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Owners of “Scofflaw” Marijuana Club Indicted for Comp Fraud

The owner and two officials of what officials call a “scofflaw” San Jose marijuana dispensary were indicted by a criminal grand jury this month on felony charges including illegal sales of marijuana, tax fraud, insurance fraud, worker’s compensation fraud, and money laundering.

The company, San Jose Organics, failed to pay over $2 million in taxes to the state and city. This, despite the fact that investigators found a paper trail showing the dispensary made approximately $10 million dollars in profit between April 2013 and July 2015. Also recovered from the San Francisco home of the owner Ben Kit Lew was $800,000 in cash. Another $400,000 was uncovered from other locations associated to the investigation.

Lew, 44, faces up to 46 years in prison on 46 felonies and one misdemeanor, if found guilty. Brian Wong, the 43-year-old manager, faces up to 23 years on 15 felonies and one misdemeanor. Ernest Ma, 28, the Secretary of the Corporation, faces a maximum of about 10 years on six felonies.

The dispensary was raided in July and the defendants were arrested. Evidence showed that the dispensary was bringing in $25,000 a day in sales.

San Jose Organics was featured in a May 2015 NBC Bay Area expose that called the club “one of the busiest medical marijuana collectives” in in the city and reported that it claims to have between 5,500 and 6,000 members. The report said city officials accused San Jose Organics of “breaking the law every day it’s open for business” and had already served it with “multiple citations,” and alleged the dispensary sold weed to buyers under age 21 in violation of city law. The TV report said the owners declined an interview through a consultant.

“People like these defendants are profiteers exploiting the medical marijuana laws,” prosecutor Edward Liang said. “They do this, while at the same time ignoring laws that every other business in California is required to follow. We would not accept this conduct in any other industry. We will continue to hold medical marijuana dispensaries to the same standards.”

Former Senator Yee Sentenced to Five Years in Comp Law Bribery Case

A federal judge sentenced former California state senator Leland Yee on Wednesday to five years in prison after he acknowledged accepting thousands of dollars in bribes. Prosecutors had recommended an eight-year sentence, saying that would reflect the extent of Yee’s crimes. Yee’s attorneys had called for no more than five years and three months behind bars, saying Yee had a history of public service and his wife was ill.

“I take full responsibility for this. I accept my crimes, I am asking for lenience. I hope you look at my entire life and not just the crimes I committed,” Yee said just before sentencing. District Court Judge Charles Breyer rejected his request. “The crimes you committed were an attack on our democratic institutions. Mr Yee, you abused that trust,” he said. “These are very serious abuses. The most significant crime was that your vote was for sale.”

Yee and his codefendants pleaded guilty in federal court in San Francisco last July. For his part, Yee, 66, acknowledged that he participated in two criminal enterprises, the Leland Yee for Mayor Campaign 2011 and the Leland Yee for Secretary of State campaign. In connection with these campaigns, Yee admitted he (1) accepted $10,000 in exchange for using his influence as a state senator to assist in the process of obtaining a grant from the California Department of Public Health, (2) conspired to extort money from individuals by suggesting he would cast favorable votes for specific legislation only if the money were paid, (3) accepted a $11,000 bribe in exchange for arranging a meeting with another state senator to discuss specific legislation, (4) conspired with others to purchase weapons in the Philippines and import them illegally into the United States, and (5) provided more than $6,000 in cash to a campaign aid knowing the aid would launder the money by arranging to convert the cash into checks made payable to Yee’s Secretary of State campaign.

The federal indictments included accusations that Yee took bribes in exchange for voting for bills that favored his contributors. One bill involved regulations for medical marijuana, a second extended the life of the California State Athletic Commission, and a third prevents pro football players on non-California teams from filing workers’ compensation claims for their injuries.

The indictment said an undercover agent told one of his associates, Keith Jackson, a former San Francisco school board president who also worked as a consultant and fundraiser for Yee, that the owner of a National Football League team was prepared to contribute $60,000 to Yee if he would support the workers’ compensation bill. Jackson accepted, after contacting Yee, who voted for the bill, the indictment said. It said the money was never paid.

The judge gave Yee 30 days to surrender to the U.S. Marshal’s Service, which will turn him over to the federal prison system. James Lassart, Yee’s lawyer, asked the judge to recommend the sentence be served at the federal prison in Taft in Kern County. Yee rushed out of the courthouse with his lawyer who said: “He’s remorseful and he’s tired of this humiliation to his family and he’s tired of what I would call this circus.”

Sheriff’s Correctional Deputy Sentenced to 120 Days for Comp Fraud

A former Santa Clara County sheriff’s correctional deputy was sentenced this week for a false workers’ compensation claim filed last year.

Mark Samuel Navarrete, 40, of San Jose, was sentenced to 120 days in county jail, but can serve the time out of custody through electronic monitoring, his defense attorney Patrick Valencia said. Navarrete was also ordered to pay about $22,880 in restitution for the workers’ compensation he had received.

Navarrete originally pleaded not guilty to a felony count of making and presenting a false or fraudulent statement in support of a workers’ compensation claim. However last month, Navarrete changed his plea to no contest.

The former deputy was injured during a softball game on July 14 while off-duty at Twin Creeks Sports Complex in Sunnyvale and later took himself to an emergency room for pain to his left bicep, according to authorities. However Navarrete underwent surgery through the county and claimed he was injured while closing a filing cabinet at work..

Navarrete’s co-worker who knew the injury took place outside the workplace informed a supervisor, which led to an investigation into the claim. Investigators obtained hospital records, text messages and video from the sports complex that recorded the game.

His lawyer reported that Navarrete now understands the mistake he made, but it was “unfortunate” that he lost his job over the matter. Navarrete had worked with the sheriff’s office for 12 years and resigned soon after his arrest. His lawyer also called the sentence “lenient” and believed the judge would have even given a lighter punishment if there were not other issues surrounding violence at the county jail which has placed this case in the spotlight.

The Navarrete case predates the investigation into the deadly Aug. 26 beating of Michael Tyree at the Main Jail, which spurred murder charges against three other correctional deputies and prompted elected officials to promise a host of reforms of the county’s jail facilities, with pointed attention at misconduct by jail staffers.

Can You Think Away Chronic Back Pain?

An eight-week group program focused on mindfulness-based stress reduction may help with short-term function and long-term pain for people with chronic low back problems, according to a new study published in the JAMA Internal Medicine and reported in Reuters Health.

“Most people would think mindfulness meditation would help stress,” said lead author Dr. Natalia Morone of the University of Pittsburgh. “They would not typically think it could actually lead to reduced pain or lead them to have less pain interference during their day to day activities.”

The researchers studied 282 older adults, with an average age of 74, in the Pittsburgh area with functional limitations due to chronic low back pain between 2011 and 2014. The participants were randomly separated into two groups. Both groups entered into an eight-week program followed by monthly sessions for an additional six months.

In the mindfulness group, participants were taught four methods of meditation, using directed breathing and mindful awareness of thoughts and sensations in sitting, walking or lying down positions. They also learned mindful stretching during the initial eight weeks. During the six months of booster sessions, participants met to meditate and discuss themes of the mindfulness program.

Those in the comparison group met for the same amount of time in groups of the same size with the same amount of “homework” and time with a facilitator, but instead focused on education based on the 10 Keys to Healthy Aging, which does not address pain. They learned about managing high blood pressure and did the same chair stretches as the mindfulness group.

The participants had monthly 15-minute phone interviews about the back pain, function, mindfulness, and doctor or hospital visits. Based on disability questionnaires, the people in the mindfulness group had improved more after eight weeks than the control group, though disability scores were again similar by the six-month point.

The mindfulness group also had more improved current and most severe pain scores at the six-month point, as reported in JAMA Internal Medicine.

“In terms of mechanism for pain reduction, the study gives us a clue as patients in the mind-body program reported more self-efficacy toward pain – they were able to better cope with their pain,” Morone told Reuters Health by email.

She and her coauthors did not compare the mindfulness program to other back pain treatments, but it should be seen as an option for some patients that does not involve medication or surgery, she said.

The authors did not report how consistently the treatments were delivered or how faithfully participants practiced outside of their sessions, which would be important information, Dr. M. Carrington Reid of Weill Cornell Medical Center in New York and coauthors wrote in a commentary alongside the paper.

But “chronic pain is one of the most common conditions encountered by health care professionals, particularly among patients 65 years and older,” and barriers often prevent treating it with medication, so studies on non-medication options like mindfulness are important, they wrote.

The Mindfulness-Based Stress Reduction Program is offered in many medical centers, communities and online.

Applicant Attorneys Encouraged to use MOVEit for IMR Documents

The Division of Workers’ Compensation encourages attorneys representing California injured workers to now submit independent medical review (IMR) applications and medical records online with MOVEit file transfer system.

MOVEit is a web-based portal that allows users to submit files securely and is the best and most reliable way to transmit medical records to MAXIMUS Federal Services, Inc., the independent medical review organization. The system also provides much better traceability than paper and fax submissions.

“We believe utilizing MOVEit for IMR applications will improve the efficiency and predictability of the IMR process,” said DWC Acting Administrative Director George Parisotto. “Attorneys will know with certainty that their applications have been received.”

Whether an applicant attorney chooses to submit a request for IMR via MOVEit or otherwise, it is very important do the following:

1) Include a copy of the complete utilization review (UR) determination with the IMR application form that was provided to you by your claims adjustor
2) Sign the IMR application form before submitting a request for IMR
3) Send the signed IMR application and the UR determination within 30 days of receiving the UR determination to the address on the form.
4) Remember to serve all parties

For further information on using MOVEit, contact IMRHelp@maximus.com.

Court of Appeal Issues Writ of Review in Another IMR Challenge

The case of Saul Zuniga v. Interactive Trucking, Inc.; SCIF involves another challenge to the constitutionality of the IMR process, asserting that the anonymity of the IMR reviewers violates due process and the IMR statute violates the guarantee of right to appellate review.

After successfully appealing an IMR determination and obtaining an order remanding the matter back to IMR for review by a different physician reviewer, Zuniga filed a discovery motion seeking the disclosure of the IMR reviewers’ identities. While the discovery motion was pending, the second IMR decision was issued authorizing additional, but not all, of the prescribed medications. Thereafter, over defendant’s objections, a trial was set on the issue of the disclosure of the IMR physicians’ identities. The Workers’ Compensation Judge issued a decision finding that he could not release the names of the IMR physicians pursuant to Labor Code section 4610.6(f).

Zuniga filed a petition for reconsideration, which was denied. He then filed a petition for writ of review in October 2014 arguing that the anonymity of the IMR reviewers violates due process and that the IMR statutes violate the guaranteed right to appellate review. SCIF filed its answer arguing: (1) The petitioner lacks standing since he did not exhaust his administrative remedies by filing an appeal of the second determination and therefore the petition for review was premature; (2) the petition failed to name the DWC, which is an indispensable party; (3) the WCJ was correct in finding that he lacked the authority to order the disclosure of the reviewing doctors; and (4) not revealing the reviewers’ identities did not deprive the petitioner of his due process rights.

The briefing in this case was completed in December 2014 and the case remained idle for over a year.

In February 2016, the petition for writ of review was granted in case Saul Zuniga v. Interactive Trucking, Inc.; SCIF California Court of Appeal, First Appellate District, Div. 2, Case No. A143290. The Court issued the following order.

“Petitioner is directed on or before February 5, 2016 to serve a copy of his petition on the Administrative Director of the Division of Workers’ Compensation, who has the option to file an informal opposition to the petition on or before February 23, 2016. The clerk of this court need not issue a formal writ in this proceeding. It appears to this court that the record provided by the parties is a complete record of the Board’s proceedings on the issues raised in the petition. Accordingly, unless a party or the Administrative Director of the Division of Workers’ Compensation serves and files an objection, in writing, within 20 days of the date of this order, the Board need not prepare a certified record in this matter. Absent further order of the court, no further briefing in this matter is contemplated. The justices will be familiar with the facts and issues, will have conferred among themselves, and will not require oral argument. If oral argument is requested, the request must be served and filed within 20 days of the date of this order. If no such request is received, the court will deem oral argument waived.”

This important case has not received much attention from the Workers’ Compensation community notwithstanding the significance of the outcome. Thus far the stakeholders have not appeared in this case as amicus.

EMPLOYERS® Names New VP of Fraud Investigations

EMPLOYERS® has named Samuel V. King as vice president, fraud investigations for EMPLOYERS. With 24 years of fraud investigations leadership experience and 10 years of law enforcement experience, King brings to EMPLOYERS his valuable expertise in the field of workers compensation fraud. This position will work under the senior vice president of claims, and will bring best-in-class thinking to fraud investigation function.

A recognized expert in the area of workers’ compensation fraud, King served as past chairman of the California Workers Compensation Institute’s (CWCI) Anti-Fraud Committee, founding member of California Department of Insurance Fraud Division Anti-Fraud Advisory Committee and former chairman of the California Department of Insurance committee on SIU training. King holds a Bachelor of Science degree in Business Management from Azusa Pacific University and is a licensed private investigator, which will add a valued contribution to the EMPLOYERS organization.

King will be based in Glendale, CA.

Earlier this month EMPLOYERS® reported operating income for the fourth quarter and full year 2015 of $34.3 million and $81.3 million, or $1.05 and $2.50 per diluted share, respectively, and announced a $50 million share repurchase program and a 50% increase in the first quarter 2016 cash dividend to $0.09 per share. Operating earnings benefited from favorable prior year reserve development of $8.5 million and $7.2 million for the quarter and full year, respectively. Combined ratio before the LPT of 93.0% and 97.1% for the quarter and full year, respectively, down 9.2 and 7.9 percentage points, respectively, year over year.

The Company commented: “We strengthened our performance throughout 2015 and we are pleased to report our best operating results in the fourth quarter and the full year since 2007. We achieved an annualized operating return on equity of 16.1% in the fourth quarter and 9.8% in the full year, representing a 9.4 and 5.1 percentage point increase in the quarter and full year, respectively, year-over-year. Our underwriting profitability, measured by the combined ratio before the LPT, improved 9.2 percentage points in the quarter and 7.9 points in the full year relative to 2014 and our adjusted book value per share increased 8% year-over-year.”

WCAB Sanctions and Suspends Another Lien Representative

Last December, the WCAB sitting en banc issued a Notice of Intention to suspend the privilege of Javier Jimenez to appear in any proceeding as a representative of any party before the Appeals Board, or any of its workers’ compensation administrative law judges (WCJs) for one hundred eighty (180) days. Notice was also given in the Notice of Intention that the Appeals Board intended to further order that any suspension continue until there is full compliance with the sanction orders described in the Notice of Intention.

The Notice claimed that over the last three years Mr. Javier Jimenez has been sanctioned numerous times for engaging in bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay while acting for lien claimants as their Labor Code section 5700 agent before the WCAB. “His misconduct has resulted in the repeated imposition of sanctions against him and his clients and has injured other parties and wasted judicial resources.”

Sanctions have been imposed for knowingly proceeding to trial without necessary evidence, repeatedly presenting meritless arguments, making a false statement of material facts in a petition presented to the Appeals Board, impugning the integrity of the WCAB and WCJs, and other willful failures to comply with statutory and regulatory obligations.

Several examples were provided in the Notice. In one case he appeared as a hearing representative on behalf of lien claimant Universal Psychiatric Medical Center (UPMC). Hearing were scheduled in that case and the lien claimant failed to offer evidence in support of its lien claim. The WCJ jointly and severally ordered IMM and UPMC to pay a $2,500.00 sanction and to pay defendant’s reasonable attorney’s fees of $3,500.00.

In another illustrative case, Mr. Jimenez represented lien claimant Joyce Altman Interpreters. The WCJ jointly and severally sanctioned Mr. Jimenez and Altman $2,500.00 for failing to present evidence showing that the lien claims were not barred by the statute of limitations, and because they “failed to provide relevant and probative evidence to support the reasonableness and necessity of the services rendered and reasonableness of the charges,” that they “knew or should have known that their insistence on trial without relevant and probative evidence is frivolous,” and that their activities and those of their hearing representatives “were egregious and frivolous.”

Other examples were provided of a similar nature. However response to the Notice Of Intention and no request for further hearing was received from Mr. Jimenez. Therefore it was ordered that the privilege of Javier Jimenez to appear in any proceeding as a representative of any party before the Appeals Board or any of its workers’ compensation administrative law judges is hereby suspended for one hundred eighty (180) days

Plumas County Safety Program Cuts Comp Costs

Plumas News reports that measures taken to improve employee safety have resulted in workers compensation cost savings for Plumas County. “We have good news that we’re saving money,” Pat Bonnett told the supervisors during their Feb. 9 meeting. “We’ve probably saved over $1.8 million in workers compensation claims.”

In 2009-10, the county paid $1.85 million in workers compensation, and by 2014-15 that number had dropped to $117,504.

Bonnett, who is the county’s safety officer, presented the information to the board with Roberta Allen, the county’s treasurer and risk management officer. Bonnett said the savings reflected the emphasis placed on employee safety.

Supervisor Lori Simpson said the numbers show that the “active safety program instilled in the county” is working.

Bonnett attributed the program’s success to the department heads’ commitment to making the workplace safe for their employees.

This report is confirmatory of longstanding industry findings. On August 29, 2001, Liberty Mutual Insurance Company released a report titled: A Majority of U.S. Businesses Report Workplace Safety Delivers a Return on Investment. The Liberty Mutual survey shows 61 percent of executives say $3 or more is saved for each $1 invested in workplace safety.

OSHA’s Office of Regulatory Analysis has stated: “our evidence suggests that companies that implement effective safety and health cans expect reductions of 20% or greater in their injury and illness rates and a return of $4 to $6 for every $1 invested…”

In its 2012 Workplace Safety Index, Liberty Mutual estimated that employers paid almost $1 billion per week for direct workers’ compensation costs for the most disabling workplace injuries and illnesses in 2010. Employers that implement effective safety and health management systems may expect to significantly reduce injuries and illnesses and reduce the costs associated with these injuries and illnesses, including workers’ compensation payments, medical expenses, and lost productivity. In addition, employers often find that process and other changes made to improve workplace safety and health may result in significant improvements to their organization’s productivity and profitability.

Study Says IMR Reviews Increased by 19%

A new CWCI study provides an updated look at California workers’ compensation independent medical review (IMR) decisions rendered in 2015 and finds that even though IMR physicians continue to uphold the vast majority of utilization review (UR) physicians’ denials or modifications of treatment, total IMR volume rose 19% last year.

The Institute’s latest analysis uses data from all 163,826 IMR determination letters issued in 2015 in response to applications submitted to the state after a utilization review (UR) physician modified or denied a requested medical service. Although state lawmakers who enacted IMR expected that the number of disputed treatment requests would decline as doctors, attorneys and others involved in the process became familiar with the types of services that would meet the evidence-based medicine standards and be approved through UR and IMR, the latest data show that after 2 years, IMR volume remains high, with 26,065 more cases in 2015 than in 2014.

CWCI’s review of the 2015 IMR decisions reveals the IMR physicians upheld the UR doctor’s modification or denial of the service 88.6% of the time, just shy of the 91% uphold rate for 2014. The mix of services reviewed by IMR physicians was also similar, with prescription drug requests accounting for half of last year’s IMR decisions, versus 48% in 2014, and the UR determination was upheld in nearly 90% of those pharmaceutical IMRs. Disputes over prescription drugs, physical therapy, durable medical equipment, injections and MRI/CT/PET scans accounted for 75% of all services that went through IMR in 2015, while surgery requests accounted for 4.2%, which was down from 4.7% in 2014. Uphold rates ranged from 80% to 90% for most services, with the exception being Evaluation and Management services – primarily requested referrals for consultations – where nearly 1/3 of the UR modifications or denials were overturned by the IMR physician.

The analysis also linked most of the disputed medical services that went through IMR to a small number of requesting physicians. The top 10% of physicians named in 2015 IMR decision letters (1,276 physicians) accounted for 85% of the disputed service requests, while the top 1% (128 providers) accounted for 46%. As in 2014, the new results also show significant geographic variation, with 34% of the IMR decision letters addressed to Los Angeles County recipients even though only 22% of all claims came from that region. On the flip side, the percentage of IMR decisions was disproportionately low in rural areas of the state, as well as in the Inland Empire, Orange County and San Diego.  

CWCI has published its complete analysis of 2015 IMR outcomes in a Spotlight Report, “Independent Medical Review Decisions: January Through December 2015.” CWCI members and subscribers can download the report and a summary Bulletin, while others can purchase a copy. at the CWCI store.