Category: Daily News

The Sacramento County District Attorney announced that former California Department of Corrections and Rehabilitation Officer Alan Lemke pled no contest to felony workers’ compensation insurance fraud. Lemke was charged with failing to disclose his participation in events and activities that, had those events and activities been known, would have affected the benefits to which he was entitled.

Lemke filed a workers’ compensation claim after allegedly injuring his foot while working in the prison. However, investigators in the Office of Internal Affairs, Workers’ Compensation Insurance Fraud Unit at the California Department of Corrections and Rehabilitation discovered Lemke failed to disclose that he engaged in a 50 mile hike over rugged terrain just three weeks after he reported being injured at work. In addition, investigators determined Lemke failed to disclose other activities, including rock climbing, snow shoeing, acting in two plays with multiple performances, and numerous extreme hikes in rugged mountainous terrain during the one year and two months he was off work collecting benefits. Lemke made video recordings and took photos of many of his hikes and other activities, which were discovered in his home when investigators served a search warrant.

Pursuant to the plea, Lemke will be placed on probation and ordered to serve 150 days in county jail, with the sheriff’s work furlough program recommended. Furthermore, he will be ordered to pay to the California Department Corrections and Rehabilitation and State Compensation Insurance Fund a stipulated restitution amount of $33,262.56, with an additional $10,453.68 in discretionary costs to be determined by the court at sentencing. If Lemke pays restitution in full, the charge will be reduced to a misdemeanor.

Sentencing is scheduled for July 17, 2015 in Department 45 before the Honorable Judy Herscher.

Robin Chorn M.D. is a licensed physician and surgeon who provides medical services to workers’ compensation applicants. On November 20, 2013, he filed a class action civil complaint contending that the subdivisions of Labor Code section 4903 imposing medical lien activation and filing fees (§§ 4903.05, 4903.06) and restrictions on payment of awards to assignees (§ 4903.8) violated Article I, sections 3, 7, and 9 and Article XIV, section 4 of the California Constitution. He further alleged that the adoption of emergency regulations to implement the lien activation fee provision violated the California Administrative Procedure Act. (Gov. Code § 11340 et seq.)

The superior court held that it lacked jurisdiction to consider Chorn’s challenge to the statute and denied the motion without considering the merits. Chorn timely appealed. The Court of Appeal sustained the trial court in the unpublished case of Chorn v Brown.

Labor Code 5955 provides, “No court of this state, except the Supreme Court and the courts of appeal to the extent herein specified, has jurisdiction . . . to restrain, enjoin, or interfere with the appeals board in the performance of its duties but a writ of mandate shall lie from the Supreme Court or a court of appeal in all proper cases.” The trial court stated that the California Constitution confers on the Legislature “plenary power, unlimited by any provision of this Constitution,” to establish a system of workers’ compensation: including the power to create a system for trial and resolution of workers’ compensation disputes. The trial court accordingly concluded that the jurisdictional provisions of article VI of the California Constitution, which grant original jurisdiction to superior courts over most cases, were inapplicable to workers’ compensation disputes.

The Court of Appeal agreed saying “In this action, an injunction enjoining respondents from enforcing the challenged provisions of the statute would interfere with the appeals board’s performance of its duties.” The courts of appeal and Supreme Court have exclusive jurisdiction over Chorn’s challenge to the validity of the statute.

The order of the trial court was affirmed

The Uber business model is pretty simple: People use the ride-hailing app to find a driver to take them where they want to go for a price. But is that driver an Uber employee or an independent contractor? The Los Angeles Times reports that the California Labor Commissioner’s office has ruled that San Francisco Uber driver Barbara Ann Berwick was an employee – and entitled to receive more than $4,000 in mileage and toll expenses because her services were “integral” to the company’s business model. Without drivers, Uber’s business “would not exist,” the order concluded.

The decision – handed down earlier this month and appealed on Tuesday by Uber – could disrupt the Silicon Valley start-ups that have redefined the relationship between companies and workers. The case could spawn other legal challenges from workers and regulations from cities and states. If the case winds up before the California Supreme Court, it could lead to a broader, precedent-setting ruling.

Uber connects drivers and passengers through a smartphone app, much in the same way that Airbnb digitally connects property owners and short-term renters. Both companies, and others like them, have faced a series of political battles in states and cities struggling to regulate such fast-growing enterprises, which are upending business models – and often drawing protests.

Uber has grown more than sixfold over the last five years – it now operates in more than 150 U.S. cities and 57 countries around the world. The company has raised more than $5.9 billion from investors, putting Uber at a $41-billion valuation, above General Motors and Ford, and the highest-valued start-up in the U.S. Those high valuations, however, could be threatened by a rising tide of legal and regulatory challenges across the globe. In March, a federal judge gave the go-ahead to a class-action lawsuit in federal court in San Francisco involving drivers who argue that they are employees entitled to benefits such as unemployment insurance, workers’ compensation and healthcare.

Uber has contended that it offers its drivers the freedom to choose how often and when to work, meaning the traditional employer-employee relationship does not apply. “It’s important to remember that the No. 1 reason drivers choose to use Uber is because they have complete flexibility and control,” the company said in a statement Wednesday responding to the Labor Commissioner’s ruling. The company also said the decision contradicted a 2012 ruling in which the office concluded that a driver had performed services as a contractor and “not as a bona-fide employee.”

The most recent order found that Uber was involved in “every aspect of the operation,” including vetting drivers, requiring them to provide personal banking, Social Security and address information, conducting DMV and background checks, and only allowing drivers to use registered cars that are less than 10 years old. Uber requires drivers to pay expenses. Unlike many taxi or limousine services, Uber doesn’t directly employ drivers, nor does it own or maintain the vehicles used by the drivers.

Classifying drivers as employees would be costly for Uber. In California, for example, the company would have to reimburse employees for gas, tolls and insurance and would also be on the hook for unemployment insurance, workers’ compensation, Social Security and other benefits.

The classification of “independent contractor” versus “employee” has been a long-standing source of conflict in U.S. labor law, ranging from port truck drivers to janitors to delivery drivers. But in recent years, the debate has shifted into the high-tech start-up realm, where companies have worked to develop applications connecting workers who supply services and customers who demand them.

It is not uncommon for seriously injured workers to be awarded home health care services by the WCAB. In some cases the claim is for services 24 hours a day. It is similarly not uncommon for the employer to meet this obligation by payment for services to a spouse or family member of the injured worker. It is unfortunately very uncommon for employment law issues such as wage hour and meal breaks and overtime pay to be included in this arrangement with the family member, or for that matter, a clear understanding of who exactly the caregiver’s employer might be. Lurking in the background is a supplemental claim for back pay and penalties as illustrated by this announcement by the California Labor Commissioner.

California Labor Commissioner Julie A. Su awarded $138,386 in back pay to a caregiver who worked 16-hour days in San Francisco for less than minimum wage, usually without a day off. The amount includes minimum wage and severance pay violations, liquidated damages and waiting time penalties.

Francisca Vasquez, a Salvadoran war refugee, was hired in 1992 by siblings Magdalena Lindvall and Reynaldo Peña Jr. to work as a companion for their elderly parents for $400 a month. Eventually Vasquez became a housekeeper and then round-the-clock caregiver to their mother for $500 a month. Upon the mother’s death, Vasquez was discharged.

“Workers are not always aware of their rights,” said Christine Baker, Director of the Department of Industrial Relations (DIR). “California labor law protects domestic workers as well as others who work in industries susceptible to wage theft.” The Labor Commissioner’s Office, also known as the Division of Labor Standards Enforcement (DLSE), is a division within DIR.

Because Vasquez filed her claim two years into the three year statute of limitation for minimum wage claims, she could only collect wages on the last year she worked.

“This was an egregious case of worker abuse, where someone providing care was treated with an utter lack of care for her rights and for her humanity,” said Labor Commissioner Julie A. Su. “I am pleased that through the Berman wage claim process, my office was able to help her get some of the hard earned wages she deserved. This is a sign that when workers come forward to file wage claims, they can win some measure of justice.”

The Labor Commissioner awarded her $50,008 for wages, $48,209 in liquidated damages, $35,707 in interest, and $4,464 in penalties. Vasquez was assisted in the wage claim process by the community organization Mujeres Unidas y Activas and the Legal Aid Society – Employment Law Center.

There is no clear solution that would apply generically across worker’s compensation cases to minimize risk in home health care situations where a family member becomes the paid caregiver. It would be prudent to consult an employment law attorney, such as Bernadette O’Brien at Floyd, Skeren and Kelly should there be concerns about what this risk might be, or how it might be mitigated.

In a four-month investigation, Reuters has documented the full extent of the fraud in India’s medical-education system. The stunning report concludes that “India’s system for training doctors is broken. It is plagued by rampant fraud and unprofessional teaching practices, exacerbating the public health challenge facing this fast-growing but still poor nation of about 1.25 billion people. The ramifications spread beyond the country’s borders: India is the world’s largest exporter of doctors, with about 47,000 currently practicing in the United States and about 25,000 in the United Kingdom.”

The Reuters probe also found that recruiting companies routinely provide medical colleges with doctors to pose as full-time faculty members to pass government inspections. To demonstrate that teaching hospitals have enough patients to provide students with clinical experience, colleges round up healthy people to pretend they are sick. Government records show that since 2010, at least 69 Indian medical colleges and teaching hospitals have been accused of such transgressions or other significant failings, including rigging entrance exams or accepting bribes to admit students. Two dozen of the schools have been recommended for outright closure by the regulator. Paying bribes – often in the guise of “donations” – to gain admission to Indian medical schools is widespread, according to India’s health ministry, doctors and college officials.

“The next generation of doctors is being taught to cheat and deceive before they even enter the classroom,” said Dr. Anand Rai. He exposed a massive cheating ring involving medical school entrance exams in the central Indian state of Madhya Pradesh in 2013. Rai was given police protection after he received death threats following the bust.

Charged with maintaining “excellence in medical education” is the Medical Council of India (MCI). But this government body is itself mired in controversy. Its prior president currently faces bribery allegations. The council is the subject of a mountain of lawsuits, many of them pitting it against medical schools challenging its findings. The cases often drag on for years.

“The best medical schools in India are absolutely world class,” said David Gordon, president of the World Federation for Medical Education. But, he added, the Indian government’s process of accrediting a “huge” number of recently opened, private medical schools “has at times been highly dubious.” Sujatha Rao, who served as India’s health secretary from 2009 to 2010, said “The market has been flooded with doctors so poorly trained they are little better than quacks,”

The system’s problems are felt abroad, too. Tens of thousands of India’s medical graduates practice overseas, particularly in the United States, Britain, Australia and Canada. All of these countries require additional training before graduates of Indian medical schools can practice, and the vast majority of the doctors have unblemished records. But regulatory documents show that in both Britain and Australia, more graduates of Indian medical schools lost their right to practice medicine in the past five years than did doctors from any other foreign country.

About 45 percent of the people in India who practice medicine have no formal training, according to the Indian Medical Association. These 700,000 unqualified doctors have been found practicing at some of India’s biggest hospitals, giving diagnoses, prescribing medicines and even conducting surgery. Balwant Rai Arora, a Delhi resident in his 90s, said in an interview that he issued more than 50,000 fake medical degrees from his home until his forgery ring was broken up by the police in 2011. Each buyer paid about $100 for a degree from fictitious colleges. Arora was twice convicted and jailed for forgery. “There is a shortage of doctors in India. I am just helping people with some medical experience get jobs,” said Arora. “I haven’t done anything wrong.”