Category: Daily News

Since 2018, the U.S. Department of Labor has seen a 69 percent increase in children being employed illegally by companies. In the last fiscal year, the department found 835 companies it investigated had employed more than 3,800 children in violation of labor laws.

As the U.S. Department of Labor’s Wage and Hour Division and Office of the Solicitor continue to find serious illegal employment practices in the meat and poultry processing industries, a California poultry processor and supplier to supermarkets and food distributors has agreed to pay nearly $3.8 million in back wages, damages and penalties after the department found the company endangered young workers recklessly in Southern California.
Division investigators found that The Exclusive Poultry Inc. and related companies established by owner Tony Bran employed children as young as 14 years old to debone poultry using sharp knives and operate power-driven lifts to move pallets. The children also worked excessive hours in violation of federal child labor regulations. The company also retaliated against employees for cooperating with investigators by cutting their wages.

Bran and The Exclusive Poultry are subject to a consent judgment entered by the U.S. District Court for the Central District of California on Nov. 16, 2023, after an investigation and litigation by the department. The investigation included two poultry plants controlled by Bran in City of Industry and La Puente, California.  Investigators found that Bran set up several front companies to employ workers at these plants. Those front companies were Meza Poultry LLC, Valtierra Poultry LLC, Sullon Poultry Inc. and Nollus’s Poultry LLC. The department has also obtained consent judgments against these companies and their owners.

The judgments resolve the lawsuit filed by the department based on the division’s findings that, in addition to their unlawful employment of children and retaliation against workers, the employers failed to pay workers their required wages.

Specifically, the division determined that Bran, The Exclusive Poultry and their associated companies willfully failed to pay required overtime wages to their employees, paying them either a piece rate or a straight time hourly rate even when they worked 50 or 60 hours per week. Investigators also found the employers failed to maintain required records when they intentionally omitted workers from payroll records.

Upon substantiating the child labor and overtime violations, the department’s Office of the Solicitor obtained from the U.S. District Court a temporary restraining order and an injunction to prevent Bran and The Exclusive Poultry from shipping into commerce any “hot goods,” in this case, poultry produced in violation of the Fair Labor Standards Act and any goods from a location where the department observed child labor.

As directed by the consent judgment, Bran and The Exclusive Poultry must pay $3.5 million in back wages and damages to affected workers. Of that total, $300,000 in punitive damages and $100,614 in back wages will be paid to workers who faced retaliatory conduct. In addition, the employers must pay $201,104 in civil money penalties assessed by the division for the child labor and willful violations.

The judgment also requires Bran and The Exclusive Poultry to retain a monitor for three years to ensure future compliance and to show a hiring preference for those workers they fired following the department’s search of the poultry plants. Under that preference, Bran and The Exclusive Poultry must offer these workers employment first before hiring others.

The division’s West Covina District Office conducted the investigation and the department’s Office of the Solicitor in Los Angeles filed the complaint and secured the consent judgments. In conducting the enforcement action, the department worked with the Los Angeles County Office of Immigrant Affairs and its community partners, who provided support services to workers, and with the U.S. Marshals, who assisted with the execution of a search warrant at the two poultry processing plants.

The department is seeking any current or former employees of The Exclusive Poultry, Meza Poultry, Valtierra Poultry, Sullon Poultry or Nollus’s Poultry who believe they may be owed back wages. These employees should contact the West Covina District Office at (626) 966-0478.

The consent judgment is part of the department’s ongoing effort to combat child labor abuses and wage theft in the poultry and meat processing industries. The action follows the division’s investigation of Packers Sanitation Services Inc. and its assessment of $1.5 million in penalties for child labor violations in February 2023. In that case, investigators discovered that the company employed at least 102 children – from 13 to 17 years of age – in dangerous occupations and had them working overnight shifts at 13 meat processing facilities in eight states.

In March 2023, the department recovered $353,141 in back wages for 322 workers in Alabama and North Carolina who were denied overtime wages. Between 2020 and 2023, the department obtained judgments against three La Puente poultry processing companies requiring them to pay more than $1.2 million for denying overtime wages to 113 workers deliberately and using intimidation to hide their wage thefts. Investigators are also probing into the death of a 16-year-old worker at a Mississippi poultry plant.

James Suess, was employed as a police corporal by the City of Pomona. In May 2016, the Pomona Police Department Internal Affairs Unit received a citizen complaint against Suess, filed by Vasken Asadourian, a relative of one of Suess’s neighbors, alleged that Suess assaulted him.

On July 9, 2016, Suess’s neighbor, Neshan Boymoushakian, filed another complaint against Suess regarding his harassment of his family. Suess was notified of both complaints and was interviewed during both investigations, and was placed on paid administrative leave pending completion of these investigations.

On June 7, 2017, the City served Suess with a Notice of Intent to Terminate on the basis of misconduct including battery, unabated harassment of his neighbor, and dishonesty during his interviews.

Suess requested a pre disciplinary meeting with his department, which was held on July 18, 2017. At that meeting, Suess suggested he “suffered physical, mental and emotional trauma’ and need[ed] proper care and treatment.” While it was unclear to Pomona Police Chief Paul Capraro whether Suess was suggesting his conduct was the result of a disability, he “did not provide any documentation substantiating [his] alleged disability or request any accommodations related to this incident near the time of incident or early in the investigation.”

On August 3, 2017, the City notified Suess he was terminated from his employment as a police corporal effective August 4, 2017. The City provided Suess with notice of his right to appeal the decision within 15 days. Suess did not appeal.

In April 2017, several months before his termination, Suess filed a workers’ compensation claim based on his involvement in a 2012 officer-involved shooting incident which occurred on February 26, 2012. After a high-speed chase on that date, a suspect pointed a shotgun at Suess and another police officer from a different jurisdiction (West Covina) who pursued the suspect into Pomona. The other officer shot and disarmed the suspect. The suspect was later convicted of attempted murder of Suess and other officers.

Suess did not request psychological services at the time. He continued to perform his duties as a police officer until his off duty misconduct led to disciplinary proceedings in 2016. His workers’ compensation claim was “denied based on a violation of [the] statute of limitations L[abor] C[ode ]5410, and the lack of current substantial medical evidence.” As with his termination, Suess did not appeal the denial of his workers’ compensation claim.

In April 2019, twenty months after his termination of employment from the City, Suess filed a disability retirement election application with respondent CalPERS based on posttraumatic stress disorder, among other disabling conditions. CalPERS determined he was “not eligible for disability retirement.” Accordingly, on July 22, 2019, CalPERS denied Suess’s application. An ALJ affirmed the denial of his CalPERS claim after an administrative appeal challenging CalPERS’s decision.

His petition for a writ of mandate was denied by the Superior Court. And the decision of the trial court was affirmed by the Court of Appeal in the unpublished case of Suess v. California Public Employees Retirement System -G062730 (December 2023).

On appeal Suess contends that the ALJ misapplied the Haywood (Haywood v. American River Fire Protection District (1998) 67 Cal.App.4th 1292) and Smith cases (Smith v. City of Napa (2004) 120 Cal.App.4th 194), which Suess argues “were inapposite to this case.” The Court of Appeal disagreed.

As explained in Haywood, “where, as here, an employee is fired for cause and the discharge is neither the ultimate result of a disabling medical condition nor preemptive of an otherwise valid claim for disability retirement, the termination of the employment relationship renders the employee ineligible for disability retirement . . . .”

“Nor are disability retirement laws intended as a means by which an unwilling [-to-faithfully-and-competently-perform] employee can retire early in derogation of the obligation of faithful performance of duty. The pension roll is a roll of honor – a reward of merit, not a refuge from disgrace; and it would be an absurd construction of the language creating it to hold that the intention of the Legislature was to give a life annuity to persons who, on their merits, as distinguished from mere time of service, might be dismissed from the force for misbehavior.”

In Smith, the appellate court held that a terminated employee may qualify for industrial disability retirement if he or she had a “matured” right to do so before his or her termination for cause.

Smith recognized an exception to the rule set forth in Haywood: “[c]onceivably, there may be facts under which a court, applying principles of equity, will deem an employee’s right to a disability retirement to be matured and thus survive a dismissal for cause.” But Smith held the disability evidence must be “unequivocal” to constitute a matured right.

Suess claims Smith and Haywood are distinguishable because he was “deprived of the ability to present medical evidence of his condition [by] a violation by the City [of] its own policy regarding the provision of professional counseling to officers following an officer-involved shooting.” Suess suggests he would have had more compelling evidence of a disabling PTSD condition if the City had adhered to that policy. He also suggests CalPERS “abused its discretion” in denying his application for disability retirement “without obtaining medical evidence available to it from Respondent City of Pomona.”

The Court of Appeal again disagreed. The ALJ correctly observed in her ruling, “an applicant for disability retirement has the burden of proving . . . that he is entitled to it.” (Glover v. Board of Retirement (1989) 214 Cal.App.3d 1327, 1332.) Suess did not establish an unequivocal matured right to disability retirement under Smith where his own testimony indicated he was not incapacitated by the 2012 shooting.

The U.S. Department of Health and Human Services (HHS), through the Office of the National Coordinator for Health Information Technology (ONC), announced that nationwide health data exchange governed by the Trusted Exchange Framework and Common AgreementSM (TEFCA) is now operational.

ONC has led a multi-year, public-private process alongside its Recognized Coordinating Entity®, The Sequoia Project, Inc., to implement TEFCA, which was envisioned by the 21st Century Cures Act. As a result, patients will have increased access to their records, and health care providers and plans can improve their secure exchange of electronic health information.

The interoperability framework, called TEFCA, was mandated by the 21st Century Cures Act back in 2016 and was designed to create an infrastructure to enable data sharing between health information networks. The framework provides the policies, procedures and technical standards necessary to exchange patient records and health information between providers, state and regional health information exchanges and federal agencies.

“In many ways, I feel like we’re watching the Big Bang occur in 2023,” said Health and Human Services (HHS) Secretary Xavier Becerra said during an event held at HHS headquarters in Washington, D.C. on Tuesday.

Five organizations were officially designated as Qualified Health Information Networks (QHINs) during the HHS event on Tuesday – eHealth Exchange, Epic Nexus, Health Gorilla, KONZA and MedAllies. Those five organizations have gone live with TEFCA exchange, and two others are completing their implementations

These designated QHINs can immediately begin supporting the exchange of data under the Common Agreement’s policies and technical requirements. QHINs are the pillars of TEFCA network-to-network exchange, providing shared services and governance to securely route queries, responses, and messages across networks for eligible participants including patients, providers, hospitals, health systems, payers, and public health agencies.

QHINs are the pillars of TEFCA network-to-network exchange, providing shared services and governance to securely route queries, responses, and messages across networks for eligible participants including patients, providers, hospitals, health systems, payers and public health agencies.

Epic customers, including 498 hospitals, have already pledged to join TEFCA.”As of this week, over 200 hospitals and around 3,000 clinics that use Epic plan to be early adopters of this framework,” Rob Klootwyk, director of interoperability for Epic Nexus, a subsidiary of Epic,said during the event. “At full rollout, we do expect to help around 2,700 hospitals and 70,000 clinics go live on TEFCA.”

In a Health Affairs Forefront blog, Micky Tripathi, Ph.D., national coordinator for health information technology and Mariann Yeager, CEO of The Sequoia Project, said TEFCA, going live marks “one of the most important milestones in our nation’s digital health history.”

“In February 2023 we announced that TEFCA would be operational by the end of the calendar year, and we are delighted to achieve this goal” said Micky Tripathi, Ph.D., national coordinator for health information technology. “This would not have happened without tremendous stakeholder support, considerable investment of resources and expertise by the QHINs, and the hard work of the RCE and ONC staffs.”

“Designating these first QHINs is just the beginning,” said Mariann Yeager, CEO of The Sequoia Project and RCE lead. “Now, we hope to see the rapid expansion of TEFCA exchange as these pioneering networks roll-out the benefits of TEFCA to their customers and members, while additional QHINs continue to onboard.“

“Collectively, these QHINs have networks that cover most U.S. hospitals and tens of thousands of providers; they process billions of annual transactions across all fifty states. With these QHINs working together under TEFCA, their users will now be able to connect with each other, regardless of which network they’re in,” Tripathi and Yeager wrote.

Common Agreement Version 2.0, which is anticipated to include enhancements and updates to require support for Health Level Seven (HL7®) Fast Healthcare Interoperability Resources (FHIR®) based transactions, is actively under development and scheduled to be adopted by the QHINs within the first quarter of 2024.

Attendees at the 2023 ONC Annual Meeting in Washington, DC on December 14, 2023, will have the chance to hear two plenary sessions providing TEFCA updates. Learn more at oncannualmeeting.com

Matthew Vann, a firefighter with the San Francisco Fire Department (SFFD), responded to an emergency on Spear Street between Market Street and Mission Street in the City and County of San Francisco.

Louis Yu, a bus driver with the San Francisco Municipal Transportation Agency (SFMTA), then drove a bus through the location of the active emergency. The bus went over a firehose, which became entangled with the bus’s wheels and stretched until it broke off the fire engine it was attached to.

When the firehose broke away, it hit Vann’s legs, sweeping him off his feet and causing him to slam backwards onto the ground. His helmet flew off, and the back of his head struck the street surface. As a result, he sustained catastrophic injuries, including a traumatic brain injury, a fractured left clavicle, an internal hemorrhage in his right eye, and damage to his throat and vocal chords.

On November 4, the City sent Vann a “Notice Regarding Disability Pay/Labor Code section 4850 benefits.” The notice stated that the “City and County of San Francisco is handling Van’s workers’ compensation claim on behalf of SF Fire Dept.,” and that he was receiving workers’ compensation benefits for the injuries he sustained in the November 2, 2020 incident.

On November 8, Van filed a form complaint against the City and Yu, alleging causes of action for motor vehicle negligence, general negligence, and negligence per se. The complaint is sparse on detail: it alleges “Defendants negligently operated an SF Muni Coach 8800,” before briefly describing how the incident caused appellant’s injuries, and also alleges “Defendants violated [Vehicle Code sections 21707 and 21708].”

Defendants filed a demurrer on various grounds, including that the Workers’ Compensation Act (§ 3200 et seq.) provides the exclusive remedy for Vann’s claims against the City as his employer (§§ 3600, subd. (a), 3602, subd. (a)), and against Yu as his co-employee (§ 3601, subd. (a)). The the trial court issued an order sustaining the demurrer to the complaint without leave to amend.

The Court of Appeal affirmed the trial court in the published case of Vann v. City and County of S.F. -A165231 (December 2023).

Section 3600, subdivision (a) provides that, with exceptions not relevant here, an employer’s liability to pay compensation under the Workers’ Compensation Act is “in lieu of any other liability whatsoever” if specified “conditions of compensation concur . . . .” (§ 3600, subd. (a); Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal.5th 993, 1006.) So, when the statutory conditions for recovery are met, the employer is immune from civil damages liability for on-the-job injuries because workers’ compensation is the injured employee’s “exclusive remedy.” (§§ 3600, 3601, 3602, subd. (a).)

A parallel exclusive remedy provision is section 3601, subdivision (a), which “prohibits actions against coemployees for injuries they cause when [acting within the scope of their employment.]” (Hendy v. Losse (1991) 54 Cal.3d 723, 730.)

As to Yu, Vann asserted he and Yu were not coemployees because (1) Vann was employed by San Francisco Fire Department (SFFD), while Yu was employed by San Francisco Municipal Transportation Agency,(SFMTA), and (2) SFFD and SFMTA are separate legal entities akin to separate businesses within a multiunit corporate enterprise. As to the City, Vann argued there were no facts at that procedural juncture to support the conclusion that the City, as opposed to SFFD, was his employer as a matter of law. His arguments treat the City, SFMTA, and SFFD as three separate legal entities.

Bauer v. County of Ventura (1955) 45 Cal.2d 276, 288-289 (Bauer), which both parties cite, is instructive on whether a public entity is independent or a subsidiary of another entity. The Supreme Court rejected the “assumption that the district is a governmental agency separate and distinct from the county,”

Factors that may be considered in determining if an entity is independent include whether there is “[a]n express statutory declaration that the entity is a body corporate and politic”; whether the entity has “[a] governing body separate from that of the city, county, or district”; or whether it has “[s]tatutory power to own property, levy taxes, or incur indebtedness in its own name.” (California Governmental Tort Liability Practice (Cont.Ed.Bar 4th ed. Cal. 2023) § 3.5, citing Bauer, supra, 45 Cal.2d at pp. 288-289; Johnson v. Fontana County Fire Protection Dist. (1940) 15 Cal.2d 380, 385’387; Elliott v. County of Los Angeles (1920) 183 Cal. 472, 474-475; Anaheim Sugar Co., supra, 181 Cal. at pp. 217−220.)

The Court of Appeal concluded that additional case authorities and arguments “compels the conclusion that because SFFD and SFMTA are merely parts of the same entity, the City, it is the City that effectively employs both appellant and Yu. It follows that workers’ compensation provides the exclusive remedy for appellant’s claims against the City as his employer (§§ 3600, subd. (a), 3602, subd. (a)), and against Yu as his coemployee (§ 3601, subd. (a)). To the extent appellant attempts to draw an analogy between SFMTA and SFFD and two separate business entities within a multiunit corporate enterprise, such an analogy was rejected in Walker and Colombo. (See Walker, supra, 97 Cal.App.2d at pp. 903-904; Colombo, supra, 3 Cal.App.4th at p. 598.) And we reject it here.”

Dr. Gary Martinovsky graduated from the University of California, Berkeley, as a bachelor of science and from Stanford University as a medical doctor. He completed a residency in anesthesiology and acute care at Stanford School of Medicine, and a postgraduate fellowship in Pain Medicine at the University of California, Davis. He holds board certification in Pain Medicine from the American Board of Anesthesiology.

NBC Bay Area reports that Dr. Gary Martinovsky was first arrested on Thursday, March 20, 2014 and charged with insurance fraud and unlawful dispensing of medicine. About half of his patients at the time were injured workers, and investigators claimed he was bilking the California workers’ compensation system.

Inspectors for the Alameda County District Attorney’s Office, the agency behind an undercover investigation into Martinovsky, accused him of running a medical mill and using injured workers for his own financial gain. They would claim in court documents that his office billed an insurance company for services he never performed and that Martinovsky had a “cavalier attitude” toward dispensing drugs.

But the case against Martinovsky was dismissed in Alameda because it had been filed in the wrong county.

Prosecutors then filed a a single felony count for violating Cal. Penal Code § 550(a)(7) (knowingly submitting a claim for a health care benefit not used by, or on behalf of, the claimant) was filed in Contra Costa County Superior Court. During the preliminary hearing, which was not completed, the charge was reduced to a misdemeanor. That case was dismissed after Martinovsky completed a one-year diversion program. He never entered a guilty plea or admitted guilt of any kind.

In 2016 Dr. Martinovsky filed a civil rights lawsuit in federal court against the Alameda County District Attorney’s Office and an investigators for the Department of Insurance. He alleged that because “of the search of the clinic, and the defamatory statements made by Defendants, word spread quickly through the regional medical community, legal professionals and insurance industry that Dr. Martinovsky had been arrested and charged with felony drug and insurance fraud charges. The effect was immediate and devastating for Plaintiffs’ otherwise spotless reputation and growing medical practice, and caused severe emotional distress”.

The federal civil rights case was resolved and dismissed with prejudice based upon a stipulation and a settlement between the parties in May 2018 for undisclosed terms.

Now, on December 7, 2023, the San Francisco District Attorney Brooke Jenkins announced that a 51 year old Doctor Gary Martinovsky, who lives in San Francisco; and his 68 year old office assistant and mother-in-law, Raisa Rikoshinsky, who lives in San Bruno; and one of the businesses he owns, Integrated Pain Care (IPC), have been criminally charged with 40 violations of insurance fraud under (PC 550(a)(5), PC 550(a)(7), and PC 550(a)(8)), for fraudulent billing, double billing, and billing for services not rendered.

Gary Martinovsky MD is listed as a QME in Anesthesiology, and also in Pain Managment. DWC Medical Unit records reflect 10 Northern California Offices for each specialty, or a total of 20 addresses. According to the California Department of Industrial Relations, Dr. Martinovksy has 3,005 liens worth $29,443,467 outstanding as of October 2023.

As alleged in court documents in this newest case, Dr. Martinovsky, IPC, and Raisa Rikoshinsky allegedly filed liens with the State of California Division of Workers Compensation asking for payment of bills which had already been paid in full or in part.

California’s Workers Compensation law allows a doctor to file a lien against an insurance provider for payment for services rendered to an injured worker, where the bill has not been paid.

In support of the filed liens, prosecutors allege the defendants submitted fraudulent documents and/or failed to disclose that they had already received payments for the billed services. In addition, Dr. Martinovsky and IPC billed three insurers for services not rendered, by claiming $625 numerous times for services not provided to injured workers.

In terms of number of liens filed from 2022 to the present,  prosecutors claim Integrated Pain Care was second in the State of California only to the Employment Development Department, the state agency that administers California’s Unemployment Insurance, Disability Insurance, and Paid Family Leave programs and maintains records for more than 19 million workers.

Dr. Martinovsky and Ms. Rikoshinksy are scheduled to be arraigned on January 12, 2024, at 9A in Department 10 at the Hall of Justice. If convicted of all charges, Dr. Martinovsky and Ms. Rikoshinsky each face over five years in State Prison.

This case was developed through an investigation conducted by the San Francisco District Attorney’s Office Economic Crimes Unit, with the California Department of Insurance assisting in the arrests.

Although charges have been filed, this remains an active investigation. Anyone with information is asked to call the San Francisco District Attorney’s Investigations Tip Line at 1-628-652-4362. You may remain anonymous.