alters property by bonding or interacting with it on a microscopic level, Another Planet does not allege that any such alteration results in injury to or impairment of the property itself. Its relevant physical characteristics are unaffected by the presence of the COVID-19 virus.”

“In rare situations, a property may suffer direct physical loss where it is not damaged in a conventional sense, including where a chemical contaminant or noxious odor infiltrates the property and renders it effectively unusable or uninhabitable. In such a case, the contaminant or odor may cause direct physical loss, but only where the source of the property’s unusability or uninhabitability is sufficiently connected to the property itself. This situation may arise when the effect of the contaminant or odor is so lasting and persistent that the risk of harm is inextricably linked or connected to the property.”

“While we conclude Another Planet’s allegations are insufficient, and it appears that such allegations represent the most common allegations in support of pandemic-related property insurance coverage, we cannot and do not in this proceeding determine that the COVID-19 virus can never cause direct physical loss or damage to property. Our contemplation of the virus and the affected property is necessarily limited by Another Planet’s factual allegations. ”

David A. Stallworth was an American professional basketball player. He played in the National Basketball Association (NBA) for eight seasons and was a member of the New York Knicks’ 1969-70 championship-winning team.

He filed an Application for Adjudication of Claim for an alleged CT injury to multiple areas while employed as a professional athlete by the Phoenix Suns, the Washington Capitols/Bullets/Wizards, and the New York Knicks, from July 1, 1965 to July 1, 1975. This Application was filed on September 6, 2013. However, he died during the course of litigation on March 16, 2017.

The parties proceeded to trial on November 29, 2018, and framed for decision issues including personal and subject matter jurisdiction, injury arising out of and in the course of employment (AOE/COE), and the running of the statute of limitations under Labor Code2 section 5405. The WCJ heard the testimony of applicant’s spouse and received other evidence including the deposition transcript of David Stallworth taken before he died. The case was submitted, and then further documentation was received,

Ultimately on May 30, 2019, the WCJ issued the F&O finding that “applicant’s contracts were entered into outside of the State of California.” and also found that “California does not have a legitimate and substantial interest in applicant’s claim to compel defendant to adjudicate the claim under the laws of California.”

The Opinion on Decision addressed the issue of personal jurisdiction over the defendants by explaining that “all teams involved have purposefully appeared in California by traveling to the state to participate in league games as well as scheduling future games in California.” The WCJ thus found personal jurisdiction over the party defendants.

Turning to the issue of subject matter jurisdiction, the Opinion on Decision observed that applicant’s spouse testified at trial that the applicant told her in 1995 that he had signed a contract in 1965 at his mother’s house in California. Applicant’s spouse further testified that applicant was in California to appear on the Glen Campbell show, and that he related to her that he signed the contract before making his appearance. However, applicant’s deposition testimony, taken prior to his passing, was that he had signed only two contracts over the course of his career, and that his contracts were signed in New York or Maryland.

The WCAB granted reconsideration to provide an opportunity to further study the legal and factual issues. Having completed it’s review, the WCAB issued a Decision After Reconsideration affirming the Findings and Order, issued on May 30, 2019 in the panel decision of Stallworth v Washington Capitols, Washington Bullets et., al, – ADJ9082985; ADJ10467720; ADJ10467734; ADJ10467683 (May 2024).

On reconsideration Applicant asserts that the testimony of applicant’s spouse is the more credible and supports a finding of contract formation in California in 1969 or 1970. Applicant also contends that irrespective of contract formation, subject matter jurisdiction is established by the fact that applicant sustained two heart attacks while playing in California, resulting in his hospitalization and missing the following two seasons.

Subject matter jurisdiction has been described as “the power of the court over a cause of action or to act in a particular way.” (Greener v. Workers Comp. Appeals Bd. (1993) 6 Cal.4th 1028 [58 Cal.Comp.Cases 793, 795].) Pursuant to Labor Code sections 3600.5(a) and 5305, a hiring in California provides this state with sufficient connection to the employment to support adjudication of a claim of industrial injury before the WCAB. (Alaska Packers Assn. v. Industrial Acc. Com. (Palma) (1934) 1 Cal.2d 250, affd. (1935) 294 U.S. 532 (Palma); Bowen v. Workers’ Comp. Appeals Bd. (1999) 73 Cal.App.4th 15, 27 [64 Cal.Comp.Cases 745] [‘an employee who is a professional athlete residing in California, such as Bowen, who signs a player’s contract in California furnished to the athlete here by an out-of-state team, is entitled to benefits under the act for injuries received while playing out of state under the contract’]; Johnson, supra, 221 Cal.App.4th at p. 1126].)

Here, the WCJ has identified two competing inferences regarding contract formation that may be drawn from the evidentiary record. Applicant’s Petition asserts the WCJ erred in weighing the evidence because applicant was not competent to testify at deposition. However, the WCJ’s Report identifies and addresses each of applicant’s contentions, offering specific excerpts of the transcript to provide context to the assertions contained in applicant’s Petition. The WCJ concludes that a careful review of the deposition testimony establishes that applicant was able to testify competently and respond to the questions posed.

The Report also notes that applicant offered no objection to moving ahead with testimony on the grounds of competency at the time the deposition was taken, and that applicant was represented by present counsel during the entirety of the deposition. In fact, applicant’s counsel interposed his own examination questions during the deposition. Nor was any objection to the admissibility or the veracity of the deposition testimony offered at the time the transcript was offered into evidence at trial.

In addition to the WCJ’s reasoning, the WCAB panel also note that the record is silent as to the actual contracts in question. Nor does the record establish the nature, number, or character of the contracts entered into, the parties thereto, or other evidence that would speak to the formation of a California contract of hire.

The WCAB said “we discern no evidence of considerable substantiality that would warrant disturbing the WCJ’s determinations as to the credibility of the witnesses or the relative weight of the evidence. Accordingly, we decline to disturb the WCJ’s determination that ‘applicant’s contracts were entered into outside of the State of California.’ “

In Federal Insurance Co. v. Workers’ Comp. Appeals Bd. (Johnson) (2013) 221 Cal.App.4th 1126 [78 Cal.Comp.Cases 1257] the court noted that Johnson played but one game in California out of 34 games played during the 2003 season, and that “a single basketball game played by a professional player does not create a legitimate interest in injury that cannot be traced factually to one game.” (Id. at p. 1130.)

Here, applicant avers that he played two games in California during which he sustained a cardiac infarction, and that the quality and severity of those instances were sufficient to warrant the Appeals Board’s exercise of subject matter jurisdiction over the claimed injury.

However, as the WCJ explains in his report, “Johnson involves a two-part test in determining if California has a legitimate interest in adjudicating an applicant’s claim of cumulative trauma where the cumulative trauma injury is the only connection with the State. This test considered the qualitative as well as quantitative nature of applicant’s exposure.”

The WCAB panel said it agrees with the WCJ’s analysis and conclusion that the evidentiary record does not establish, to a preponderance of the evidence, that the games applicant played in California were sufficient, under either a quantitative or qualitative analysis, to support the exercise of California’s subject matter jurisdiction over the claimed injury.

A Los Angeles jury awarded $58,358,431 to a Palmdale train yard worker who slipped and fell on top of a train while performing electrical repairs at the defendant Kinkisharyo’s International, LLC Palmdale train manufacturing yard.

The action (Case No. MC027686) arises from a February 2, 2016 incident whereby Plaintiff Pablo Scipione, now 46, was performing electrical work on the premises of a business owned, managed and/or operated by Defendant Kinkisharyo International, LLC, and identified as the Train Factory. Plaintiff alleges slipping off the wet roof of a train, and fell, thereby causing injuries. Plaintiff filed a complaint on January 25, 2018 for negligence. On March 20, 2018, Plaintiff filed a first amended complaint for negligence.

According to the lawsuit, the Plaintiff was working as an independent contractor for Altech Services when he was called into work at 2:00 AM and told by his supervisor that the repairs had to be completed by 5:00 AM. After taking only a few steps, he slipped and suffered a micro-fracture in his left foot.

Following the incident, the Plaintiff went back to work the next day and worked full-time for nearly a year and a half. Two months after his fall, he visited a foot doctor for the first time and received surgery. After his foot surgery, the Plaintiff was diagnosed with Complex Regional Pain Syndrome, that he claimed was a debilitating disease that forced him out of work.

According to the lawsuit, Kinkisharyo was responsible for ensuring every employee’s safety. However, the defendant required a far too demanding pace of work, showing indifference to the workers’ safety and proper safety protocols.

According to the allegations of the complaint, the defendant’s negligent attitude toward worker safety and unreasonable timeline to complete the repairs caused the Plaintiff’s injuries.

“An injury this severe was bound to happen,” said PARRIS Law Firm partner Khail A. Parris. “Employees frequently complained to supervisors that the station was poorly lit, and yet nothing was done to ensure a safe working environment,” Parris added.

Throughout the three-phase trial, Kinkisharyo disputed liability at every turn. During the first phase, the defense argued that the Plaintiff was its employee and that he could only seek recovery for his injuries through the workers’ compensation system. The jury unanimously rejected that defense.

During the second phase, the defense disputed how the fall happened, disputed that the Plaintiff fractured his foot, disputed the CRPS diagnoses, and disputed the nature and extent of every category of the Plaintiff’s damages. The jury found in favor of the Plaintiff and awarded compensatory damages of $54,158,431.00.

The third phase focused on punitive damages, where the jury was to determine an award large enough that would punish Kinkisharyo and deter it from future unsafe practices. As a result, the jury awarded the Plaintiff $4,200,000 in punitive damages.

According to the Parris lawfirm  the Plaintiff made multiple offers to settle. In March 2020, Plaintiff offered to settle for $8,000,000. In July 2020, Plaintiff made another statutory offer for $5,000,000. In March 2022, Plaintiff made a final offer to settle for $3,000,000. The defendant rejected them all. As a result, pre-judgment interest alone will add well over $20,000,000 to the judgment amount.

Ronald Hittle was an at-will employee of the City of Stockton and served as the City’s Fire Chief from 2005 through 2011. Hittle sued the City, former City Manager Robert Deis, and former Deputy City Manager Laurie Montes claiming that his termination was in fact the result of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 and California’s Fair Employment and Housing Act. Hittle alleged that Deis and Montes terminated his employment as Fire Chief “based upon his religion” and, specifically, his attendance at a religious leadership event.

Defendants moved for summary judgment seeking dismissal of all of Hittle’s claims. Hittle subsequently cross-moved for partial summary judgment as to his federal and state religious discrimination claims on April 1, 2021. On March 1, 2022, the district court denied Hittle’s motion and granted Defendants’ motion as to all of Hittle’s claims. The 9th Circuit Court of Appeals affirmed in the published case of Hittle v City of Stockton 76 F. 4th 877 (August 2023).

Hittle filed a petition for panel rehearing and rehearing en banc.The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. On May 17, 2024 the panel filed (1) an order amending the opinion filed on August 4, 2023, and denying a petition for panel rehearing and rehearing en banc; and (2) an amended opinion affirming the district court’s summary judgment in favor of defendants.

Dissenting from the denial of rehearing en banc, Judge Callahan, joined by Judge VanDyke, wrote that she joined her dissenting colleagues’ concern that the panel’s opinion fails to follow the Supreme Court’s directive prohibiting discrimination based on religion. She also feared that the panel’s opinion would be read to foreclose claims of discrimination for all protected classes because it gives only lip service to the Supreme Court’s directive that, on summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party.

Dissenting from the denial of rehearing en banc, Judge Ikuta, joined by Judges Callahan and R. Nelson, wrote that the panel’s opinion is in tension with other Ninth Circuit Title VII cases, which have held that, as a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer’s motion for summary judgment.

Dissenting from the denial of rehearing en banc, Judge VanDyke, joined by Judge Callahan as to Parts I, II, III, and IV(A), wrote that Hittle produced ample evidence of the City’s intent to discriminate, and that was enough to at least survive summary judgment. Judge VanDyke wrote that the panel abdicated its responsibility to read the record in the light most favorable to Hittle, allowed employers to escape liability for repeating discriminatory remarks simply by hiding behind those who say them first, and mangled Title VII’s “motivating factor” analysis. Judge VanDyke also wrote that, in his view, the alternative reasons offered by the City were not legitimate or nondiscriminatory, but are instead further evidence of the City’s discriminatory intent and rest on a misunderstanding of its obligations under the Establishment Clause based on the now-discredited endorsement test.

Judge Lawrence James Christopher VanDyke concluded the dissent with Part IV(B) and V, without support of his colleagues.

In part IV(B) he wrote in part: “Now, the panel responds to these significant errors by attempting to paper over them in its amended opinion, all while reaching the same incorrect result it reached before. Its amendments scrub any reference to the term ‘hostility’ from the opinion and substitute in the term ‘discriminatory animus.’ Tellingly, it also recharacterizes the investigator’s focus on religion, which it previously referred to as the ‘gravamen’ of the report, as now nothing more than an ‘aspect’ of that document. It’s worth making a few observations about the panel’s supposed fixes.”

He goes on to say in IV(B) “The panel sneaks this change into its opinion alongside its other clarifying amendments, but this move is obviously much more than a mere clarification. It’s an about-face on a key issue of fact, and in the absence of the more demanding ‘hostility’ standard of disparate treatment liability, it is an about-face that is critically necessary to maintain the current disposition in favor of the City. After all, if (1) religion was the gravamen of the report, (2) the decision to fire Hittle was based on the report, and (3) all that Hittle is required to show was that he was ‘intentionally treat[ed] …. worse because of’ religion, Bostock, 590 U.S. at 658, then the religious ‘gravamen’ of the report is a dispositive factual finding in favor of Hittle. The panel provides no justification for its convenient epiphany regarding the proper reading of the report, and one could be forgiven for concluding the move is results oriented. “

In part V he wrote: “This is not the first time this court has refused to rehear a case in which a government employer has sacrificed its employees’ religious rights in an ill-advised effort to satisfy the supposed requirements of the thoroughly repudiated endorsement test. See Kennedy, 4 F.4th at 911. And given our court’s refusal to address this mistake en banc, it likely will not be the last. In this latest effort, Title VII has now become collateral damage in our crusade against ‘acting Christian’ in public workplaces. I shudder to think about what area of caselaw we might distort next. Even though the ‘ghoul’ of the endorsement test has now been ‘repeatedly killed and buried,’ Lamb’s Chapel, 508 U.S. at 398 (Scalia, J., concurring in the judgment), one could be forgiven for concluding that the reports of its death are greatly exaggerated – at least out here on the Left Coast.”