Category: Daily News

Plaintiff Karla Garcia-Laverentz filed a complaint against her employer Sedgwick Claims Management Services, Inc., alleging a myriad of disability-related claims under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA) and other laws.

Plaintiff suffered from depression and anxiety, which she controlled with medication. She also suffered from asthmatic bronchitis. Following her return to work after a bronchitis episode, she expressed concern about the environment and requested that the air ducts be cleaned. She then filed a workers’ compensation claim alleging an unhealthy work environment after she suffered another episode.

While out on leave, plaintiff learned she was pregnant, so her doctor took her off of her psychotropic and other medications. When she returned to work she asked to be allowed to stay away from ill employees and for the first time requested Sedgwick change the location of her desk such that it is away from any heater or air conditioning vents.

Sedgwick retained engineers to conduct an air quality study, which did not uncover any dangerous air contaminants. Plaintiff experienced another attack of bronchitis and never returned to work after that. She was granted disability leave which was extended at times. Subsequently, she believed that Sedgwick had terminated her position. But her doctors continued to submit notes with estimates of return dates. But she never returned to work. Nor did she ever tell Sedgwick she could return. In fact, she had no contact with Sedgwick from late July 2010 until she moved to Fresno in October 2011.

Following her filing of a civil action, Sedgwick moved for summary judgment, which the trial court granted. In a detailed order, the trial court concluded the undisputed evidence demonstrated plaintiff did not suffer the adverse employment action of termination as she argued, and Sedgwick reasonably accommodated her disability and engaged in the good faith interactive process. Those holdings were dispositive of all of plaintiff’s claims. The plaintiff appealed. The Court of Appeal affirmed the dismissal in the unpublished case of Karla Garcia-Laverentz v. Sedgwick Claims Management Services, Inc.

The Court noted that “Throughout this litigation, plaintiff’s theory of adverse employment action has been a moving target. First, in her prelitigation complaint filed with the Department of Fair Employment and Housing (DFEH), in the FAC, and during discovery, she claimed she was terminated on May 27, 2010, as shown by the June 7 letter. In opposition to summary judgment, she expanded that theory to argue she was terminated when she received the July 28 letter indicating her position would be filled for business reasons. Now, for the first time in her opening brief on appeal, she further argues she suffered an adverse employment action short of termination  when Sedgwick indicated in the July 28 letter it intended to fill her position. And in her reply brief, she argues the “retaliation” she allegedly faced for exercising her rights constituted an adverse employment action. …..We find she waived the last two theories because she raised them for the first time on appeal.

“In her declaration opposing summary judgment, plaintiff expressed her subjective belief the June 7 letter, and later the July 28 letter, indicated she had been terminated. Her belief alone is not enough to defeat summary judgment.”

The trial court concluded plaintiff failed to raise a triable issue of fact over the reasonableness of two accommodations provided by Sedgwick: (1) granting plaintiff medical leaves of absence; and (2) moving her desk away from vents in the office. On appeal, plaintiff does not challenge the trial court’s holding that her leaves of absence were reasonable accommodations. Nor could she do so successfully. “[A] finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform his or her duties.”

California lawmakers are slated to hear the details on a proposed law that would create an anti-fraud division within the state’s Division of Workers’ Compensation, according to updates posted on the state’s website that tracks bills.

A Committee on Insurance hearing is slated for April 19 on Assembly Bill 1697, which would amend the state’s labor code to better tackle workers comp fraud in the state.

Existing law creates the Fraud Division, within the Department of Insurance, to administer provisions related to insurance fraud. Existing law requires the Insurance Commissioner to ensure that the Fraud Division aggressively pursues all reported incidents of probable workers’ compensation fraud.

This bill would require the administrative director to establish an antifraud support unit within the Division of Workers’ Compensation. The bill would set forth the duties of the unit, including coordinating and advancing antifraud activities for the division and serving as the point of contact between the division and other agencies and entities engaged in antifraud activities.

According to the text of the bill to create an anti-fraud unit within the department, the state’s labor code section 139.8 would be amended to read: “The administrative director shall establish an anti-fraud support unit within the division. The unit shall perform all of the following duties: (a) Coordinate and advance anti-fraud activities for the division; (b) Serve as the point of contact between the division and other agencies and entities engaged in anti-fraud activities; (c) Act as the repository and clearinghouse for data on anti-fraud activities; (d) Ensure the efficient sharing of data among the division, other agencies, and other entities engaged in anti-fraud activities; (e) Research fraud in the workers’ compensation system.”

A.B. 1697 was introduced by 10 lawmakers, including Assemblyman Tom Daly, D-Anaheim, chairman of the Committee on Insurance who in March requested that the state’s Joint Legislative Audit Committee investigate the state’s system to prevent, detect and prosecute fraud – an audit that office says is now underway and will be completed by 2018.

Fernando Muniz Villalpando filed multiple claims for industrial injuries while employed as a laborer by two different employers, Martin Dusters and Doherty Brothers. He claimed injury to his lumbar spine at both employers and, additionally, to his cervical spine and bilateral shoulders at Doherty Brothers.

His three claims were settled by Compromise and Release. The parties’ settlement included an MSA Agreement, through which SCIF would fund applicant’s future medical treatment. The initial MSA proposal sent by Bridge Pointe to CMS provided that applicant would self-administer the MSA.

In an Addendum to the Compromise and Release Agreement, applicant agreed that Bridge Pointe would administer the MSA, with SCIF to establish the account with an initial payment to Bridge Pointe of $57,084.00, and $15,941.00 annually thereafter for 29 additional years. The Addendum also provided that SCIF would pay Bridge Pointe $3,555.00 as a fee to establish the MSA and for the initial year’s cost of administration. Thereafter, Bridge Pointe would receive an administrative fee of$1,800.00.

The agreement between applicant and SCIF does not contain any language pertaining to any future contingency involving the administration of his MSA by Bridge Pointe. There is no reference to a potential change of administration to another third party administrator, or to applicant as a self-administrator, in the event Bridge Pointe fails to provide services as a third party administrator of applicant’s MSA.

Applicant petitioned to replace Bridge Pointe and self-administer his MSA, based upon his claims that he has had problems obtaining medical services through the current arrangement. The WCJ denied his request to transfer the administration of his Medical Set-Aside Account from Bridge Pointe/NuQuest to himself, based upon the finding that applicant has not established that the MSA has been administered inappropriately.

Villalprando requested Reconsideration. The WCAB granted Reconsideration, rescinded the Joint Findings and Order and returned this matter to the trial level for further proceedings in the split panel decision of Villalprando v SCIF

The issue as framed by the WCJ does not address whether the terms of the parties’ agreement to utilize a professional administrator included any provision for a change of administration in the event Bridge Pointe ceases to operate or withdraws from providing the contracted services any time over the 30 year life of the agreement. There is no record as to the specific rights, duties and indemnifications as between the parties enumerated in the Compromise and Release Agreement. Such terms would reasonably be found in the contractual agreement that led to the MSA being administered by Bridge Pointe.

In order for applicant to be allowed to self-administer his MSA, he should establish his competency to manage his affairs and comply with the CMS requirements for self-administration. If State Compensation Insurance Fund still opposes applicant’s administration of his own MSA, it would then have to show good cause why the change should not be permitted.

Commissioner Zalewski dissented.  She would affirm the Joint Findings and Order for the reasons stated in the Workers’ Compensation Administrative Law Judge’s Report and Recommendation on Petition for Reconsideration. Applicant’s evidence of his dissatisfaction with the agreed upon administrator is not sufficient to establish good cause to set aside the parties’ agreement, reflected in the Compromise and Release regarding the administration of the Medical Set-Aside Account.

The owners of two local drug wholesale companies were among four defendants taken into custody on federal “structuring” charges that allege they made millions of dollars in cash deposits designed to circumvent federal reporting requirements.

This indictment marks the third phase of Operation “Psyched Out.” The investigation previously resulted in convictions against 17 defendants connected with the operators of a fraudulent medical clinic, Manor Medical Imaging. A medical doctor employed at the location, Kenneth Johnson, and two owners of a San Marino pharmacy, Phic Lim and Theanna Khou, were convicted in that case. In the second phase, the owner of a Glendale pharmacy, Peter Bagdasarian, was convicted of prescription drug misbranding connected to the scheme.

In this third phase, federal authorities arrested Richard Kayseryan, 41, of Burbank, the owner of Burbank-based TriMed Medical Wholesalers, Inc. Kayseryan is the lead defendant in a 20-count indictment returned on April 6 by a federal grand jury that charges four individuals and TriMed in relation to two separate schemes to structure millions of dollars in proceeds through “funnel” bank accounts set up in the names of shell companies.

Two other defendants – Derou Biglari, 31, and Jivani Markarian, 33, who own the Glendale-based drug wholesale business JD Pharmaceutical Wholesaler, Inc. – and the fourth defendant – Rafik Mesropyan, 56 – surrendered. These three co-conspirators, all Glendale residents, are charged with depositing millions of dollars of TriMed checks for Kayseryan, and returning the funds to him in the form of cash.

As part of the scheme, TriMed collected millions of dollars from business activities and Kayseryan prepared checks that he delivered to his co-defendants. The co-conspirators deposited the checks into the funnel accounts and immediately withdrew the funds in cash in amounts at or under $10,000 per transaction, according to the indictment. These transactions were designed to prevent banks from reporting the cash withdrawals to the federal government, which is required for every cash transaction of more than $10,000.

The indictment also charges Kayseryan with lying to federal agents about the funds during an interview in June 2016. Kayseryan allegedly falsely claimed that “he issued TriMed checks payable to the shell businesses…..for the purpose of making interest-bearing ‘investments’ in the shell businesses” and that he “did not receive ‘one cent’ of the funds from the TriMed checks back.” In fact, the businesses did not exist at all, and Kayseryan received millions of dollars in funds back from the checks in the form of cash.

Finally, the indictment charges Kayseryan with filing false tax returns that fraudulently overstated TriMed’s business expenses.

Investigators believe that Kayseryan wrote checks to the shell companies from 2010 through 2015 totaling more than $20 million and that Kayseryan claimed these checks were to pay business expenses. In fact, most of the shell companies did not actually exist other than on paper.

If convicted of the 20 counts in the indictment, Kayseryan would face a statutory maximum of 94 years in prison. Biglari and Markarian, if convicted, would each face 45 years, and Mesropyan could be sentenced to as much as 35 years in prison.

The editorial board of Orthopedics Today was asked what they think are the top advances in orthopedic surgery over the past 30 years.

It is now estimated that up to 80% of orthopedic procedures are amenable to the outpatient setting and many orthopedic practices have sophisticated imaging capabilities in their office and surgery centers.

The shortened recovery and associated disability with less invasive and more stable and rigid fixation have allowed patients to be more functional sooner, and reduced the morbidity of some of the previous approaches.

More recently, steady improvement in arthroscopic techniques and instrumentation and expanded use in the hip joint has furthered this subspecialty area of orthopedics.

Improvements and innovations in materials, articulation surfaces, peri- and postoperative management strategies and outcomes research have worked together during the last 30 years to decrease implant wear and increase function following joint replacement procedures.

Hip arthroplasty has benefited from the advent of porous metals, improvements in alternative bearing surface technologies, polyethylene advances and newer procedures, such as resurfacing surgery.

Some of the developments that have enhanced knee arthroplasty over the past 30 years include unicompartmental implants, modular components, fixed and mobile bearing designs, newer polyethylenes and computer assistance.

Characteristics of current knee designs that he thought to be associated with long-term in vivo durability as:

– articular surface congruency of either cruciate retaining or posterior stabilized implants;
– minimal motion between the polyethylene and tibial base plate or elimination of motion, as in monoblock implants;
– non-aged, compression molded polyethylene with moderate crosslinking, sterilized in an inert environment;
– CoCr tibial and CoCr or ceramic coated (Oxinium) femoral components;
– mobile bearing implants; and
– congruous, capacious patellar-femoral designs.

In order to be associated with long-term in vivo durability, these designs must be inserted with instrumentation that assures consistent alignment, soft tissue balance in flexion and extension and appropriate stability,

Imaging and its use in improving outcomes in orthopedic surgery have developed concurrently throughout the past 30 years, with smaller and more convenient methods giving physicians a wider range of possibilities. Even MRI and CT have seen recent changes in their implementation, with surgeons moving toward utilizing them for patient-specific implants or guides.