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Author: WorkCompAcademy

Union Asks Supreme Court to Invalidate Prop 22 Gig Measure

A major labor union and several ride-hailing drivers are suing to overturn a newly passed ballot measure classifying gig workers as independent contractors in California.

The Washington Post reports that the groups filed suit Tuesday in California’s Supreme Court, alleging Proposition 22 violates the state constitution and limits the power of state legislators to implement certain worker protections they are authorized to grant.

The suit, filed by Service Employees International Union and a group of ride-hailing drivers, asks the state Supreme Court to invalidate Prop 22, which cemented gig driver’s status as independent contractors after more than 58 percent of voters supported it in November.

They argue the measure limits state legislators’ ability to implement a system of workers’ compensation in defiance of their constitutional authority to do so. It also argues that the proposition unconstitutionally defines what comprises an amendment to the measure, as well as violating a rule limiting ballot measures to a single subject to prevent voter confusion.

The Protect App-Based Drivers and Services coalition, which represents gig companies such as Uber, Lyft and Doordash, criticized the lawsuit in a statement attributed to Uber driver Jim Pyatt, an activist who has worked in favor of Prop 22.

The groups that filed the suit, which also include SEIU California State Council, took particular issue with the measure’s inclusion of a provision requiring a seven-eighths legislative supermajority to amend and even define what constitutes an amendment. That authority, they say, is vested with the courts.

The lawsuit blasts the measure’s drafters as having “impermissibly” usurped this Court’s authority to ‘say what the law is’ by determining what constitutes an ‘amendment.’”

Further, they argued, they violated the single-subject rule by “burying these cryptic amendment provisions on subjects not substantively addressed in the measure, and in language that most voters would not understand.”

They said they were suing in the state Supreme Court rather than a lower court because the issues were of broad public importance and required a speedy resolution to minimize harm to gig workers.

Staffing Company Sues for Fraudulent Comp Insurance

Simplified Labor Staffing Solutions, Inc. and Simplified Staffing Labor Solutions, LLC are sister entities that provide staffing services, that is, secure payroll services, insurance coverage, licenses, and corporate benefits.

Ashish Wahi owns Simplified. Michael Dougan is its chief financial officer. A major expense in their business operation is paying for workers’ compensation insurance.

Simplified initiated litigation against Trinity Risk Management, LLC, affiliated entities Knight Management Group, Inc. and H.J. Knight International Insurance Agency, Inc., and other named defendants. Simplified alleged fraud-based claims related to workers’ compensation insurance it had purchased from defendants who sell workers’ compensation insurance to staffing companies.

Simplified filed a first amended complaint against defendants, and added Captive Resources, Inc. as another named defendant.

Simplified alleged defendants conspired to induce Simplified to purchase their worker’s compensation insurance through them by claiming that after one year of paying surcharges on the actual premiums for the coverage they required, Simplified would then earn “steep discounts on worker’s compensation coverage.” Defendants “purported to offer underwriting of insurance risk without being a licensed insurance company, and/or offered for sale insurance coverage as a broker without being a licensed broker . . . or by means of misrepresenting the actual party they represented.

The defendants filed a cross-complaint against Simplified, alleging eight causes of action, including defamation. The cross-complainants alleged Simplified and/or Wahi were approximately $2 million dollars in arrears on Simplified’s workers’ compensation payments.

Simplified filed a special motion to strike the defamation cause of action from the cross-complaint as a strategic lawsuit against public participation under the anti-SLAPP statute. The trial court granted Simplified’s special motion to strike and the court of appeal affirmed in the unpublished case of Trinity Risk etc. v. Simplified Labor.

The purpose of the anti-SLAPP law is not to insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.

The wording of the statute protects the right of litigants to the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. The law provides that it “shall be construed broadly.”

WCAB Significant Panel Decision Evaluates Remote Trials

Limin Gao filed an Application for Adjudication, alleging a psyche injury while employed by Chevron from May 2, 2014 to July 2, 2015.

The matter proceeded to trial on March 10, 2020. Gao provided in-person testimony, both direct and on cross-examination, flying in from her current residence in Ontario, Canada in order to do so.

Because the trial could not be completed in one session, the trial was continued to June 9, 2020, with in-person testimony contemplated from several defense witnesses.

In light of the Covid-19 pandemic, WCAB District Offices stopped conducting in-person trials as of March 16, 2020. Beginning May 4, 2020, WCAB District Offices began to hear trials on the case-in-chief remotely, via phone link.

On May 7, 2020, the State of California’s Governor, Gavin Newsom, issued Executive Order N-63-20 which essentially suspended the requirement that a witness testify in person under certain conditions and circumstances.

As the June 9, 20201 trial date approached, the parties made clear they had very different ideas about how the case should proceed. Applicant favored proceeding via remote testimony, while defendant objected, requesting a continuance until in-person testimony could be elicited from its three rebuttal witnesses.

The WCJ issued the Order Continuing September 1, 2020 Trial, stating that due process required continuing the trial to allow for in-person testimony from defendant’s witnesses, because applicant had previously given in-person testimony. Limin Gao Petitioned for Removal to have the WCAB rule on the legality of the WCJ order continuing the hearing. The panel reversed and remanded in the significant panel decision of Limin Gao v Chevron Corporation.

The WCAB ruled that “each case must be resolved according to its own particular circumstances, and it would therefore be inappropriate to institute a blanket rule that it is per se unreasonable to continue a case to allow for in-person testimony.

“However, in consideration of Executive Order N-63-20, the purposes of the workers’ compensation system, and current conditions, the default position should be that trials proceed remotely, in the absence of some clear reason why the facts of a specific case require a continuance. Moreover, as the party seeking the continuance, the burden should be on defendant in this case to demonstrate why a continuance is required.

April QME Examination Now In-home by Computer

The Division of Workers’ Compensation (DWC) is now accepting applications for the Qualified Medical Evaluator (QME) examination for April 17, 2021.

DWC will offer in-home computer-based testing (CBT) for the April 2021 QME examination using Proctor U.

Candidates who are interested in taking the CBT exam and have the minimum system requirements should indicate so on the application. CPS HR Consulting, the vendor managing the QME Exam, will notify interested candidates of the registration and scheduling process.

DWC will continue to offer an in-person examination in Northern and Southern California on April 17, 2021 following the guidelines and recommendations by the CDC and California Department of Public Health. The test sites will be announced on the Registration Notices.

Application and Registration packet for the QME exam may be downloaded from the DWC website.

Applicants may also contact the Medical Unit at 510-286-3700 to request an application via U.S. mail, email or fax. The deadline for filing the exam applications is March 4, 2021. No applications will be accepted after this postmarked date.

For more information, contact the Medical Unit at 510-286-3700 or by email at QMETest@dir.ca.gov..

California COVID Vaccine Distribution Faces Logistical Issues

Distribution of the COVID vaccines, which in California is done in several phases and prioritizes first doses for health care workers and people at risk of becoming severely ill from the virus, has lagged other jurisdictions by a considerable margin.

Nationwide, about 6.7 million Americans have received a vaccine dose according to the Centers for Disease Control and Prevention. The CDC has projected that close to 90 million people will be vaccinated by March, still under one third of Americans and far less than the 70% officials say is needed to reach herd immunity.

In California, vaccine rollout has been beset by a number of issues that bring into focus challenges that come with such a gargantuan effort.California has received just over 2 million vaccine doses but only administered about 652,000 of them as of Jan. 8.

Vaccine doses are also lower than anticipated, with officials estimating they won’t have enough doses to immunize “most” residents of its 58 counties until the summer.

Lags are also tied to ultra-low temperature storage requirements for the Pfizer vaccine, a shortage of vaccination sites and staff to administer doses and a delay in setting up systems to track who is immunized and where they live.

The Golden State has the nation’s highest total of people infected with Covid-19, with more than 2.5 million cases. As of Jan. 7, health departments statewide have reported 73,862 positive cases among health care workers and 276 deaths.

California recently told local health departments and providers to expand vaccine eligibility by offering doses to community health and testing site workers, public health field staff and dental clinic and pharmacy personnel.

More than 586,000 health care workers in California have received the first dose of a Covid-19 vaccine, according to state data.

The new guidance also says once demand has subsided from the first priority group, doses should be allocated to people age 75 and older, childcare workers, staff in emergency response and food service and educators.

Los Angeles County, where about 1 in 5 people being tested for Covid-19 are currently testing positive, is the largest from a cluster of Southern California counties that has received about 256,000 doses from the state, the largest quantity of any region. The area includes Orange, San Luis Obispo, Santa Barbara and Ventura counties.

Still, there aren’t enough vaccine doses currently available to immunize even half of the county population by spring, Dr. Paul Simon, chief science officer at LA County’s Department of Public Health, said Friday.

The county said in a statement Friday it opened 19 vaccination sites this week and will open 75 more by next week.

Martin Brady Appointed CHSWC Chair for 2021

The California Commission on Health and Safety and Workers’ Compensation (CHSWC) announce the unanimous election of Commissioner Martin Brady as the Chair of the Commission for 2021.

The election was held at the December 3, 2020 public CHSWC meeting held online due to the current Covid-19 pandemic.

Martin Brady is Executive Director at Schools Insurance Authority, where he has worked since 1988.

He is a member of the California Joint Powers Authority, California Coalition on Workers’ Compensation, Public Agency Risk Managers Association, Public School Risk Institute, Association of Governmental Risk Pools and the Public Risk Management Association.

Mr. Brady has been a member of the Commission since 2012.

CHSWC, created by the workers’ compensation reform legislation of 1993, is charged with examining the health and safety and workers’ compensation systems in California and recommending administrative or legislative modifications to improve their operation.

CHSWC was established to conduct a continuing examination of the workers’ compensation system and of the state’s activities to prevent industrial injuries and occupational diseases and to examine those programs in other states.

Information about CHSWC and its meetings is available online. Information may also be obtained by writing to the Commission on Health and Safety and Workers’ Compensation, 1515 Clay Street, 17th Floor, Oakland, CA 94612; by calling (510) 622-3959; by faxing a request to (510) 286-0499; or by emailing chswc@dir.ca.gov.

Due to the current Covid-19 pandemic, CHSWC public meetings will be held online until further notice.

January 4, 2021 – News Podcast


Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: Injured Worker $575K Discrimination Jury Verdict Affirmed. EDD Remains Easy Fraud Target – Even From Prisoners. Sacramento Cleaning Company Owner Faces Premium Fraud. Surgeon Facing $29M Fraud Released After Positive COVID Test. Cal/OSHA Targets Meatpacking and Food Processing Employers. 2021 Mileage Reimbursement Rate Declines to 56 Cents. Virtual 28th Annual DWC Educational Conference Date Set. Gig Companies Launch “Prop 22” Type Initiatives in Key States. Feds Approve “Surprise Medical Bill” Ban. Duration of COVID Vaccine Immunity Remains Speculatory.

DWC Allows Walk-Through Documents at Local Offices

Since the onset of the COVID-19 crisis in March, the Division of Workers’ Compensation (DWC) has worked hard to ensure the continuity of its services to the workers’ compensation community. District offices continue to hear all cases either via teleconference or by video.

In an additional measure to keep DWC and the workers’ compensation community safe, DWC has not accepted any walk-in documents or walk-through documents since March. Documents have only been accepted via e-filing, JET filing or by mail during this time. Recently, DWC issued a Newsline further encouraging the workers’ compensation community to file documents by e-filing or JET filing due to the limited availability of staff in our district offices.

The Workers’ Compensation Appeals Board (WCAB) recently issued an en banc decision suspending Regulation Section 10789(c) on walk-throughs. This change allows DWC, effective January 11, to now offer a “walk-through alternative” in the Lifesize video conferencing platform. Instructions on using that platform may be found on the DWC website.

District offices will be available for walk-throughs Monday through Friday, from 2 to 4 p.m. only. Walk-throughs will be available only for a Compromise and Release, or Stipulation with Request for Award at this time. To be heard, the documents must be filed at least 24 hours ahead of the walk-through appearance, by either JET filing or e-filing. Documents filed by U.S. mail must be available to the judge in EAMS prior to the walk-through.

DWC has previously posted instructions on how to e-file settlement documents. The walk-through procedure will be handled via the Lifesize virtual courtroom which will be available for each office. A list of links for each office may be found here. The link for each virtual walk-through courtroom will not change. It should be noted that a judge will handle as many walk-throughs as are feasible for the day. The order in which a judge will hear the walk-throughs will be up to the judge handling that day’s matters. We encourage parties to file proposed orders to assist the judge with handling the matter more expeditiously.

DWC understands that parties may want to walk-through other documents. However, at this time walk-throughs are limited to only a Compromise and Release or Stipulation with Request for Award. Limits will be based on both availability and pursuant to the DWC/WCAB Policy and Procedural Manual section 1.25.

DWC will be monitoring the impact of this program and will look to expand hours and documents allowed in the future based on staffing availability.

Workplace Deaths (Non-Pandemic) Rose 2% in 2019

The number of U.S. workplace deaths rose 2% in 2019 to 5,333 from 5,250 fatal workplace injuries in 2018, according to the most recent Census of Fatal Occupational Injuries released by the Labor Department’s Bureau of Labor Statistics (BLS). The fatal work injury rate was 3.5 fatalities per 100,000 full-time equivalent (FTE) workers, the same rate reported in 2018.

It was the highest number of fatalities reported since 2007. Transportation incidents continued to account for the largest share of fatalities; transportation incidents increased 2% in 2019 to 2,122 cases. Falls, slips, and trips increased 11% in 2019 to 880 cases.

Other key findings in the BLS report included:

— The 5,333 fatal occupational injuries in 2019 represents the largest annual number since 2007.
A worker died every 99 minutes from a work-related injury in 2019.
Fatalities among workers age 55 and over increased 8 percent from 1,863 in 2018 to 2,005 in 2019, which is the largest number ever recorded for this age group.
Hispanic or Latino worker fatalities were up 13 percent to 1,088 in 2019–a series high since 1992.
Workplace deaths due to suicides (307) and unintentional overdoses (313) increased slightly in 2019.
Fatalities in the private construction industry increased 5 percent to 1,06- the largest total since 2007.
Driver/sales workers and truck drivers incurred 1,005 fatal occupational injuries, the highest since this series began in 2003.

Both the NSC and American Society of Safety Professionals (ASSP) responded to the CFOI report, calling for employers to take consistent, systemic action to curtail the number of workplace deaths.

“Fatalities should never be the cost of doing business,” NSC said in a statement. ASSP urged employers to adopt voluntary national consensus standards and implement safety and health management systems in response to numbers of workplace fatalities reported in 2019.

“With many safety advancements being readily available to employers nationwide, it’s troubling that we’re continuing to see higher numbers of worker fatalities,” said ASSP President Deborah Roy said in a statement.

ASSP said that employer efforts to improve workplace safety should involve safety and health management systems like the one specified in the group’s Z10.0-2019 standard.

Irvine Diagnostic Lab Pays $358K to Resolve False Claim Charges

Exceltox, a California diagnostic laboratory located in Irvine California, has agreed to pay $357,584 to resolve allegations that it violated the False Claims Act by submitting or causing to be submitted claims for genetic tests to Medicare without valid physician oversight..

Between September 2015 to November 2015, Exceltox used the services of contractor Seth Rehfuss, of Somerset, New Jersey, who persuaded groups of senior citizens in senior housing complexes to submit to genetic testing, despite applicable Medicare rules requiring proper orders from a treating physician for such tests.

Exceltox, in turn, submitted claims for payment to Medicare for Rehfuss’ genetic tests performed without valid physician oversight.

Rehfuss previously pleaded guilty in Trenton federal court to a superseding information charging him with conspiracy to commit health care fraud and was sentenced in May 2019 to 50 months in prison.

Exceltox was also connected with the prosecution of a Bakersfield physician in 2019, Jason Helliwell, who was at the time on probation by the state medical board for negligent patient care and sex with patients, faced criminal allegations of billing fraud.

Helliwell and two others were charged Sept. 4 2019, in a 31-count criminal complaint alleging a fraudulent medical billing scheme, according to the complaint filed by the Kern County District Attorney’s Office.

The complaint alleges that Helliwell, 47, conspired with Brandon Williams, 40, a sales representative for Irvine-based Exceltox toxicology lab, and Tamara Head, 53, owner of Rosedale Medical Billing Solution, to charge insurance companies for medically unnecessary treatment. The alleged fraud in the complaint dates back to 2010 and occurred as recently as 2016.

The schemes alleged in the DA’s complaint and investigative reports involve Helliwell ordering unnecessary blood and urine tests for patients for which Head is accused of fraudulently charging insurance companies. Helliwell received kickbacks from Williams, whose lab performed some of the testing, for the samples.

Reports state that Helliwell would collect urine samples from patients for lead and mercury testing and would “surreptitiously” order additional testing for illicit drugs without the patient’s knowledge.

Helliwell was given $20 to $25 per patient sample by the toxicology lab, former employees told an investigator, and the lab also paid for a personal medical assistant for Helliwell, according to reports.

Helliwell also ordered testing on an in-house blood allergy machine for patients who didn’t complain of allergy symptoms, the reports said.

Emails obtained between Helliwell and Head indicated the two worked together to bill insurance companies for services not provided to patients, to bill under other doctor’s names and to manipulate billing to receive higher reimbursements, the reports said.

The discovery was made as part of a joint investigation with the California Department of Insurance, according to Kern County Deputy District Attorney Joseph Kinzel.