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Court Applies Borello Standard in Appeal of Criminal Conviction

Ian Czirban was charged with a number of regulatory crimes following a fatal July 2016 accident involving his bulldozer, which had been assisting the California Department of Forestry and Fire (Cal Fire) at a wildfire in Monterey County.

After a bench trial, the trial court convicted Czirban of procuring or offering a false or forged instrument, tax evasion, failure to collect, account for, or pay taxes, and misdemeanor failure to secure payment of workers’ compensation insurance.

For these convictions, the trial court suspended imposition of sentence and placed Czirban on felony probation for three years with various conditions, including the payment of a $10,000 fine under Labor Code section 3700.5.

On appeal, Czirban contends that his convictions for tax evasion, failure to pay taxes, and failure to secure payment of workers’ compensation insurance must be reversed because he did not have an employment relationship with his bulldozer drivers, an element of those offenses.

The parties agreed at trial that the trial court should resolve this factual question central to counts 5, 6, and 7 under the multifactor test articulated in Borello – not the three-part – “ABC test” – adopted by the California Supreme Court for wage order claims, a year before Czirban’s trial, in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, 916, 964.

Given the timing of the criminal acts alleged against Czirban, the court concluded that the parties’ agreement regarding the applicability of Borello was proper.

Czirban relies on Borello, 48 Cal.3d at p. 349 and Lara v. Workers’ Comp. Appeals Bd. (2010) 182 Cal.App.4th 393, 396, 398 (Lara) to argue that the question of worker status.

The conviction was affirmed in the published case of People v Czirban. The terms of probation were however reversed and the matter submitted back to the trial court with instructions.

Examining the trial evidence under the Borello test, the court concluded that there is sufficient evidence of an employment relationship between Czirban and his bulldozer drivers during the relevant period.

The evidence demonstrates that it was Czirban who decided whether to accept 24-hour resource assignments from Cal Fire (including the Soberanes fire assignment), knowing that he would need to enlist other bulldozer drivers to complete them. Czirban thus controlled the overall scope of the work, the number of operators needed for any assignment he accepted, who those other operators would be, and the overall period during which the operators would work.

During Czirban’s chosen wildfire assignments, his bulldozer drivers also were not “engaged in a distinct occupation or business.”

These circumstances demonstrate Czirban’s “right to control the manner and means of accomplishing the result desired,” (Borello, supra, 48 Cal.3d at p. 350) i.e., to have certain workers operate his bulldozer to fulfill his chosen wildfire assignments so he could obtain a higher rate of compensation from Cal Fire.

States Face August 21 Deadline to Accept $26B Opiod Settlement

Reuters reports that U.S. states are racing to meet a deadline to commit to a $26 billion opioid settlement with three drug distributors and the drugmaker Johnson & Johnson, as some grapple with local resistance and concerns the amount isn’t big enough to address the damage done by an epidemic of addiction.

Fourteen state attorneys general unveiled the proposed settlement here with McKesson Corp, AmerisourceBergen Corp, Cardinal Health Inc and J&J on July 21, kicking off a months-long process for states, counties and cities to sign on.

By Saturday, states must decide whether to join settlements that call for the distributors to pay $21 billion and J&J to pay $5 billion, money meant to help fund treatment and other services. The epidemic of opioid abuse has resulted in nearly 500,000 overdose deaths since 1999, according to the U.S. government.

The settlement’s complex formula envisions at least 44 states participating, but ultimately the companies decide whether a “critical mass” have joined and whether to finalize the deal.

North Carolina Attorney General Josh Stein, a lead negotiator, last month said he expected “well north” of 40 states to join. But several are against it, including Washington and New Mexico and communities in West Virginia holding out in hopes of recouping more.

Michigan, South Carolina and Nevada say they are still evaluating the deal.

Ohio, which was slated to take the distributors to trial next month, is nearing a separate, related $808 million deal with them.

In hard-hit New Hampshire, Associate Attorney General James Boffetti said he recently told a judge the state was unlikely to join the deal with J&J, which the state plans to take to trial next year.

“That settlement is small in comparison to the harm that they caused in New Hampshire and other places,” he said. “It’s just not sufficient.”

Texas Attorney General Ken Paxton on Aug. 5 announced the state would join the distributors’ settlement, but in a twist said the state was “still evaluating” J&J’s piece.

Some local Texas governments have opposed the deal, and a January trial date is set in a lawsuit by the populous city of Dallas, which has sued the distributors, J&J and others for $10.5 billion.

New Low Back Guideline Supports Benefits of RTW

The Division of Workers’ Compensation (DWC) has issued a Notice of Public Hearing for a proposed evidence-based update to the Medical Treatment Utilization Schedule (MTUS), which can be found at California Code of Regulations, title 8, section 9792.23.5. The Zoom public hearing is scheduled for Friday, September 17, at 10 a.m.

The proposed evidence-based update to the MTUS incorporate by reference the latest published guideline from American College of Occupational and Environmental Medicine (ACOEM) for the following:

– – Low Back Disorders (ACOEM February 13, 2020)

Two of the many recommendations in the new guideline illustrate the emphasis of early return to work as a treatment objective:

– – “Many invasive and noninvasive therapies are intended to cure or manage LBP, but no quality evidence exists that they accomplish this as successfully as therapies that focus on restoring functional ability without focusing on pain. In those cases, the traditional medical model of “curing” the patient does not work well. Instead, patients should be aware that returning to normal activities most often aids functional recovery.

– – “Patients should be encouraged to accept responsibility for managing their recovery rather than expecting the provider to provide an easy “cure.” This process promotes the use of activity and function rather than pain as a guide, making the treatment goal of return to occupational and non- occupational activities more obvious.

The proposed evidence-based update to the MTUS regulations are exempt from Labor Code sections 5307.3 and 5307.4 and the rulemaking provisions of the Administrative Procedure Act. However, DWC is required under Labor Code section 5307.27 to have a 30-day public comment period, hold a public hearing, respond to all the comments received during the public comment period and publish the order adopting the update online.

Members of the public may review and comment on the proposed updates. Written comments must be submitted no later than September 17. Please see the proposed regulation page for direction for submitting written comments.

Members of the public may attend the public hearing:
Access Information
Join from PC, Mac, Linux, iOS or Android: https://dir-ca-gov.zoom.us/j/83914299767
Or Telephone:
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USA 216 706 7005
USA 8664345269 (US Toll Free)
Conference code: 956474

S.F. Restaurant Resolves Wage and Tip Theft Case for $1.6M

The Labor Commissioner’s Office has reached a $1.6 million settlement with the owners of Z & Y Restaurant in San Francisco, securing compensation for 22 workers for unpaid minimum wages, overtime, split shift premiums and tips identified in a wage theft investigation from 2019. Including expected post-settlement interest, each worker will receive on average approximately $73,000 under this settlement from payments that began today after the employer entered into an agreement with the Labor Commissioner’s Office.

California law prohibits employers from taking tips left by customers for servers,” said California Labor Commissioner Lilia García-Brower. “Under this settlement, the employer will pay workers back all of those stolen tips totaling over $400,000.”

The Labor Commissioner’s Office learned of the potential violations in January 2019 after receiving a referral from the Chinese Progressive Association and Asian Americans Advancing Justice – Asian Law Caucus.

The investigation found that 22 servers and kitchen workers were not paid properly. The servers were paid hourly and the kitchen staff were paid a fixed salary that was below minimum wage and did not include overtime. The employer illegally kept tips left for the servers and did not pay servers split shift premiums when they were scheduled to work both the lunch and dinner shifts.

In April 2020, the Labor Commissioner issued wage assessments and penalties totaling over $1.4 million to the owners of Z & Y Restaurant Inc. The employer appealed the citations.

In September 2020, the Labor Commissioner filed a lawsuit to prosecute the restaurant owners for violations not covered by the citations, including the theft of tips, violations of California’s Paid Sick Leave law and record keeping violations. With the hearing on the citation appeal approaching, the employer reached a settlement with the Labor Commissioner that resolved the citations, the lawsuit, and pending wage claims that had been separately filed by four workers represented by the Asian Law Caucus.

Notification has been delivered to the current and former restaurant workers of their expected settlement payments and workers began receiving settlement payments with an average of approximately $73,000 per worker based on the number of hours worked during the audit period and the tips that were appropriated by the employer. The settlement also includes $9,550 in civil penalties payable to the state.

A significant amount of the payment due to workers in this case is from stolen tips,” added Labor Commissioner García-Brower. “Workers must be proactive to protect their rights. Keep track of the tips you think you should have received to help support your claim and when approaching your employer about this issue, document the conversation and have a witness.”

Neurosurgeon Acquitted in Pacific Hospital Kickback Case

The jury in the case of United States of America v. Dr. Serge Obukhoff, (Case No. CR:18-00140-JLS), issued a verdict of Not Guilty on all 35 counts of conspiracy and healthcare fraud contained in the Indictment, after a nearly three week federal criminal jury trial,

According to case documents, the case stemmed from allegations that Michael Drobot Sr., former owner of Pacific Hospital of Long Beach paid $2.3 million in kickbacks to Neurosurgeon Dr. Serge Obukhoff to induce the neurosurgeon to direct his patients to Paciific Hospital in violation of the anti-kickback statute, honest services fraud statute, conspiracy, wire fraud and mail fraud.

Additionally, the Indictment alleged that Dr. Obukhoff accepted kickbacks in the form of free rent and a paid medical directorship with Willow Medical Group as inducement to direct spinal surgeries to Monrovia Hospital. The indictment also includes honest services fraud and Travel Act charges. Obukhoff practiced out of various medical clinics in Southern California.

Defense attorneys countered that the defendant honestly held the belief that the $2.3 million was paid to him as part of an option agreement for a management company to buy his medical practice.

Additionally, Dr. Obukhoff was advised by the attorney for the management company, Michael Tichon, that the agreement was legal, valid and customary.

Dr. Obukhoff testified that he had done more than a 1000 surgeries at Pacific Hospital prior the option agreement and that he did not know that Michael Drobot Sr., and the healthcare company’s attorney Michael Tichon engineered a 15 year healthcare fraud conspiracy that raked in $500 million.

Dr. Obukhoff testified that he was lied to by the attorney and Michael Drobot. Dr. Obukhoff further testified that his directorship with Willow Medical Group was valid and that in fact he never sought out or received any kickbacks in the form of rent.

CMS Finds Dangerous Patient Care at Good Samaritan Hospital

In a scathing report leaked to NBC Bay Area’s Investigative Unit, federal health regulators blasted Good Samaritan Hospital management for failing to address “serious, systemic, and recurring issues” that put numerous patients in harm’s way.

Officials from the Centers for Medicare and Medicaid Services (CMS) warn the hospital will no longer be paid for taking care of Medicare patients unless the hospital corrects a series of deficiencies outlined in the 65-page report.

Health inspectors took aim at the hospital’s management – including its chief executive officer, chief medical officer and chief nursing officer – but also detailed staffing and training issues that led to mistakes and direct injury to patients. The report states management’s failures placed “13 of sampled 37 patients at risk for adverse events.”

This is the first time details of the CMS “Notice of Termination” against Good Samaritan Hospital are coming to light. NBC Bay Area first reported on the notice in July but did not have a copy of the report. The Investigative Unit requested the document multiple times from Good Samaritan Hospital, its parent company HCA Healthcare and federal regulators, but none of the agencies have released it. Over the weekend, NBC Bay Area obtained a copy through a hospital source and confirmed it with HCA.

Dr. Cheryl Damberg, a health services researcher at the non-profit RAND Corporation said that “Any time a hospital gets one of these notices, I think consumers should be concerned that the institution is not working to maintain the standards that the federal government has set forth,”

Officials from Good Samaritan Hospital and its parent company HCA Healthcare have declined multiple interview requests from NBC Bay Area over the past several months but said in a statement they’ve submitted a plan of correction that is currently under review by CMS.

We addressed every issue noted by CMS and we are ensuring Good Samaritan is in full compliance,” Good Samaritan spokesperson Janine De La Vega wrote in a statement. “We have full confidence we will meet the CMS requirements and retain our Medicare status. Our top priority is to be a strong partner with the San Jose community as we have been for the past 25 years and provide safe high-quality care to those we have the privilege of serving every day.”  

Beyond documenting leadership failures at the hospital, inspectors detailed a litany of other issues, including nurse-to-patient staffing ratios that were out of compliance with state mandates on multiple occasions earlier this year.

The lack of adequate staffing led to overburdened nurses and mistakes in care, including at least 11 missed patient assessments and at least four instances where medications were not administered to ICU patients according to physician orders, according to the report.

“The cumulative effect of these systemic problems resulted in the hospital’s inability to ensure the provision of quality health care in a safe environment,” the report states.

Regulators also called into question the hospital’s training of staff and its evaluation of its own nurses’ competencies. In one case, a nurse reported she was given a patient she was not qualified to care for.

In two other cases, regulators said there wasn’t any “formal re-education” of staff when patients who were involuntarily hospitalized because of a mental health crisis were able to harm themselves. One of those patients was left in the bathroom alone, according to the report, and another was inappropriately discharged.

COVID Comp Claims Spiked to 2,581 Cases in July

After trending down over the first half of this year and falling to a 16-month low of just 676 claims in June, the monthly tally of new COVID-19 claims in the California workers’ compensation system spiked to 2,581 cases in July, just shy of the combined total of 2,635 COVID claims recorded for the prior three months.

That translates to a nearly four-fold increase in one month, the biggest monthly gain since COVID-19 claim volume hit its peak in December 2020. Claims with June and July injury dates are still coming in, but California Workers’ Compensation Institute (CWCI) projections based on historical reporting patterns estimate that ultimately the COVID-19 claim count for July will hit 3,872 cases, or 4.8 times the projected total of 811 claims for June.

Notably, July was the first full month following the June 15 reopening of the California economy, a move that coincided with a wave of COVID-19 infections fueled by the emergence of the highly infectious Delta variant. The state’s reopening plan allowed most businesses to fully reopen and brought many Californians who had been working remotely back into offices and other worksites.

July was also the first full month following the June 17 adoption and implementation of revised emergency health and safety standards designed to protect workers from COVID-19. Those standards, adopted following contentious public meetings, apply to most California workers not covered by Cal/OSHA’s standard for aerosol transmissible diseases. Among other things, the revised standards allowed fully vaccinated employees to not wear face coverings (but required unvaccinated employees to mask up when in a room or vehicle with other employees) and eliminated the physical distance requirement in non-outbreak settings.

While the recent resurgence of California workers’ compensation COVID-19 claims has been broad-based, a CWCI analysis of June and July COVID claims data reveals that the extent of the surge varied by region and industry. Comparing June and July claim volume by region, the Institute confirmed that much of the July surge in COVID claims occurred in the state’s metropolitan job centers, led by Los Angeles County, which accounts for more than a quarter of all jobs in the state.

In June, COVID-19 workers’ comp claim volume in Los Angeles County had fallen to 128 cases, or 18.9% of the statewide total, ranking it behind the Central Valley (22.0%), the Bay Area (20.1%), and the Inland Empire/Orange County (19.4%). But in July, L.A. County’s COVID claim volume soared to 621 claims, nearly 5 times its June total, and it surpassed every other region of the state as its share of the statewide COVID claim count rose to 24.1%.

The review of COVID claims by industry found that while public safety/government workers continued to account for more claims than any other sector as their claim total increased from 144 claims in June to 546 claims in July, that growth rate was in line with the statewide increase, so their share of the COVID claim total remained at just over 21%. Meanwhile,

COVID claims among for health care workers were also up, increasing from 124 claims in June to 456 in July, but that was slightly less than the statewide growth rate, so the health care sector’s share of the statewide total dipped from 18.3% to 17.7%. The transportation sector, on the other hand, saw the biggest increase in its share of the COVID claims, as it went from 59 claims in June to 352 claims in July, a 6-fold increase that moved it ahead of both the retail and the food service sectors, making it the number 3 industry sector for COVID claims last month.

The public can view additional data on the latest California workers’ compensation COVID-19 claims data by using CWCI’s COVID-19/Non-COVID 19 Interactive Data Application.

So. Cal Telemedicine Doctor Arrested for Opioid Prescriptions

A High Desert physician remains in federal custody today after his arrest Wednesday on charges of illegally dispensing prescriptions for often-abused controlled substances – including opioid-based medications – during telemedicine sessions with “patients” from across the United States.

36 year old Dr. Raphael Tomas Malikian, who resides in Llano and Palmdale and called his medical practice Happy Family Medicine, was arrested Wednesday afternoon by special agents with the Drug Enforcement Administration.

An indictment naming Malikian was unsealed at his arraignment Thursday evening, when Malikian entered not guilty pleas and a United States Magistrate Judge ordered him detained pending trial, which is currently scheduled for October 5.

Malikian is charged in an 11-count indictment with illegally distributing narcotics “while acting and intending to act outside the usual course of professional practice and without a legitimate medical purpose.” The controlled substances that Malikian allegedly distributed are oxycodone, hydrocodone, alprazolam, promethazine and codeine.

The DEA investigation was prompted by multiple reports in February 2020 of suspicious prescriptions issued by Malikian. The indictment alleges specific incidents in which Malikian prescribed controlled substances without a medical purpose after seven telemedicine consultations – including one conducted entirely via text message – starting in April 2020 and continuing through July 2020. None of the consultations involved any physical exam or diagnostic tests, and the appointments lasted as little as 2 minutes and 20 seconds.

A federal judge on Thursday unsealed search warrants executed at Malikian’s residences in conjunction with his arrest. The affidavit in support of the search warrants outlines the DEA’s investigation, which included various undercover operations in which agents from the DEA and California DOJ posed as patients and received the prescriptions that form the basis of the indictment. The DEA agent who authored the affidavit concluded that Malikian “effectively sells prescriptions for controlled substances to patients upon request, and does so without obtaining a patient’s medical history or conducting a physical examination.”

According to the affidavit, an independent medical expert reviewed the interactions between Malikian and the undercover agents and “concluded that Malikian ‘did not thoroughly evaluate his patients before prescribing potent and potentially deadly medications, and had done so ‘without any regard to what is required of conscientious physicians in the United States before proceeding with controlled medications.”

A DEA investigator also reviewed patient records maintained by Malikian, which showed that Malikian saw patients across the United States and that about 43 percent of them shared common addresses, email addresses, “caregivers” or phone numbers with other patients. According to the affidavit, one of those patients was a convicted narcotics trafficker and another was stopped at Los Angeles International Airport while carrying over $19,000 in cash and approximately 1,764 Hydrocodone and Alprazolam pills.

WCAB to Decide 4850.4(f) Disability Overpayment Jurisdiction

Rebecca Gage sustained injury to the lumbar spine while employed as a deputy sheriff by the County of Sacramento.

In 2015, she requested advance disability pension payments per section 4850.4. Defendant made payments, but applicant contended that the payments were unreasonably delayed and sought penalties per section 5814. (Lab. Code, § 5814.)

The issue proceeded to trial. In his August 6, 2015 Findings of Fact and Order (F&O), the WCJ determined that advances made under section 4850.4 are compensation pursuant to section 3207 and subject to penalties under section 5814.

In a subsequent Opinion and Decision After Reconsideration, a split panel held that advances for a disability pension paid under section 4850.4 are not compensation and consequently not subject to the penalty provisions of section 5814. The F&O was rescinded and a new decision issued with the majority’s finding regarding this dispute.

The Court of Appeal reversed, and agreed with applicant that advance disability pension payments are compensation under section 3207 and the Appeals Board thus has jurisdiction to issue penalties per section 5814 for an unreasonable delay of payments made pursuant to section 4850.4. (Gage v. Workers’ Comp. Appeals Bd. (2016) 6 Cal.App.5th 1128 [81 Cal.Comp.Cases 1127].)

A Stipulation and Award issued on August 24, 2018 and the the parties resolved all penalties to date.

On February 16, 2021, defendant filed a DOR seeking an order compelling applicant to participate in the resolution process of Labor Code section 4850.4(f). They claimed that a mediation was scheduled to resolve the dispute, but Gage did not attend and subsequently unresponsive to communications.

4850.4(f) provides that “if an employee’s disability application is denied, the local agency and the employee shall arrange for the employee to repay any advanced disability pension payments received by the employee pursuant to this subdivision.”  And …”the local agency may take reasonable steps, including litigation, to recover the payments advanced.”

The WCJ ruled that “This request is denied because the WCAB does not have jurisdiction over this process, despite the Court of Appeal decision in this case…. Defendant further requests that the court set a hearing over the question of jurisdiction in order to create a record, but this appears to be a pure legal question for which no record is necessary and so this request is likewise denied.”

The WCAB panel granted reconsideration of this Order in the newest panel decision of Gage v County of Sacramento ADJ8010054 (2021).

Decisions of the Appeals Board “must be based on admitted evidence in the record.” Furthermore, decisions of the Appeals Board must be supported by substantial evidence. Additionally, all parties to a workers’ compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. Additionally, a determination akin to summary judgment is not permitted in workers’ compensation proceedings. (See Cal. Code Regs., tit. 8, former § 10490, now § 10515 (eff. Jan. 1, 2020).)

The matter was remitted to provide both parties with an opportunity to present their arguments regarding this dispute and create an evidentiary record.

mRNA Experts Claim COVID Herd Immunity Unlikely

Dr. Robert Wallace Malone is an American virologist and immunologist. His work has focused on mRNA technology, pharmaceuticals, and drug repurposing research.

He was a pioneer who helped develop mRNA vaccine technology, raised concerns about potential long-term autoimmune issues and other complications potentially arising from mRNA jabs. He showed concerns about the possibility that ‘imperfect’ vaccines might actually help foster more virulent COVID variants due to a phenomenon calledADE”- antibody-dependent enhancement. Essentially, what doesn’t kill the virus makes it stronger.

He has been highly criticized during the beginning of the COVID pandemic for these views.

His views are gaining traction. A British scientist and academic named Professor Sir Andrew Pollard, who is the director of the Oxford Vaccine Group. During a briefing, Sir Pollard warned Parliament that the UK likely won’t ever achieve herd immunity, thanks to the delta variant.

In remarks that risked undermining the government’s vaccination campaign, Sir Pollard, a professor of pediatric infection and immunity, warned Parliament on Tuesday that achieving herd immunity is likely “not a possibility” thanks to variants like delta.

Recently, a group of scientists estimated that the threshold for herd immunity might now be as high as 90% due to the delta variant. According to Pollard, we’re learning for the first time that herd immunity is magical thinking – and has always been magical thinking.

Since those who are vaccinated can still be infected by variants, “there is virtually nothing the UK can do” to eradicate COVID completely.

“We know very clearly with coronavirus that this current variant, the Delta variant, will still infect people who have been vaccinated, and that does mean that anyone who’s still unvaccinated, at some point, will meet the virus,” Pollard said.

He said it was unlikely that herd immunity will ever be reached, saying the next variant of the novel coronavirus will be “perhaps even better at transmitting in vaccinated populations.”

Pollard also shared what sounded like a subtle criticism of masks by saying that “We don’t have anything which will stop that transmission to other people.” As an example, he pointed to Israel, which saw new cases and hospitalizations nearly disappear before the new variant took hold, causing cases and hospitalizations to surge once again. Now, there have even been a handful of patients who have tested positive even after receiving their third dose of the Pfizer jab (which the US has only just approved for a third dose as well).

Even the White House is finally acknowledging that vaccines aren’t nearly as effective as they once believed, which is why the FDA has decided to approve the third dose. “I think everybody believes this wanes over time, the question is to what extent,” a senior Biden official told Axios. “Nobody wants to be behind the eight-ball here. We want to catch it before there’s an issue, and that’s why there is very intense scrutiny.”