Author: WorkCompAcademy

A U.S. farm worker and a horticultural assistant have filed lawsuits claiming Monsanto Co.’s Roundup herbicide caused their cancers. According to the report in Reuters Health, the lawsuits come six months after the World Health Organization’s cancer research unit said it was classifying glyphosate, the active weed-killing ingredient in Roundup and other herbicides, as “probably carcinogenic to humans.”

One suit, filed in U.S. District Court in Los Angeles on Sept. 22, names as plaintiff 58-year-old Enrique Rubio, a former farm worker in California, Texas and Oregon who over several years labored in fields of cucumbers, onions and other vegetable crops. His duties included spraying fields with Roundup and other pesticides before Rubio was diagnosed with bone cancer in 1995, the lawsuit states.

A separate lawsuit making similar claims was filed the same day in federal court in New York by Judi Fitzgerald, 64, who claims she was exposed in the 1990s to Roundup when she worked at a horticultural products company. Fitzgerald was diagnosed with leukemia in 2012.

Attorney Robin Greenwald, one of the attorneys who brought Rubio’s case, said on Tuesday that she expects more lawsuits to follow because Roundup is the most widely used herbicide in the world and the WHO cancer classification gives credence to long-held concerns about the chemical. “I believe there will be hundreds of lawsuits brought over time,” said Greenwald.

Monsanto spokeswoman Charla Lord said that the claims are without merit and that glyphosate is safe for humans when used as labeled. “Decades of experience within agriculture and regulatory reviews using the most extensive worldwide human health databases ever compiled on an agricultural product contradict the claims in the suit which will be vigorously defended.”

WHO scientists cited several studies showing cancer links to glyphosate, though Monsanto has said the findings are wrong. Since the WHO action, some product liability lawyers have been seeking out plaintiffs for potential class-action lawsuits over glyphosate, postings on legal websites show.

The Los Angeles District Attorney’s Office outlined the roles 11 co-defendants allegedly played in the operation of a medical fraud scheme that netted defendants hundreds of millions of dollars. The story in CBS News reports that prosecutors describe a sprawling fraud scheme where 11 of the 15 defendants “billed hundreds of millions of dollars in fraudulent insurance claims, mostly involving workers compensation, that ranged from billing for services never provided to fraudulent surgeries.” Fraudulent billings, prosecutors say, that “continue today.”

At least 15 defense attorneys packed Judge Kathleen Kennedy’s downtown Los Angeles courtroom for a bail hearing for the 15 alleged co-conspirators. Bailiffs had to deny access to many in the overflowed courtroom. Bail bondsmen filled the aisles, among them the Beverly Hills bail bondsmen to rappers including Snoop Dog and Dr. Dre, and Josh Herman, who assisted Park with bail that sprung her for the murder trial. At one point Judge Kennedy mused that she had half the sheriff’s department in her courtroom.

The prosecution set a bail schedule for each of the 11 defendants at close to or exceeding $20 million. The four defendants in the related indictment have bail ranging from $1 million to nearly $3 million. In Friday’s hearing, defense attorneys argued for bail reduction calling the schedule “astronomical” and “unfair.”

Former Los Angeles County District Attorney Steve Cooley has referred to as “non-traditional” organized crime. “It’s not La Cosa Nostra, instead it is organized criminals who are smart enough to take advantage of society’s weaknesses,” says Cooley. “These kinds of frauds are rampant and thoroughly penetrate the American health care system,” Cooley says. “Given the amount of money committed to health care in the United States, this is where the organized crime goes, it follows the money.”

Prosecutors contend that in 2009, Uwaydah’s fraud enterprise reached the stage that Uwaydah and other charged defendants including Park “conspired to take over a distressed bank… in order to facilitate the laundering of their criminal proceeds.”  Prosecutors accuse Park of controlling fraudulent billing practices for Uwaydah’s business empire, “placing her name on shell companies and shell bank accounts … designed to hide Uwaydah’s identity.” They also allege she attended weekly meetings with Uwaydah and other associates to discuss “hiding assets from creditors, insurance companies and law enforcement.”

At one point, the prosecution presented documents alleging that even last Tuesday, the very same day the 15 defendants were arraigned in court, the medical conspiracy still continued to churn out fraudulent medical billings and services while the alleged conspirators were in custody.

Class action lawsuits were filed against on-demand delivery companies DoorDash and GrubHub in California state court this week. SF Weekly reports that the lawsuits allege that DoorDash and GrubHub are misclassifying delivery drivers as independent contractors instead of direct employees. The suits were filed in San Francisco by labor attorney Shannon Liss-Riordan. Liss-Riordan is also pursuing class action lawsuits over independent contractor classification against Uber, Lyft, and Postmates. On September 1, a judge granted Uber drivers class action status in Liss-Riordan’s suit. The Uber suit is the furthest along in the legal process of all the sharing economy worker classification lawsuits.

“The facts of all of these cases are so similar,” Liss-Riordan said of her numerous lawsuits against “sharing economy” companies. “There are minor variations here and there, but really they’re all just copying each other and thinking they can get away with it.”

DoorDash is an on-demand food delivery service similar to Postmates. Based in Palo Alto, the company operates in the Bay Area and 13 other markets nationally. DoorDash promises deliveries within 45 minutes. GrubHub is an online food ordering service that includes the brands Seamless, MenuPages, Allmenus, Restaurants on the Run, and DiningIn. GrubHub provides its own delivery drivers in some markets. Those are the workers that Liss-Riordan’s suit alleges are misclassified.

In addition to the complaints against DoorDash and GrubHub, Liss-Riordan filed a demand for arbitration against Caviar, another on-demand delivery service, also regarding the classification of a single employee as an independent contractor. According to Liss-Riordan, her law firm is representing all of the complainants individually, as well as in the class action cases.

Doreen Dahl sustained a cumulative industrial injury in 2005 (pre SB 863) to her neck and right shoulder while employed by Contra Costa County as a medical records technician. She was 49 years old and had worked for the county for over 8 years. Dahl’s vocational experts noted that she has a bachelor’s degree from CSU Hayward and a felony conviction for possession and sale of methamphetamine.

The WPI resulted in a rating of 59 percent disability. However, Dahl sought to rebut the scheduled rating through a vocational expert (Jeffrey Malmuth), and the County sought to counter that with its own expert (Ira Cohen). The WCJ initially awarded the 59% disability pursuant to the Schedule but it was was rejected on reconsideration. The WCJ then assigned Dahl a disability of 79 percent. The WCAB affirmed an increase based upon the Olgivie case in the second award. In doing so, the WCAB again concluded that “complete lack of amenability to vocational rehabilitation” is not “necessary before a LeBoeuf analysis may be properly applied.”

The Court of Appeal rejected the WCAB methodology in the published case of Contra Costa County v WCAB (Dahl) holding “When it devised this new methodology, the WCAB acted in excess of its authority.”

There are three methods to rebut the scheduled rating: 1) a factual error in the application of a formula or the preparation of the schedule, 2) when the injury impairs rehabilitation, and for that reason, the employee’s diminished future earning capacity is greater than the scheduled rating or 3) when a claimant can demonstrate that the nature or severity of the injury is not captured within the sampling of disabled workers used to compute the adjustment factor. The second method however requires that the diminished future earnings is directly attributable to the employee’s work-related injury, and not due to nonindustrial factors such as general economic conditions, illiteracy, proficiency in speaking English, or an employee’s lack of education. This case involved application of the second method.

Under the second method, the WCAB held that Dahl could rebut the scheduled rating by showing the injury impaired her amenability to rehabilitation, even where there was less than total permanent disability. The Court of Appeal responded by saying “We are skeptical of WCAB’s conclusion that an employee may invoke the second Ogilvie rebuttal method where the inability to rehabilitate results in less than a 100-percent permanent disability.” However the Court did not decide the case on that basis. Instead it concluded “There is no evidence that the injury even limited her rehabilitation prospects.”

“In sum, we find WCAB’s approach in this case flies in the face of Ogilvie and the 2004 amendments to the workers’ compensation scheme. Under the 2004 amendments, a claimant’s scheduled rating is presumptively correct. Ogilvie confirmed the Legislature meant what it said, and that claimants may not rebut their disability rating merely by offering an alternative calculation of their diminished future earning capacity.”

Senate Bill 863 in part was designed to combat an acute “lien crisis” in the workers’ compensation system by imposing a $100 “activation fee” on liens filed prior to January 1, 2013. Angelotti Chiropractic and others sued in federal court challenging the constitutionality of these provisions claiming that SB 863 violates the Takings Clause, the Due Process Clause, and the Equal Protection Clause of the United States Constitution.

The trial court issued a preliminary injunction in plaintiffs’ favor as to the Equal Protection claim, but not as to the other claims. Defendants appealed the district court’s issuance of the preliminary injunction and its denial of the motion to dismiss the Equal Protection claim. The 9th Circuit Court of Appeal reversed last June, and vacated the injunction in the published case of Angelotti Chiropractic Inc. v Christine Baker.

The panel held that the district court properly dismissed the Takings Clause claim because the economic impact of SB 863 and its interference with plaintiffs’ expectations was not sufficiently severe to constitute a taking. The panel further concluded that the lien activation fee did not burden any substantive due process right to court access and also rejected plaintiffs’ claim that the retroactive nature of the lien activation fee violated the Due Process Clause.

The lien claimants file a petition for rehearing in the 9th Circuit Court of Appeal. According to the latest status report filed in the underlying federal action, there is not yet any ruling on the petition.

The California Society Of Industrial Medicine (CSIMS) is the association exclusively representing the private physician practicing occupational medicine in California. In the aftermath of the Angelotti decision, and apparently assuming that the petition for rehearing will be denied, has announced a new website, www.lienactivation.com, to assist lien holders to identify unresolved liens.

According to its website “Pending final resolution of the Angelotti litigation, all unresolved liens filed prior to January 1, 2013 are subject to a $100 lien activation fee. This website will enable you to quickly and easily identify all of your unactivated liens and receive a detailed list via email. It doesn’t matter how or when your liens were filed, or if the name of the lien claimant was misspelled at the time of filing. You can find them all using our simple Lien Finder search tool.”