Category: Daily News

The Sacramento Bee reports that for nearly a dozen years, top officials at the California Department of Forestry and Fire Protection knowingly withheld death benefits from the families of 14 contracted firefighter pilots killed in the line of duty.

Since 2002, the claim that seeks more than $4 million plus interest for the survivors.filed this month alleges, “high level executives of Cal Fire, including the current director of Cal Fire, the current deputy director of Cal Fire (and their predecessors) … engaged in a pattern of deceit and deception specifically designed to hide the existence of (the benefit) from the survivors and dissuade them from seeking any such death benefit from Cal Fire.”

Cal Fire spokeswoman Janet Upton said in an email to the Sacramento Bee that the department has not yet formally received the claim, but “has been working on benefits” for survivors of Geoffrey Hunt, a contracted pilot killed last October. The department also has “been reviewing records to ensure that past Cal Fire contracted pilots have also received them,” Upton said.

If Cal Fire declines to pay the benefits, the claim is a likely precursor to a court battle over the interpretation of a state law. The statute requires Cal Fire to pay a one-time death benefit if a contracted pilot flying a firefighting aircraft “dies while performing the duties specified in the contract.” Cal Fire and other agencies, including the U.S. Forest Service, contract for firefighter pilots through private companies. The survivors say U.S. Forest Service contracts are covered by the law because the pilots perform firefighting duties for the state.

Paul Goyette, the attorney representing the families, said during an interview at his Gold River offices that the department “has never followed the law, not once,” leaving some grieving families to struggle financially after their primary breadwinner perished.

Federal public-employee death benefits exclude contractors, including pilots who fly firefighting aircraft, Goyette said, and the contracted companies carry workers’ compensation insurance only as required by law. Upton said Cal Fire is “working with federal authorities” to get rid of the exclusion and ensure “federally contracted pilots receive federal benefits.”

In the absence of a federal death benefit, state law requires Cal Fire to make a lump-sum payment to pilots’ survivors “commensurate with the death benefit payable to a mid-career firefighter employed by the department.” Alternatively, it can pay an amount equal to what the federal program would have paid at the time of the pilot’s death had he or she been eligible.

The federal benefit, which is adjusted annually, was $262,100 in 2003 when two pilots named in the claim, John Attardo and Carl Dobeare, died fighting the East Highlands fire in San Bernardino County. The current federal lump-sum benefit is $339,310.

The complaint alleges that even as Cal Fire brass attended services for the fallen and consoled grief-stricken family members, they misled survivors and hid the state’s legal obligation to pay benefits.

The Los Angeles County District Attorney’s Office announced that a former Santa Monica physician pleaded no contest this month to obtaining a controlled substance by fraud.

Dr. Daniel Shin, 50, returns to court on Nov. 4 for sentencing before Los Angeles County Superior Court Judge Charlaine Olmedo. Under the terms of a negotiated plea, he will be sentenced to three years in county jail.

Shin, who has since lost his license to practice medicine, operated a pain management clinic on the second floor of a squarish medical office building that dominates the corner at Wilshire Boulevard and Harvard Avenue in Santa Monica. Prosecutors said Shin along with his office manager, Thomas Mark Oseransky, 50, and a colleague, Dyno Travato West, 39, orchestrated a complex scheme to write and fill prescriptions for oxycodone. He faced 27 counts stemming from what Los Angeles County District Attorney’s Office spokeswoman Jane Robison called “an elaborate scheme” to fill fake prescriptions for oxycodone using his office manager Thomas Mark Oseransky and employee Dyno Travato West as stand-ins for patients.

West earlier pleaded no contest to conspiracy and multiple counts of obtaining a controlled substance by fraud and was sentenced to 32 months in state prison. Oseransky returns to Department 105 on Sept. 17 for a pretrial hearing.

California Medical Board records show that in 2009 Shin was placed on probation by the board for two years after admitting to violating the state Business and Professions Code for failing to disclose a misdemeanor conviction. Shin was disciplined again in 2012 for failing to complete a clinical training program. He was placed on five years probation. In March 2014, was Shin ordered by Sacramento County Superior Court Judge Robert Longoria to “cease and desist from the practice of medicine,” according to medical board records.

Jose Franco was employed by tempSERVE, a temporary staffing agency. In July 2009, Franco was assigned to work for West Coast as a general laborer assisting Melgoza, a West Coast forklift driver to help load and unload trailers with pipe.

Every day when Franco reported to work at West Coast, he would locate Melgoza. Melgoza would then give Franco their lineup for the day. Franco spent the work day with Melgoza, receiving instructions from Melgoza regarding their tasks. He was never instructed or supervised by anyone from tempSERVE. Although West Coast could not fire Franco, West Coast could remove him from the job at any time. West Coast provided the hammer and table saw Franco used to do his job. However, Franco and tempSERVE provided Franco’s safety equipment, i.e., hard hat, gloves, eye protection and steel toed boots.

On September 28, 2009, a pipe struck Franco injuring his foot and knee. His medical bills and disability payments were paid by workers’ compensation insurance. Franco also filed a civil complaint for negligence against West Coast and Melgoza. West Coast and Melgoza moved for summary judgment on the ground that West Coast was Franco’s special employer and therefore Franco is statutorily barred from bringing an action against West Coast and Melgoza for personal injuries. The trial court agreed and granted the motion. The Court of Appeal affirmed in the unpublished case of Franco v West Coast Pipe Inspection.

In determining whether a special employment relationship exists, the primary consideration is whether the special employer has ‘[t]he right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, whether exercised or not..”

Franco interprets his own testimony on West Coast’s supervision over him as not demonstrating the type of detailed control and direction necessary to find an employment relationship. However, contrary to Franco’s position, he provided unskilled labor and this labor was directly supervised by Melgoza. Thus, West Coast had the power to direct and control Franco.

California Labor Commissioner Julie A. Su issued more than $2.2 million in citations to the owners of three residential care facilities in San Diego County for what was characterized as “egregious wage theft violations.” The investigation revealed that nine caregivers were forced to work 24-hour shifts, six to seven days a week, for $1.25 to $1.80 per hour.

The citations were issued to Fairhill Castle LLC and its owners, Lamberto “June” and Jesusan Deleon of Spring Valley for minimum wage, overtime, meal period and workers’ compensation violations from September 2013 to August 2014. They must pay $1,332,129 for underpaid wages and premiums, $716,846 for liquidated damages and $171,305 in civil penalties.

Investigators discovered that the Deleons employed two people, typically a husband-wife team, at each of their facilities located on Fairhill Drive, Prather Place and San Diego Street in Spring Valley. They were charged to provide round-the-clock care for elderly residents who suffered from advanced stage dementia or Alzheimer’s, many of them bedridden or receiving hospice care. The caregivers worked 24-hour shifts, six to seven days a week, but were only paid between $900 and $1,300 each month in cash.

The investigation also found that the Deleons had neither reported wages to the proper state, federal and local agencies, nor did they have a history of workers’ compensation coverage during their eight years’ operating the facilities. Although the business entity is typically cited for labor law violations, in this case, Mr. Deleon, the LLC Managing Member, was also cited as an individual because he caused the violations through his daily control of the facilities’ operations.

Before the conclusion of the appeals hearing in this case earlier this year, the Deleons closed the residential care facilities under the Fairhill Castle business name. The Fairhill Drive location was subsequently reopened under a new name, Jade House, with their eldest daughter, Emmercelle M. DeLeon, named as the owner and sole proprietor.

“This is a classic example of the steps scofflaw employers will take to avoid paying exploited workers for wages owed,” said Labor Commissioner Julie Su. “That is why we are holding individuals who engage in wage theft responsible, so they cannot hide behind a corporate shell and will have a difficult time avoiding liability to workers.”

Among its wide-ranging enforcement responsibilities, the Labor Commissioner’s Office inspects workplaces for wage and hour violations, adjudicates wage claims, enforces prevailing wage rates and apprenticeship standards in public works projects, investigates retaliation complaints, issues licenses and registrations for businesses and educates the public on labor laws.

The Wage Theft is a Crime public awareness campaign, launched last year by DIR and its Labor Commissioner’s Office, has helped inform workers of their rights. The campaign includes multilingual print and outdoor advertising as well as radio commercials on ethnic stations in English, Spanish, Chinese, Vietnamese, Hmong and Tagalog.

The Salinas Californian reports that a Marina man has pleaded no contest to workers’ compensation insurance fraud and tax evasion in Monterey County Superior Court. Felipe DeJesus Olvera, 45, pleaded no contest to two felony counts of making a material misrepresentation in order to obtain a lower workers’ compensation insurance premium and one misdemeanor count of willfully failing to file payroll tax returns with intent to evade tax.

Sentencing is scheduled for Sept. 15 in front of Judge Julie R. Culver. Olvera faces a maximum sentence of six years in county jail for the felonies and up to one year for the misdemeanor, but he will initially be placed on probation.

On Oct. 16, the Monterey County District Attorney’s Office and the California Department of Insurance conducted an uninsured employer compliance sweep in Monterey County. While preparing for the sweep, the Employment Development Department screened targeted businesses to be inspected so it could be verified if they were registered as an employer, according to the district attorney’s office. Businesses were also checked for active workers’ compensation insurance policies.

Olvera was doing business as La Sirenita Tree Service at the time of this sweep. While the tree service business had a current workers’ compensation insurance policy with the State Compensation Insurance Fund, records showed that no employees and no payroll was reported to the State Fund.

A worksite inspection was conducted on the business where the defendant and two of his employees were working trimming trees on Monterey County property. Video of the employees working was taken, and the employees were interviewed along with Olvera, who admitted owning the business, according to the DA’s office.

The investigation also revealed that Olvera had contracted with multiple government agencies while continuing not to report his employees or wages to the State Compensation Insurance Fund.

Monterey County District Attorney Investigator George Costa investigated the case with assistance from California Department of Insurance detectives, Employment Development Department detectives and State Compensation Insurance Fund Investigator Denise Villapudua.