Author: WorkCompAcademy

Several new laws affect workplace safety, including a package of bills that took effect June 9, 2016.

AB 1785 reaffirms the general ban on using wireless electronic devices while driving, but amends existing law to authorize drivers to use their hand to activate or deactivate a feature or function of the device with a single swipe or tap, as long as the device is mounted so as not to hinder the driver’s view of the road.

Despite the steady expansion of legislative prohibitions on the use of wireless telephones and electronic wireless communications devices while driving, and the clear dangers of distracted driving, in 2014, the California Court of Appeals for the 5th District ruled that the existing ban only prohibits a driver from holding a wireless telephone while conversing on it. In making its ruling, the court found that the legislative intent in enacting those prohibitions was merely focused on prohibiting a wireless telephone only while carrying on a conversation, not while using it for any other purpose. For that reason, law enforcement agencies find it difficult, if not practicably impossible to enforce the prohibition, as the scope of a mobile device’s functions and its contributions to distracted driving go far beyond simply making and receiving telephone calls.

The new law bans all handheld use of wireless electronic communication devices by the driver of a vehicle during its operation, without reference to the purpose of that use. An exception is provided for windshield-, dashboard-, and center console-mounted devices when the driver can activate or deactivate the feature or function he or she is using with a single swipe or tap and the placement of the mounted device does not hinder the driver’s view of the road. As such, drivers can still engage with their phones in the relatively simple ways that are most similar to other sources of distraction that society has long accepted, such as changing the channel on a car radio.

Four bills (SB-5, SB-7 and AB-5, AB-7) were signed earlier this year that extend the ban on workplace smoking. These rules took effect June 9, 2016.

Specifically AB 7 removes many (but not all) exemptions in existing law that allow tobacco smoking in certain indoor workplaces and expands the prohibition on smoking in a place of employment to include owner-operated businesses. It establishes “smoke-free laws,” which prohibit the smoking of tobacco products in various places, including, but not limited to, school campuses, public buildings, places of employment, apartment buildings, day care facilities, retail food facilities, health facilities, and vehicles when minors are present.

AB 7 prohibits employers from knowingly or intentionally permitting the smoking of tobacco products in an enclosed space at a place of employment. It defines “enclosed space” as including lobbies, lounges, waiting areas, elevators, stairwells, and restrooms that are a structural part of the building and not specifically exempt. It extends the workplace smoking prohibition to include owner-operated businesses in which the owner-operator is the only worker and there are no employees, independent contractors, or volunteers. There are no exemptions for employers of any size.

SB 1167 requires Cal/OSHA to propose a heat-illness and injury prevention standard for indoor workers by Jan. 1, 2019. SB 1167 does not specify what provisions will be included in the new rule or what types of workplaces will be covered – potentially, the new rule could include all indoor workplaces. The law is a result of litigation on this issue.

A recent Occupational Safety and Health Appeals Board (Appeals Board) decision affirms the responsibility of employers to ensure indoor heat illness is addressed through their IIPP. The case stemmed from a 2012 serious citation issued to Tri-State Staffing and warehouse operator National Distribution Center for the heat illness suffered by an employee who was working inside a metal freight container with a temperature of over 100 degrees. DOSH penalized both companies for failing to implement an effective IIPP and both companies appealed the citation winning their case before an administrative law judge (ALJ).

In March 2015, DOSH appealed that decision to the Appeals Board stating that the employers had failed to effectively correct the indoor hazard and had not trained employees on indoor heat exposure. In November 2015, the ALJ’s decision was overturned by the Appeals Board reinforcing the responsibility that employers have to protect the health and safety of their workers, including those working indoors.

A new California Workers’ Compensation Institute (CWCI) study takes a detailed look at cumulative trauma (CT) claims in the California workers’ compensation system, identifies characteristics that differentiate CT claims from non-CT claims, and finds a strong association between attorney involvement and regional variation in the Los Angeles Basin and the high cost of CT claims.

Cumulative traumas are physical or mental injuries that arise over time from repetitive stress, motion, or exposures, rather than from a specific event or accident. Earlier this year, the Workers’ Compensation Insurance Rating Bureau reported that CT claims as a percentage of California workers’ compensation lost time cases had more than doubled over the past decade, climbing to about 18 percent of all indemnity cases in 2015. Because CT claims have become a significant cost driver in the system, CWCI initiated a study to gain a better understanding of where these claims come from, identify characteristics and factors contributing to the rapid growth in CT claims, and to compare average medical and indemnity benefits for CT and non-CT claims.

Using data from its Industry Research Information System (IRIS) database on 41,000 CT claims and 608,000 non-CT claims that received California workers’ comp benefits between 2005 and 2013, the Institute compared the claim characteristics of CT claims to those of non-CT claims, including the workers’ average age, gender, earnings, and job tenure; the mix of claims by employer premium, industry and region; the type and nature of injury; notification lag times; level of attorney involvement; presence of indemnity payments; presence of a compensability dispute; and whether or not the injured worker had filed any additional claims.

Among the key results, the study found that CT cases were far more likely to have come from the Los Angeles Basin; were most prevalent in the manufacturing sector; had a higher proportion of claims involving multiple body parts and mental disorders; had twice the attorney involvement rate of non-CT claims and 53 percent higher average claim costs; and workers claiming CT injuries were 10 times more likely to have claimed other injuries against the same employer.

Overall, nearly 56 percent of all CT claims in the study population were filed in the Los Angeles County/Inland Empire/Orange County region compared to 36.5 percent of non-CT claims.

Limiting the analysis to lost-time cases, the study noted that 91 percent of the CT claims involved an attorney, which was twice the attorney involvement rate for non-CT claims; and while CT claims appeared to have higher medical costs than non-CT claims, that difference disappeared when attorney involvement and region were factored into the equation. This result confirms a strong association between the higher costs of CT claims in the study sample and the high levels of attorney involvement and the regional variation in the L.A. Basin.

CWCI’s analysis of cumulative trauma claims has been published in a Research Note which is available from the Institute’s online store and can be downloaded by CWCI members and subscribers who log in to the Research section of the website.

A California-based state court granted the class certification to almost 21,000 Apple employees currently and formerly employed by the Cupertino-based company in July 2014. The lawsuit was first filed in 2011 by four Apple employees in San Diego. They alleged that the company failed to give them meal and rest breaks, and didn’t pay them in a timely manner, among other complaints.

In California, the law states that employers are required to provide lunch breaks and rest breaks to employees with the length of each break to be determined according to the employee’s number of work hours. It states that for the first five hours at work, an employee should get 30-minute lunch breaks. The next four hours at work should earn him around a 10-minute rest break. For those working on six to ten hour shifts, they should be provided with two rest breaks.

Now Apple has been ordered to cut a $2 million check for denying some of its retail workers meal breaks after the first half of the bifurcated trial.

The class action, officiated by Judge Eddie C. Sturgeon in San Diego Superior Court, is brought by plaintiffs Brandon Felcze, Ryan Goldman, Ramsey Hawkins, and Joseph Lane Carco, all former non-exempt employees of Apple. According to the suit (Fourth Amended Complaint) plaintiffs never waived their right to a meal period and every employee is required to clock-in and clock-out during each meal period – meaning that “Defendents’ meal period violations can be ascertained.”

The complaint also alleges that Apple “systematically failed to timely pay its employees upon separation of their employment.” One of the four plaintiffs says his employment was terminated January 11, 2011 but did not receive his final paycheck until February 7, 2011. Another plaintiff accuses Apple of paying an “inadequate amount of waiting time penalties.”

According to the California labor code, if you are fired, laid off, or otherwise involuntarily separated from your job, you are entitled to your final paycheck that day (i.e., you must be paid immediately on your last day of work.). Your employer must pay you within 72 hours if you quit your job and give less than 72 hours’ notice. If you give your employer at least 72 hours’ notice, you must be paid immediately on your last day of work. And your final paycheck must include all of your accrued, unused vacation time.

Jeffrey Hogue, one of the attorneys who represented the class action, said the $2 million verdict came down last Friday — but Apple could owe more money.The second half of the case is expected to conclude next week, Hogue told CNNMoney.

It’s unclear how much of the $2 million will go to the workers. If divided evenly, it would be just $95 per employee, but it’s likely some of the money will go toward attorney fees.

The complaint says Apple’s culture of secrecy keeps employees from talking about the company’s poor working conditions. “If [employees] so much as discuss the various labor policies, they run the risk of being fired, sued or disciplined,” the complaint reads.

Apple wins a few, loses a few…

Apple was sued in a similar lawsuit this year by two former Apple Store employees from New York and Los Angeles. In all suits, plaintiffs claimed they were owed pay for time spent in security checks having their bags searched but US District Judge William Alsup found that Apple only required employees who brought personal bags and devices to the store to undergo a check; employees could avoid the security screening by not bringing their own bags or personal devices. Amanda Frlekin, et al v. Apple, case number 3:2013cv03451.

Apple, along with other tech giants, settled an anti-poaching suit that wound up paying almost 65,000 workers affected by the poaching scheme an average $5,770 each. According to Fortune, the revised arrangement (September 2015) provides “$40,822,311.75 (or 9.8%) in attorney fees plus additional expenses to the law firms in the case.”

Pursuant to Labor Code section 5307.1(g)(2), the Administrative Director of the Division of Workers’ Compensation ordered that the Durable Medical Equipment, Prosthetics, Orthotics, Supplies portion of the Official Medical Fee Schedule contained in title 8, California Code of Regulations, section 9789.60, is adjusted to conform to changes to the Medicare payment system that were adopted by the Centers for Medicare & Medicaid Services for calendar year 2017.

The update includes changes identified in Center for Medicare and Medicaid Services Change Request (CR) number 9854.

Effective for services rendered on or after January 1, 2017, the maximum reasonable fees for Durable Medical Equipment, Prosthetics, Orthotics, Supplies shall not exceed 120% of the applicable California fees set forth in the Medicare calendar year 2017 “Durable Medical Equipment, Prosthetics/Orthotics, and Supplies (DMEPOS) Fee Schedule” revised for January 2017, contained in the electronic file “DME17-A (Updated 12/07/16) [ZIP, 2MB]”

For the services on or after January 1, 2017 payment shall not exceed 120% of the fee set forth for the HCPCS code in the CA (NR) column, except the fee shall not exceed 120% of the fee set forth in the CA (R) column if the injured worker’s residence zip code appears on the DMERuralZip_Q12017_V11142017 file. Where column CA (NR) sets forth a fee for a code, but CA (R) for the code is listed as “0.00” the fee shall not exceed 120% of the CA (NR) fee, regardless of whether the injured worker’s address zip code is rural or non-rural.

The order adopting the adjustment can be found on the DWC website.

An investigation into what is being billed as one of the largest workers’ compensation insurance fraud schemes uncovered in the county’of San Diego’s history has swept up medical professionals throughout Southern California and now consequences for Fermin Iglesias, one of the involved cappers.

According to prosecutors, a group of recruiters would entice workers – many of them seasonal workers who lived abroad at times – to file workers’ compensation claims. The alleged recruiters were identified as Fermin Iglesias and Carlos Arguello, who operated Providence Scheduling, Medex Solutions, Prime Holdings International and Meridian Rehab Care, and administrator Miguel Morales.

They would allegedly advertise in the U.S. and Central America via flyers or cards stuck on windshields to contact a call center if a worker has been injured on the job and needs help filing a claim, said Assistant U.S. Attorney Alana Robinson.

The recruiters would then allegedly refer the patients to specific doctors in Southern California, who would in turn prescribe certain medical tests and treatment – such as chiropractic, MRIs, pain management, echo cardiograms and even sleep studies – to companies in return for kickbacks, she said. The bribes were usually $50 to $100 per patient, court records show. The bribes were done without the patients’ knowledge.

The treatment was then billed to various insurance companies, including Liberty Mutual and Hartford.

Chiropractors would be required to fill a monthly quota of referrals or their patient pipeline and bribes would be cut off, authorities said. In one instance, San Diego chiropractor Steven Rigler was warned that he’d fallen $60,000 behind in referrals for procedures and he’d be cut out of the operation unless he wrote the organization a $20,000 to $30,000 check, according to the latest federal indictment.

Rigler has already pleaded guilty, as well as San Diego workers’ compensation attorney Sean O’Keefe.

One of the clinics implicated is Crosby Square Chiropractic, where Rigler worked, which has offices in San Diego, Escondido and Calexico, prosecutors said. Other medical professionals indicted are chiropractors Amir Khan of Orange and David C. Nguyen of Huntington Beach, and pain management Dr. Phong H. Tran of Irvine. Dr. Ronald Grusd of Los Angeles, who was charged federally last year, and was also included in a new state indictment.

And according to the Deferred Prosecution Agreement filed on December 8 in federal court, Fermin Iglesias admitted the allegations of the indictment against him, that he recruited and/or facilitated the recruitment of Workers’ Compensation applicants for legal and medical services .He controlled and operated multiple entities, including, Providence Scheduling Inc., Medex Solutions, Inc., Meridian Medical Resources, Inc., d. b. a. Meridian Rehab Care, and Prime Holdings Int. Inc.

Iglesias further admitted that a “purpose of the conspiracy was to fraudulently obtain money from …insurers by submitting claims for medical goods and services that were secured through an unlawful cross-referral scheme in which defendants supplied patients to doctors and required the doctors to refer those patients to certain providers of ancillary medical goods and services, and the defendants received money from the providers or from health care insurers as part of the scheme, in violation of the doctors’ fiduciary duty to their patients, and concealing from insurers and patients the bribes and kickbacks that rendered the claims unpayable under California law.”

And Iglesias admitted that “It was a part of the conspiracy that Defendants Iglesias, MedEx, Prime Holdings International, Inc., as well as Carlos Arguello and Miguel Morales, received kickbacks and bribes from providers of diagnostic imaging services, including Dr. Ronald Grusd (charged elsewhere) and others” and that “co-conspirator Dr. Grusd and others, concealed from insurers and patients the material fact that referrals were made because of bribes and kickbacks specifically prohibited by California law”.

Iglesias and his coconspirators “further admit that their scheme involved multiple doctors..” and that the “total criminal conduct exceeded $9.5 million in claims to healthcare insurance providers. Iglesias, MedEx, Prime Holdings International, Inc., and Meridian further agree that the gross income derived from this corrupt crossreferral scheme exceeded $5 million.”

Charges against Ronald Grusd M.D. are still pending in federal court, case 15-cr-2821-BAS. The trial date was set for January 24, 2017, but was vacated. According to court records, the “discovery produced by the United States to date consists of multiple gigabytes of data, including reports, emails, medical claim files, audio recordings and video recordings.” The criminal defendants “retained new counsel, who made his first court appearance on October 11, 2016” and needed more time to prepare.

The California Medical Board reports that the Superior Court has issued an order effective March 14, 2016 that Grusd no longer practice medicine pending the outcome of criminal charges in state court pending against him.

AB 1244 will adversely affect the ability of the medical providers who may have filed liens for the collection of fees from recovering additional funds after January 1.