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Category: Daily News

Double Dipping Santa Rosa Injured Worker Convicted

Douglas Satre, 38, of Santa Rosa pleaded guilty to insurance fraud and paid more than $14,000 in restitution and additional fines to the California Department of Insurance.

Satre was sentenced to a year of probation, 30 days in jail, required to perform 40 hours of community service and complete a theft awareness class.

Satre allegedly slipped and fell in a bathroom while working for a telecom company in San Rafael. He then filed a workers’ compensation insurance claim and began receiving temporary total disability payments as well as treatment through multiple medical professionals across Napa and Marin Counties.

Marin County District Attorney’s Office filed charges against Satre after a Department of Insurance investigation revealed that Satre was collecting disability payments while also working for a new company despite telling medical professionals he was unable to work due to the severity of his injuries, even using a cane at his appointments.

In total, Satre collected disability payments and a paycheck from his new employer for more than six months.

“We were happy to see Mr. Satre take responsibility at an early stage of these proceedings and work diligently to repay the victim,” said Marin County Deputy District Attorney Sean Kensinger.

“Unfortunately, when an employee commits workers’ compensation fraud, the impact of that fraud ripples beyond just their employer and can result in increased premium costs for employers throughout the state. For this reason, the identification, investigation and prosecution of workers’ compensation fraud remains a priority for the Marin County District Attorney’s Office.”

Santa Clarita Man Sentenced for $1.8M COVID-Relief Funds Fraud

A Santa Clarita Valley man was sentenced to 51 months in federal prison for scheming to fraudulently obtain approximately $1.8 million in COVID-19 relief guaranteed by the Small Business Administration (SBA) through the Economic Injury Disaster Loan (EIDL) program and the Paycheck Protection Program (PPP).

Hassan Kanyike, 30, of Santa Clarita, was sentenced by United States District Judge Virginia A. Phillips, who also ordered him to pay a $20,000 fine and $1,302,550 in restitution to the SBA and four victim lenders. Kanyike pleaded guilty on March 29 to one count of wire fraud.

From April 2020 to June 2020, Kanyike submitted six fraudulent PPP loan applications and two fraudulent EIDL applications. The applications sought funds to purportedly pay the salaries of employees whom he claimed worked for two of his businesses. Kanyike successfully obtained approximately $1 million through four PPP loans, and another $300,000 through two EIDL loans.

In support of the fraudulent PPP loan applications, Kanyike submitted fake federal tax filings and payroll reports for a used-car business, the Van Nuys-based Falcon Motors. For example, in one loan application, Kanyike falsely claimed the business had 26 employees and an average monthly payroll of $168,000, and he submitted a fabricated IRS tax form claiming Falcon Motors had paid $2,022,300 to employees in 2019.

In reality, Falcon Motors had no employees on payroll. Kanyike further admitted that he obtained additional Employer Identification Numbers from the IRS in April and May 2020 so he could apply for multiple loans for the same used-car business. Kanyike then used a substantial portion of the PPP loan proceeds for his own personal benefit.

Kanyike schemed to fraudulently obtain eight loans totaling approximately $1.8 million, of which six loans worth a total of $1,302,550 were approved.

At the time of his arrest in December 2020, Kanyike had transferred approximately $762,000 to Uganda, his country of citizenship, from one of the business accounts that had received the loan proceeds, in violation of the terms of the PPP and EIDL program.

Homeland Security Investigations and the Treasury Inspector General for Tax Administration investigated the case.

Assistant United States Attorney Richard E. Robinson of the Major Frauds Section and Assistant Chief William Johnston of the Criminal Division’s Fraud Section at the Department of Justice prosecuted this case.

OSHA Ordered to “Take No Steps” to Enforce Vaccine Mandate

At Biden’s direction, the OSHA issued a rule earlier this month requiring U.S. employers with 100 or more workers to ensure their workers are fully vaccinated against COVID-19 or undergoing weekly tests for the virus by Jan 4. Businesses that don’t comply face thousands of dollars in fines.

The rule prompted a slate of legal challenges from at least 27 states as well as business and religious groups who argue the mandate is unconstitutional. Biden and other federal officials argue the mandate is necessary to end the COVID-19 pandemic and fully reopen the economy.

A few days later, the 5th U.S. Circuit Court of Appeals granted an emergency stay of the requirement that those workers be vaccinated by Jan. 4 or face mask requirements and weekly tests. The Federal Government was ordered to respond to the motion for a permanent injunction by 5:00 PM on Monday, November 8 and the petitioners in the case were ordered to file any reply by 5:00 PM on Tuesday, November 9.”

After reviewing the responses, the appeals court reaffirmed its decision Friday to enact a stay on President Biden’s workplace vaccination mandate. The Fifth Circuit Court of Appeals ordered OSHA to “take no steps to implement or enforce the Mandate until further court order.” The decision was the latest development in what is expected to be a lengthy legal battle over the mandate’s legality.

The court commenced it opinion by noting that “in its fifty-year history, OSHA has issued just ten ETSs. Six were challenged in court; only one survived. The opinion first considered whether the petitioners’ challenges to the Mandate are likely to succeed on the merits. It concluded that for “a multitude of reasons, they are.”

One example is “the Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat).”

OSHA cannot possibly show that every workplace covered by the Mandate currently has COVID-positive employees, or that every industry covered by the Mandate has had or will have “outbreaks.

The Mandate is staggeringly overbroad. Applying to 2 out of 3 private-sector employees in America, in workplaces as diverse as the country itself, the Mandate fails to consider what is perhaps the most salient fact of all: the ongoing threat of COVID-19 is more dangerous to some employees than to other employees.”

The court went on to say “It is critical to note that the Mandate makes no serious attempt to explain why OSHA and the President himself were against vaccine mandates before they were for one here.”

“It lastly bears noting that the Mandate raises serious constitutional concerns that either make it more likely that the petitioners will succeed on the merits…. The Commerce Clause power may be expansive, but it does not grant Congress the power to regulate noneconomic inactivity traditionally within the States’ police power.”

“Second, concerns over separation of powers principles cast doubt over the Mandate’s assertion of virtually unlimited power to control individual conduct under the guise of a workplace regulation.”

City of Oroville and Other Governments Reject COVID Mandates

As mandates continue to come down from the state, local governments are taking a stand by passing resolutions to avoid COVID related mandates.

The East Bay Times reports that six of the seven City of Oroville council members voted to make Oroville a Constitutional Republic City.

Vice Mayor Scott Thomson, who requested the resolution, says “What we are doing is protecting our citizens’ rights as much as we can on the local level.

“In a way, we are acting as a sanctuary city for our citizens and their rights and freedoms protected by the U.S. and state constitutions,” he added. “Gavin Newsom modeled this type of declaration for us when he declared San Francisco a sanctuary city for what he believed to be overreach by the federal government against his citizens.”

Thompson requested the measure, which was passed 6-1 by the city council on Nov. 2. The resolution is intended to allow the city to opt out of enforcing “any executive orders issued by the state of California or by the United States federal government that are overreaching or clearly violate our constitutionally protected rights.”

And in neighboring Nevada, the Nevada Independent reports that Lyon County became the latest rural county to declare an economic emergency and decline to enforce the governor’s COVID-19 directives on the basis that they hurt businesses.

The county of about 58,000 people joins the rural resistance along with White Pine, Elko and Eureka counties, which are less populous.

“It’s very important the rural counties of our great state to be united with one message going forward,” said Lyon County Commissioner Ken Gray, who spearheaded the effort. “We must stand together as one to face the abuses of our civil liberties which have taken place and stop them from going any further. Instead of working with the local government of Nevada as he should, the governor has chosen to ignore them and their residents.”

And not far away in Oklahoma, The Oklahoman reports that in one of his first acts as the head of the Oklahoma National Guard, new Adjutant General Thomas Mancino ordered that no members of the Oklahoma National Guard be required to take a COVID-19 vaccine.

The memo obtained by The Oklahoman also notes “no negative administrative or legal action will be taken” against guard members who refuse the COVID-19 vaccine.

And Courthouse News reports that Tennessee Governor Bill Lee signed sweeping restrictions on Covid-19 safety measures into law late Friday following a whirlwind three-day special legislative session at the tail end of last month.

The restrictions, which affect the authority of schools, health officials and private businesses, have been met with pushback from leaders in those communities and are expected to be met with legal challenges.

Some of the restrictions under the new legislation include prohibiting businesses that do not receive federal funds from requiring employees to receive a Covid-19 vaccine or request proof of it. The rule also applies to government agencies and public schools.

Court of Appeal Clarifies Math of Subrogation Recoveries

In 2013 Salvador Guzman rear-ended Mitchell Hunter Oakes’ vehicle. Oaks employer’s workers’ compensation insurance carrier, Liberty Insurance Corporation, paid $256,631.76 for his treatment.

Oaks filed a civil action against Guzmman and his employer Progressive Transportation Services Inc. Liberty Mutual filed a complaint in intervention, seeking to recover against any judgment a lien for workers’ compensation benefits paid to plaintiff, as authorized by Labor Code section 3852. Liberty subsequently assigned its $256 thousand workers’ compensation lien to defendants and was dismissed from the case.

In November 2015, defendants served an offer to settle under Code of Civil Procedure section 998 for $200,000. Plaintiff rejected the offer.

Before the jury trial commenced the parties stipulated that a workers’ compensation lien existed in the amount of $256,631.76. The jury returned a verdict of $115,000 in plaintiff’s favor, and the trial court entered an initial judgment for that amount in plaintiff’s favor.

Plaintiff then filed a motion for attorney fees and litigation expenses under Labor Code section 3856, subdivision (b), claiming a $50,600 fee (44 percent of the jury verdict pursuant to his contingency agreement with his attorney), and $28,343.52 in costs. Defendants opposed the motion for fees and moved to tax plaintiff’s postoffer section 998 costs, arguing he should not recover fees and postoffer costs because the jury verdict did not exceed defendants’ section 998 offer.

Although the trial court noted that Labor Code section 3856 required costs to be paid from the judgment, the court added plaintiff’s attorney fees and allowable costs to the jury’s $115,000 verdict rather than subtracting them from that amount. The court calculated plaintiff’s award as “$115,000 + $50,600 + $475.98 = $166,075.98.” The trial court awarded defendants costs of “$174,830.20” under section 998, subdivision (c)(1). The court then concluded “[t]he defense has a net gain over the plaintiff of $8,754.22, and thereby becomes the prevailing party, i.e., ‘the party with a NET monetary recovery.’”

Oakes appealed the judgment that was calculated to be $8,754.22 judgment entered in defendants’ favor after applying both statutes. The Court of Appeal affirmed in the partially published case of Oakes v Progressive Transportation Services.

The purpose of section 998 is “to encourage settlement by providing a strong financial disincentive to a party – whether it be a plaintiff or a defendant – who fails to achieve a better result than that party could have achieved by accepting his or her opponent’s settlement offer.”

The parties disagree on the sequence in which the statutes at issue should be applied and which statute takes priority in application.

Applying the cost-shifting provisions of Code of Civil Procedure section 998 before the Labor Code section 3856 allocations is consistent with applicable case authority.

We have no basis for overturning the $8,754.22 judgment entered in defendants’ favor.

LAPD Chief Takes Tough Stance on Officer Vaccination

Los Angeles Police Chief Michel Moore said he is ready to fire any of the department’s 12,000 employees who refuse to get vaccinated against COVID-19 or get tested twice a week for the disease.

Moore’s stance contrasts with Los Angeles County Sheriff Alex Villanueva, who recently went so far as to call a news conference to blast a similar vaccine mandate enacted by the county. The county sheriff predicted mass departures among his deputies as a result, a warning also made but not necessarily panning out by police union officials in Pittsburgh and Chicago.

According to the report by CBS News, the LAPD’s goal of having a fully vaccinated workforce is to ensure the safety and welfare of the department’s officers, civilian workforce, their families and the public, Moore told CBS MoneyWatch.

The LAPD on November 4 began having commanding officers personally delivering notices to 3,500 unvaccinated employees – including 2,239 who had requested an exemption – informing them of the requirements. The approach involves a “one-on-one conversation that was respectful,” said Moore, who expressed a desire to “turn down the volume” on the national debate taking place over vaccine mandates.

So far, the LAPD policy appears to be working. More than 60% of the unvaccinated employees have been officially notified one-on-one of the COVID-19 rules, and as of early Monday all but four had agreed to get vaccinated or request an exemption, Moore said.

Those four were sent home pending disciplinary hearings, with formal steps taken to terminate two of the employees and the others in line for removal if they don’t change their minds, Moore said.

Nearly eight of 10 LAPD employees are fully vaccinated, and 78% have received at least one dose, with 172 workers getting their first shot in the last week.

As in other police forces around the U.S., however, the LAPD has met some resistance to its COVID-19 rule, including a request for a temporary restraining order by the union representing its officers, which was denied by a judge on Wednesday.

I will not comply at all. The only thing mandatory for me right now is defiance,” LAPD Officer Mike McMahon told CBSLA. The 14-year veteran of the police department, who was among those staging a recent protest across from City Hall, also predicted the vaccine requirement would spark a mass exodus of fellow employees.

The LAPD is probing photos posted on social media of three LAPD officers walking toward a vaccine-mandate protest in uniform, but Moore believes they were monitoring the event as part of their jobs and not as participants.

If anyone went on-duty-capacity and in uniform and participated in that demonstration that would be wrong,” Moore said, adding he would await the findings of the formal investigation.

Feds Sue Uber for Overcharging the Disabled in California

The Justice Department filed a lawsuit against Uber Technologies Inc. for charging “wait time” fees to passengers who, because of disability, need more time to enter a car. Uber’s policies and practices of charging wait time fees based on disability have harmed many passengers and potential passengers with disabilities throughout the country.

The lawsuit, filed in the U.S. District Court for the Northern District of California, alleges that Uber violated Title III of the Americans with Disabilities Act (ADA), which prohibits discrimination by private transportation companies like Uber.

In April 2016, Uber began charging passengers wait time fees in a number of cities, eventually expanding the policy nationwide. Wait time fees start two minutes after the Uber car arrives at the pickup location and are charged until the car begins its trip.

The department’s complaint alleges that Uber violates the ADA by failing to reasonably modify its wait time fee policy for passengers who, because of disability, need more than two minutes to get in an Uber car. Passengers with disabilities may need additional time to enter a car for various reasons. A passenger may, for example, use a wheelchair or walker that needs to be broken down and stored in the car. Or a passenger who is blind may need additional time to safely walk from the pickup location to the car itself. The department’s lawsuit alleges that, even when Uber is aware that a passenger’s need for additional time is clearly disability-based, Uber starts charging a wait time fee at the two-minute mark.  

The lawsuit seeks relief from the court, including ordering Uber to stop discriminating against individuals with disabilities. Additionally, the department asks the court to order Uber to modify its wait time fee policy to comply with the ADA; train its staff and drivers on the ADA; pay money damages to people subjected to the illegal wait time fees; and pay a civil penalty to vindicate the public’s interest in eliminating disability discrimination.

“Uber’s wait time fees take a significant toll on people with disabilities,” said Acting U.S. Attorney Stephanie M. Hinds for the Northern District of California. “Passengers with disabilities who need additional boarding time are entitled to access ridesharing services without discrimination. This lawsuit seeks to assist people with disabilities to live their lives with independence and dignity, as the ADA guarantees.”

“People with disabilities deserve equal access to all areas of community life, including the private transportation services provided by companies like Uber,” said Assistant Attorney General Kristen Clarke for the Justice Department’s Civil Rights Division. “This lawsuit seeks to bring Uber into compliance with the mandate of the Americans with Disabilities Act while sending a powerful message that Uber cannot penalize passengers with disabilities simply because they need more time to get into a car. Uber and other companies that provide transportation services must ensure equal access for all people, including those with disabilities.”

If someone believes they have been a victim of disability discrimination by Uber because they, or someone they were traveling with, were charged wait time fees, please contact 833-591-0425 (toll-free), 202-305-6786, or send an email to Uber.Fee@usdoj.gov.  

Elimination of Pre-authorization For PT Improves WC Outcomes

Lean healthcare is the application of “lean” ideas in healthcare facilities to minimize waste in every process, procedure, and task through an ongoing system of improvement. Using lean principles, all members of the organization, from clinicians to operations and administration staff, continually strive to identify areas of waste and eliminate anything that does not add value for patients. Taiichi Ohno of Toyota, was the originator of lean principles. He described eight areas of waste that occur in every industry.

A new study found that Lean is a suitable methodology to accelerate patient recovery by reducing the time between on-the-job accidents and the beginning of physical therapy treatment.

The study identified ways to address inefficiencies in the workers’ compensation system and concluded that eliminating pre-authorization for physical therapy and the additional lead time it creates can improve health outcomes and reduce claim costs.

Omar Taha, in collaboration with his peers designed and deployed multiple case studies to better understand the journey of an injured worker within the workers’ compensation system.

This study was in partnership with a national healthcare provider in the field of workers’ compensation to conduct direct observations in five of their clinics across Florida and Pennsylvania. Researchers analyzed the data of 263 injured workers with eight or more physical therapy visits who were treated at clinics in both states over 31 days.

The research concluded activities associated with the pre-authorization of treatment were the primary non-value-added activity from the perspective of the injured worker based on delayed physical therapy treatment. Removing pre-authorization requirements could significantly reduce the lead time for treatment of injured workers. An injured worker could, for example, visit their referring physician and complete their first physical therapy session within the same office visit.

Half of the injured Pennsylvania workers in the researchers’ dataset attended their first physical therapy treatment within less than a day of obtaining a prescription whereas injured Florida workers required more than five days. In Florida, injured workers needed an average of 39.58 days to complete eight physical therapy visits compared to only 27.92 days to complete the same number of visits in Pennsylvania, a median of 34.09 vs. 22.15 days.

The disparity between the two states is likely due to Pennsylvania eliminating pre-authorization activities, according to the study.

“Physical therapy plays a significant role in the treatment of most work-related injuries and drives medical and indemnity costs of workers’ compensation claims,” said Taha, One Call senior director of continuous improvement and doctoral candidate in systems engineering at The George Washington University.

“Our findings corroborate that Lean is an effective methodology in identifying and removing administrative inefficiencies from the treatment process, which could accelerate patients’ recovery, reduce administrative burden on healthcare providers, and improve the overall claim cost,” said Taha.

Patterns emerged that showed inefficiencies in the information flow between insurance companies, referring care providers, and treatment care providers,” said Professor Thomas A. Mazzuchi from the Department of Engineering Management and Systems Engineering at The George Washington University. “This negatively impacts the delivery of care for injured workers.”

This was the first study to apply Lean methodology to workers’ compensation. The paper titled “Uncovering inefficiencies in the workers’ compensation industry using Lean methodology” was published in The TQM Journal.

Opioid Drugmakers Prevail in Second Case This Month

An Orange County Superior Court Judge ruled earlier this month that four drug companies cannot be held liable for California’s opioid epidemic. It marked the first trial win for any drug companies in the more than 3,300 lawsuits filed by states and local governments over a drug abuse crisis that the U.S. government says led to nearly 500,000 opioid overdose deaths over two decades.

The only other opioid trial to reach a verdict resulted in an Oklahoma judge in 2019 ordering J&J to pay $465 million to the state. However, the Oklahoma Supreme Court just reversed the verdict, finding the trial judge misinterpreted the state’s public nuisance law.

The Attorney General of Oklahoma sued three prescription opioid manufacturers and requested that the district court hold opioid manufacturers liable for violating Oklahoma’s public nuisance statute. The State settled with the other opioid manufacturers and eventually dismissed all claims against J&J except public nuisance.

The State presented evidence that J&J used branded and unbranded marketing, which actively promoted the concept that physicians were under treating pain. Ultimately, the State argued J&J overstated the benefits of opioid use, downplayed the dangers, and failed to disclose the lack of evidence supporting long-term use in the interest of increasing J&J’s profits.

The district court conducted a 33-day bench trial with the single issue being whether J&J was responsible for creating a public nuisance in the marketing and selling of its opioid products. The district court held J&J liable under Oklahoma’s public nuisance statute, and J&J appealed.

The question before the Oklahoma Supreme Court was whether the conduct of an opioid manufacturer in marketing and selling its products constituted a public nuisance

In a 5-1 ruling, the high court held that the district court’s expansion of public nuisance law went too far. Oklahoma public nuisance law does not extend to the manufacturing, marketing, and selling of prescription opioids.

Writing for the majority, Justice James R. Winchester said stopping the opioid crisis is a “laudable goal” but cannot be done by “reshaping” the public nuisance law that has traditionally been used to address “discrete, localized” problems.

The district court’s expansion of public nuisance law allows courts to manage public policy matters that should be dealt with by the legislative and executive branches; the branches that are more capable than courts to balance the competing interests at play in societal problems,” Winchester wrote. “Further, the district court stepping into the shoes of the Legislature by creating and funding government programs designed to address social and health issues goes too far.”

The majority said the high court has followed criminal and property-based limitations on the public nuisance law for 100 years.

The dissent writes that he would have reversed the verdict and sent the case back to the trial court for a new award.

“I would remand to the district court to recalculate damages based upon J&J’s share of the market in the years it sold its opioids in Oklahoma with its deceptive marketing scheme….,The attorney general’s basic theory of the case is tenable, both in law and equity.”

California COVID-19 Cases on the Rise Again!

A month ago the coronavirus seemed headed for a long winter’s nap in masked and well-vaccinated California. Gov. Gavin Newsom boasted that the Golden State “continues to lead the nation” as the only state to reach the Centers for Disease Control and Prevention’s yellow “moderate” tier of community virus transmission.

But the Mercury News reports that COVID-19 cases aren’t falling in California anymore. They have climbed back up to the CDC’s blood-red “high” level of virus transmission as the highly contagious Delta variant continues to wreak havoc.

“There are early indications that the decline in the Delta surge at the national level in the U.S. has ended,” said Ali H. Mokdad, professor of health metrics sciences at the University of Washington, which runs a widely followed model projecting the course of the pandemic. Currently, 19 states have increasing transmission, including several like California “that had previously appeared to have been declining.”

And while much of the Golden State’s current coronavirus woes are driven by virus spread in the less-vaccinated and restricted inland counties, the Bay Area hasn’t been immune. Most Bay Area counties that hoped to reach the yellow moderate level by now remain stubbornly stuck in orange. Marin and Santa Cruz counties, which had reached the yellow level, are back up to orange. San Francisco is the only county in yellow.

So why aren’t Golden Staters reaping more reward for their adherence to health guidance?

You’re paying for your success, which is weird,” Mokdad said. “You succeed in controlling the virus, and now you’re having infections.”

But he and other health experts say it’s not because the health guidance isn’t sound. Outbreaks burn out once the virus runs out of enough new people without immunity to infect. And people can gain immunity both from infection recovery and vaccines.

With higher vaccination levels than in the Southeast, California saw a smaller wave of cases over the summer as the Delta variant ripped through the country, mostly infecting those who hadn’t been vaccinated. Now that they’ve recovered, they have immunity too, cutting off avenues for the virus to spread.

“These regions are now being partly protected by high prior infection rates,” said Dr. Bob Wachter, chair of the medical department at the University of California-San Francisco. “But these people whose immunity comes from COVID are not very well protected, and their immunity will wane with time.”

States in the Southeast hammered with big summer case surges now are faring better simply because, with their combination of vaccinations and infections, they have fewer left who are susceptible to the virus than in California, Mokdad said. But “they got there at a heavy price.”

Other factors also are in play. The Southeast’s hot, humid summers drive people to the air-conditioned indoors where the virus spreads easily, while Californians enjoy moderate weather out in the surf and sand. But the autumn chill is now bringing Californians inside, too.