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OSIP Reports Public Self-Insured Claim Volume and Losses Soared

OSIP’s summary of the FY 2021/22 public self-insured data, posted this week, provides an initial snapshot of the volume of claims, total loss payments and total incurred losses for the 12 months ending June 30, 2022. The state compiles the data from workers’ compensation reports submitted by hundreds of public self-insured entities, including cities and counties, local fire, school, transit, utility and special districts, and joint powers authorities. The latest summary shows that in FY 2021/22 these employers provided workers’ compensation coverage to just over 2 million California public workers whose wages and salaries totaled more than $145 billion.

California’s public self-insured workforce increased less than 1% in the 12 months ending June 30, but the total number of public self-insured work injuries and illness claims reported to the state jumped 35%, as the medical-only claim count rose 29.9% while the number of indemnity claims soared by 38.1%.

A CWCI analysis of data from the state’s Office of Self-Insurance Plans (OSIP) shows that with claim volume up steeply, total workers’ compensation paid losses for cities, counties and other public agencies in California increased by 31.5% to a record $585 million in fiscal year (FY) 2021/22, while total incurred losses (paid plus reserves) rose 19.3% to nearly $1.68 billion.

Reviewing OSIP’s initial report data for the past two years, CWCI found that after declining 4.4% in FY 2020/21, the number of public self-insured employees in the state increased 0.9 percent in FY 2021/22, but the number of reported work injury and illness claims among these workers jumped from 107,161 to 144,676 cases – a 35% increase.

With the huge surge in claims – many of which were likely COVID-19 claims according to both CWCI data and the state’s survey of occupational injuries and illnesses – public self-insureds’ total claim payments at the first report increased by $140 million to $585 million, up 31.5% from the comparable figure for FY 2020/21. That was the eighth consecutive increase in total public self-insured paid losses, but in this case it was fueled by the huge jump in claim volume and not an increase in the average amount paid per claim, as an influx of relatively low-cost claims drove first report average paid losses down from $4,152 in FY 2020/21 to $4,043 in FY 2021/22.  

A closer look at the first report payment data on public self-insured indemnity claims shows the average indemnity paid per FY 2021/22 lost-time claim was $4,165, which was down from $4,256 the prior year, but the impact of this reduction on the total amount paid was more than offset by the addition of 25,433 indemnity claims.

With the surge in lost-time cases, indemnity claims’ share of the public self-insured claims increased from 62.3% to 63.7%, while less expensive medical-only claims decreased from 37.7% to 36.3%. Calculating the public self-insured claim frequency rate to control for changes in the work force, CWCI noted that overall claim frequency increased from 5.3 claims per 100 employees (2.0 medical only + 3.3 indemnity) in FY 2020/21 to 7.2 claims per 100 employees (3.3 medical only + 4.6 indemnity) in FY 2021/22.

The incurred loss data (paid losses + reserves for future payments) followed the same pattern as the paid loss data. Comparing first report results from the last two years, CWCI found that public self-insureds’ total incurred losses increased by $271.7 million (19.3%) from $1.41 billion ($733.8 million indemnity + $673.8 million medical) in FY 2020/21 to nearly $1.68 billion ($869.9 million indemnity + $809.5 million medical) in FY 2021/22. With the addition of what appears to have been several thousand relatively low-cost COVID lost-time claims — the average incurred indemnity per indemnity claim at first report fell 14.2% to $9,987, but with 25,433 more indemnity claims in FY 2021/22 than in FY 2020/2021, public self-insured total incurred losses increased by $271.7 million (+19.3%) compared to a year earlier.

In addition to the public self-insured data, OSIP also compiles private self-insured claims data, but it is reported on a calendar year basis, so updated figures from California’s private self-insurers will be released this summer.

Employer’s Arbitration Motion Fails for Poor Documentation

Laura Ramos sued her former employer Smile Brands, Inc., for various causes of action pertaining to the termination of her employment. Brands is a dental business, headquartered in Irvine California, with “8,000 dedicated team members at over 650 affiliated dental offices around the United States.” Beginning in 2005, Ramos worked as an office manager for Brands at several offices in the Inland Empire.

Brands moved to compel arbitration. Brands have a software program, named “SmileU,” that they use for human resource documents and employee training. The arbitration agreement was presented as a required document, in a section of SmileU entitled “Courses I Have to Do.”

Upon opening the arbitration agreement, an employee would have needed to scroll through the entire text of the agreement before checking a box at the bottom of the agreement indicating that the employee consented to the terms of the agreement. The arbitration agreement included an opt-out provision that required an opt-out form be mailed to human resources.

In opposing the motion, Ramos asserted, “[T]he Agreement attached to [Brands’ motion] is completely blank, having no date, no timestamp, no signature, no initials, or any other indication it was executed. [Brands] have also attached an excel-type printout [, i.e., the Training Record,] which lists the Agreement as one of several dozen ‘lessons’ that Ms. Ramos supposedly completed. This printout is not credible as there is no signature, date, timestamp or anything establishing its accuracy.”

In a declaration, Ramos declared that she did not sign the arbitration agreement in 2017, and she would not have signed it had she seen it. Ramos declared that she regularly checked the completed documents and courses list in SmileU, and she never saw an arbitration agreement listed there. Ramos declared that the Training Record, filed by Brands, included other errors. For example, the Training Record reflected Ramos completed courses on days she was not at work.

The trial court denied the motion. In its ruling the trial court explained that Phillips’s “declaration does not establish that [Ramos] accessed, reviewed and electronically signed the Arbitration Agreement. [¶] The ‘Mutual Arbitration Agreement’ produced by Brands does not contain an actual ‘electronic signature’ of [Ramos]. [¶] Nowhere in the Arbitration Agreement is [Ramos] identified by name. [¶] Nor does the document contain an electronic signature bearing her name, or any date to show that it is the precise Arbitration Agreement reviewed or signed by [Ramos].”

The Court of Appeal affirmed the trial court in the unpublished case of Ramos v. Smile Brands – E077394 (December 2022).

Brands provided an arbitration agreement without a signature and without a checkmark, but Brands also provided a Training Record reflecting that Ramos’s arbitration agreement was “[c]omplete.” For the sake of argument, the Court of Appeal presumed, without deciding, that such evidence satisfied Brands’ prima facie burden of proof that there was an arbitration agreement between the two parites. At that point, the burden shifted to Ramos.

“In the declaration, Ramos explained that she typically reviews legal documents with her husband and one of her sons, who works in the legal field. In 2012, Brands gave Ramos an arbitration agreement, and she discussed the 2012 arbitration agreement with her husband and son prior to rejecting it. Ramos explained that she would have remembered if she saw the arbitration agreement in 2017 because she had rejected it in 2012 and therefore would have discussed it again with her husband and son. Ramos declared that the first time she saw the 2017 arbitration agreement was when her attorneys showed it to her as part of the instant litigation.

The testimony of a single credible witness may constitute substantial evidence.” (Spencer v. Marshall (2008) 168 Cal.App.4th 783, 793.)

“Ramos’s declaration is not a conclusory, self-serving statement. Rather, the declaration includes an explanation as to why Ramos is able to credibly assert that she did not see nor sign the 2017 agreement. In sum, we are not persuaded that Ramos’s evidence is insufficient. To the contrary, it is substantial evidence on which the trial court could reasonably rely.”

The burden shifted back to Brands to authenticate their evidence of Ramos’s alleged consent.” … “Brands failed to present evidence of who or what created the Training Record and how the Training Record was created or generated.”

Twice Convicted SoCal Insurance Agent Sentenced for Theft

70 year old Francis Okyere, a previously licensed insurance agent in Westlake Village California, was sentenced after pleading no contest to 17 felony counts of identity theft and grand theft by false pretenses.

Okyere was sentenced to two years in county jail and to pay restitution in full.

The Department began an investigation after receiving a complaint from one of Okyere’s ex-relatives that he had stolen the identities of several people in order to open a new insurance agency. The Department’s investigation confirmed that Okyere stole the identities of four victims, in order to open Cyber Access Insurance Agency. The victims’ identities were also used on small business loan applications to fund the fraudulent agency.

The Department’s investigation discovered Okyere had also applied for a series of Small Business Administration and Paycheck Protection Program loans, the federal program to help businesses during the COVID-19 pandemic. The documents related to those loans revealed two of the same stolen victims’ identities had been used to fraudulently secure loan funds in the amount of $38,963. Okyere used the same stolen identities when he applied for forgiveness of one of the loans. Okyere was arrested August 18, 2022.

Okyere’s alleged accomplice, Holly Freeman, 40, was also arrested and charged with four counts of felony identity theft for her alleged involvement in the same scheme.

This is the second time accusations have been brought against Okyere, who has previously been convicted of grand theft following another Department of Insurance investigation which found he stole $65,456 in insurance premiums from small business owners.

The charges in the earlier case arose from an investigation by the Department of Insurance’s Investigation Division, Valencia Regional Office, into multiple complaints filed by clients of Okyere alleging that their insurance policies were canceled despite paying Okyere for the coverage.

The investigation revealed that, between July 2015 and September 2016, Okyere misappropriated at least $65,456 in insurance premiums payments from four small business owners and used those funds for his personal benefit.

Okyere’s actions left the business owners uninsured against potential liability and workers compensation claims.

The Department ordered Okyere to surrender his license in 2019.

The second case was prosecuted by the Healthcare Fraud Division of the Los Angeles County District Attorney’s Office.

Court Rules on “Contentious” Med-Legal Associates Litigation With QME

In 1983, while he was a medical resident, Dr. Bruce E. Fishman was named in a Michigan federal indictment; and he later pled guilty to a single count of conspiracy to distribute a controlled substance. His medical license was revoked in both California and Michigan. After he applied for California reinstatement in 1989, his license was reinstated.

In 2003, Dr. Fishman applied to the Division of Workers’ Compensation to become a QME, and was appointed to be a QME and then reappointed several times thereafter.

In 2008, Dr. Fishman entered into a relationship with Green Lien Collections, Inc., a company owned by Patrick Nazemi. In 2011, Nazemi formed Med-Legal Associates Inc., with the intent to provide management services to med-legal providers. Dr. Fishman entered into a management services agreement with them in November 2012. Thereafter the relationship between them “deteriorated.” At this point, three relevant separate and independent procedural timelines begin: 1) an arbitration between Fishman and Med-Legal; 2) a Qui Tam action against Fishman filed by Nazemi organizations; and 3) the suspension of his QME status by the DWC presumably prompted by a letter send on behalf of Nazemi organizations.

With regard to the first arbitration timeline, after a five-day hearing, in February 2017, the arbitrator issued a final award in favor of Fishman. Med-Legal’s petition to vacate the arbitration award was denied, and judgment was entered in favor of Fishman. Med-Legal appealed, and on March 8, 2019, the Court of Appeal affirmed the judgment.

With regard to the third timeline involving the suspension of Dr. Fishman’s QME status by the DWC, Dr. Fishman filed a petition for writ of mandate, asking the trial court to set aside the adverse decision. In August 2021, the trial court granted his petition for writ of mandate and set aside the DIR’s suspension order. In so ruling, the trial court found that the DIR “prejudicially abused its discretion by failing to consider all relevant facts in connection with its determination of [Dr. Fishman’s] crime is substantially related to the qualification, functions and duties of a provider of services in the workers’ compensation system. By failing to consider all relevant facts – not just the crime – [the DIR] failed to proceed as required by law.”

The instant appeal concerns the second timeline on the Insurance Fraud Prevention Act (IFPA) Qui Tam action against Dr. Fishman. On June 16, 2020, Fishman filed a motion for judgment on the pleadings, seeking dismissal of the sole remaining cause of action for violation of the IFPA, which was ultimately granted by the trial court, finding that the sole remaining cause of action was barred by the doctrine collateral estoppel because of the arbitration decision. Attorney fees were awarded to Dr. Fishman in the amount of $197,500.

The trial court concluded its IFPA dismissal ruling with the following observations: “Ultimately, one lesson emerges from a review of the history of this case and the many other cases in which the Relator sought damages from Dr. Fishman: persistence is one thing; persecution is another. Unfortunately, this case goes well beyond persistence into the realm of persecution.” And further added that “It is time to put this sad and pathetic litigation to an end.”

The Court of Appeal reversed the unpublished case of State of California v. Fishman – B307407 (December 2022).

The Opinion commenced by noting “This appeal is just one slice of contentious litigation….” between Nazemi and his entities and Dr. Fishman.

The appeal concerns three issues resulting from the judgment in the underlying qui tam action: (1) The propriety of the trial court’s order granting Fishman’s motion for judgment on the pleadings; (2) Whether the trial court abused its discretion in awarding Fishman attorney fees; and (3) The correctness of the trial court’s order adding Nazemi and GLC Operations as judgment debtors.

“Regarding the arbitration decision, there are at least two elements of collateral estoppel not satisfied. First, it is unclear whether the issue in the qui tam proceeding is the same as the one at issue in the arbitration case.” Thus for this an other reasons, it was concluded that the trial court erroneously granted Fishman’s motion for judgment on the pleadings.

The Court of Appeal concluded the Opinion with this remark, “the appellate record of this appeal and the prior one have the earmarks of malice; it does seem that (1) Nazemi has a personal vendetta against Dr. Fishman, (2) Nazemi is controlling the corporate entities and directing the litigation, and (3) several judicial or quasi-judicial entities that have weighed in on the question of Dr. Fishman’s honesty have determined that, in that particular case, he did not commit fraud. Unfortunately, given the procedural posture of this case and based upon what is presented in this appellate record, we cannot conclude that judgment can be entered at this time.”

Dignity Health and Tenet Healthcare Agree to Pay $22.5M for False Claims

Several Central Coast health care providers have agreed to pay a total of $22.5 million to resolve allegations that they violated federal and California law by causing the submission of false claims to Medi-Cal related to Medicaid Adult Expansion under the Patient Protection and Affordable Care Act (ACA).

Dignity Health, a not-for-profit health system that owns and operates three hospitals and one clinic in Santa Barbara and San Luis Obispo counties, entered into one agreement with the United States and the California. The second settlement agreement resolves allegations against Twin Cities Community Hospital and Sierra Vista Regional Medical Center, two acute healthcare facility subsidiaries of Tenet Healthcare Corporation operating in San Luis Obispo County.

Pursuant to the ACA, beginning in January 2014, Medi-Cal was expanded to cover the previously uninsured “Adult Expansion” population – adults between the ages of 19 and 64 without dependent children with annual incomes up to 133% of the federal poverty level. The federal government fully funded the expansion coverage for the first three years of the program. Under contracts with California’s Department of Health Care Services (DHCS), if a California county organized health system (COHS) did not spend at least 85% of the funds it received for the Adult Expansion population on “allowed medical expenses,” the COHS was required to pay back to the state the difference between 85% and what it actually spent. California, in turn, was required to return that amount to the federal government.

The two settlements resolve allegations that Dignity, Twin Cities and Sierra Vista knowingly caused the submission of false claims to Medi-Cal for “Enhanced Services” that Dignity purportedly provided to the Adult Expansion patients of a COHS between February 1, 2015 and June 30, 2016, and that Twin Cities and Sierra Vista purportedly provided to such patients between January 1, 2014 and April 30, 2015.

The United States and California alleged that the payments were not “allowed medical expenses” permissible under the contract between DHCS and the COHS; were pre-determined amounts that did not reflect the fair market value of any Enhanced Services provided; and/or the Enhanced Services were duplicative of services already required to be rendered. The United States and California further alleged that the payments were unlawful gifts of public funds in violation of the California Constitution.

As a result of its settlement, Dignity will pay $13.5 million to the United States and $1.5 million to the State of California. Twin Cities and Sierra Vista have agreed to pay $6.75 million to the United States and $750,000 to the State of California.

The civil settlements include the resolution of claims brought under the qui tam, or whistleblower, provisions of the federal False Claims Act by Julio Bordas, the former medical director of the COHS that contracted with Dignity, Twin Cities and Sierra Vista for the provision of health care services under Medi-Cal. Under the act, a private party can file an action on behalf of the United States and receive a portion of any recovery. Mr. Bordas will receive $3.9 million as his share of the federal recovery.

The resolution obtained in this matter was the result of a coordinated effort between the United States Attorney’s Office; the Justice Department’s Civil Division, Commercial Litigation Branch, Fraud Section; and the California Department of Justice. HHS-OIG and DHCS provided substantial assistance.

Six Major Pharmacies Settle WC Prescription Overcharge Claims for $16M

Massachusetts Attorney General Maura Healey announced that retail pharmacy provider Walmart, Inc. has agreed to pay $500,000 after allegedly failing to follow prescription pricing procedures that are in place to keep costs down and prevent overcharges in the workers’ compensation insurance system.

This case is part of an ongoing review by the Attorney General’s Office into prescription pricing procedures in the workers’ compensation system. AG Healey has now reached settlements with Walmart, Express Scripts, Optum Rx, Walgreens, Stop & Shop, and United Pharmacy for workers’ compensation drug pricing violations totaling over $16 million.

The pricing procedures, required by Massachusetts regulations, ensure that prescription costs will be reviewed against certain regulatory benchmarks. According to the assurance of discontinuance, filed this week in Suffolk Superior Court, Walmart allegedly failed to follow those regulations when applying prices for various injured worker prescriptions from 2016 to the present, at Walmart pharmacy locations in Massachusetts.

Under Massachusetts’ Workers’ Compensation system, when employees are hurt on the job, they are entitled to lost wages, compensation for injuries, and payments for certain injury-related expenses. The system sets limits for the cost of prescriptions for injured workers and requires companies to validate prices against certain regulatory benchmarks before processing their charges, such as the Federal Upper Limit for Medicare and the Massachusetts Maximum Allowable Cost.

On November 7 the Attorney General announced that Pharmacy Benefits Manager, Express Scripts, Inc., has agreed to pay $3.2 million after allegedly failing to follow prescription pricing procedures. The terms of the AG’s settlement require Express Scripts to implement procedures to prevent overcharges in the workers’ compensation insurance system. The settlement also ensures that Express Scripts will cooperate with the AG’s Office’s monitoring of the company’s future regulatory compliance.  

Last February the AG announced that Pharmacy benefits manager, Optum Rx, Inc., has agreed to pay $5.8 million after allegedly failing to follow workers’ compensation prescription pricing procedures. The settlement, filed in Suffolk Superior Court, resolves allegations that Optum Rx, in some circumstances, failed to apply various regulatory benchmarks – like the Federal Upper Limit for Medicare and the Massachusetts Maximum Allowable Cost – to its pricing determinations for certain workers’ compensation insurance prescription drug charges. These failures, according to the settlement, allegedly occurred on various injured worker prescriptions filled in Springfield, New Bedford, Boston and Worcester at Walgreens, CVS, and RiteAid locations.

In February 2019 the AG announced that Walgreens has entered into two separate settlement agreements to resolve allegations that it overcharged MassHealth for prescriptions. These settlements both arise from qui tam (whistleblower) actions originally filed in the United States District Court for the Southern District of New York under the federal False Claims Act. Walgreens is a national pharmacy chain with over 260 locations in Massachusetts. .

These cases were handled by staff from Attorney General Healey’s Insurance and Financial Services Division, including Glenn Kaplan, Dr. Burt Feinberg, and Gia Kim.

Environment, Health & Safety Conference Set for January in Long Beach

The National Safety Council is America’s leading nonprofit safety advocate – and has been for more than 100 years. As a mission-based organization, it works to eliminate the leading causes of preventable death and injury, focusing our efforts on the workplace, roadway and impairment.

Funded by the McElhattan Foundation, its Work to Zero program aims to eliminate workplace fatalities through the use of technology. To learn more about creating a safer workplace interested parties are invited to attend The Future of EHS 2023 Environment, Health & Safety Conference beginning on Jan. 31, 2023 through Feb. 2nd in Long Beach, California. This conference brings together EHS professionals, business leaders, researchers and solutions providers for an open exchange of forward-looking ideas, the latest in safety innovations and best practices.

Formerly known as the Campbell Institute Symposium and Work to Zero Summit and Expo, The Future of EHS will continue to provide leading-edge content in a new and engaging format.

The National Safety Council also just released a white paper through its Work to Zero initiative: Managing Risks with EHS Software and Mobile Applications. The report builds on the program’s initial 2020 research and outlines how employers can use environment, health and safety software and mobile applications to enhance their safety operations to prevent serious injuries and fatalities on the job.

EHS software and mobile applications are a crucial component of any effective risk management strategy and advancements in these powerful, comprehensive tools have made it easier for organizations of all sizes to access and analyze life-saving insights,” said Emily Whitcomb, NSC director of innovation and Work to Zero. “In addition to helping leaders select the best program provider, this report demonstrates how to maximize the benefits of EHS software to help organizations further their unique safety goals and ultimately create safer outcomes for their workers.”

For this white paper, the Work to Zero initiative analyzed more than a dozen academic and industrial publications as well as conducted interviews with software providers for high-risk industries, such as construction and warehousing, to assess the latest trends and benefits of four distinct EHS software categories: risk management and hazard identification, permit management, incident management and safety auditing. In addition, several case studies were conducted with employers that adopted EHS software to further understand the benefits. Compared to utilizing traditional, spreadsheet-based safety tracking, the Work to Zero initiative found organizations that adopt these modules can gain several advantages in preventing workplace injuries and deaths, including:

– – Generating deeper safety insights – In an EHS management system, data is centralized and acquired from a variety of sources across the enterprise, making it easier for employers to track, monitor and evolve safety practices.

– – Ensuring compliance with regulations – As a cloud-based system, EHS platforms can help companies stay up to date with regulatory changes and provide custom inspection checklists to ensure workplaces are both safe and lawful.

– – Accessing cost-savings – In addition to preventing employee injuries, EHS software tools can mitigate costs associated with employee compensation, recruitment, and illness.

– – Streamlining reporting through mobile technology – EHS software systems can be deployed and accessed on remote devices like smartphones and tablets to enable employers to access audits, incident reports and real-time safety alerts.

Despite the many benefits of EHS software and mobile applications, the Work to Zero initiative uncovered common barriers to widespread EHS software adoption, including challenges large enterprises face with customizing their EHS packages and the limited availability of comprehensive EHS software for smaller organizations.

In addition, a certain level of technical expertise is needed to operate these platforms, which is why training is necessary or it’s important to select a software provider that offers technical support and resources. As with any digital change, educating across all levels of the organization is a critical step in technology deployment.

Essilor Laboratories Resolves Kickback Case for $23.8 M

The California Insurance Commissioner announced that Essilor Laboratories of America, Inc. has agreed to a $23.8 million settlement in a lawsuit which alleged the company violated the Insurance Frauds Prevention Act. The suit alleged Essilor provided kickbacks and other unlawful incentives to eye care providers that ultimately hurt consumers by unfairly driving them toward more expensive services.

Essilor manufactures, markets, and distributes optical lenses and equipment used to produce optical lenses throughout California and the nation.

This settlement brings to a close a 2016 whistleblower lawsuit brought against Essilor. After investigating the allegations, the Commissioner filed a complaint in intervention in 2021.

The lawsuit alleged that Essilor provided unlawful kickbacks to eye care providers, with an up-front payment of tens of thousands of dollars, or sometimes hundreds of thousands of dollars, in exchange for these providers’ promises to send business to Essilor for a period of anywhere between three to five years. The providers were free to use the up-front payment from Essilor in any manner that they chose so long as they hit the volume requirements pursuant to the agreement.

Additionally, the lawsuit alleged Essilor further provided kickbacks to California eye care providers through a program called “PracticeBuilder” where providers were given cash payments for using Essilor lenses and laboratory services. The cash payments through the PracticeBuilder program were done to reward the eye care providers who prescribed and dispensed Essilor’s more expensive lenses and coatings and to use its laboratory services.

Unlawful incentives, like those alleged in the lawsuit, are prohibited under the Insurance Frauds Prevention Act as these illegal acts can, and do, influence medical decision making. California laws are in place to protect patients and encourage medical decision makers to act solely in the best interest of their patient.

The lawsuit further alleges Essilor knowingly submitted false claims to California private payors, including insurance companies, health care savings plans, and vision benefit organizations.

The resolution is the result of a collaborative prosecution between the Commissioner and the whistleblower’s counsel, Baron & Budd, P.C., The Weiser Law Firm, and Keller Grover, LLP.

“This settlement is an important victory for consumers and patients who were the targets of corporate greed,” said the Insurance Commissioner. “Health insurance fraud causes billions of dollars of premium losses annually, resulting in increased cost to Californians. This settlement sends a strong signal that fraudulent practices that hurt California consumers will not be tolerated and will be prosecuted to the full extent of the law. It also will restore key protections for eyecare patients so they receive care and recommendations that are in their best interest.”

DWC Opens Registration for 30th Annual Educational Conference

The California Division of Workers’ Compensation announced that registration for its 30th annual educational conference is now open.

The conference will take place in person March 9-10, 2023 at the Oakland Marriott City Center Hotel and March 23-24, 2023 at the Los Angeles Airport Marriott.

This annual event is the largest workers’ compensation training in the state and allows claims administrators, attorneys, medical providers, return-to-work specialists, employers, human resources and others to learn firsthand about the most recent developments in the system.

Attendees will be interested in learning about current topics from a variety of workers’ compensation experts from DWC, other state and public agencies, and the private sector. The presenters include the Administrative Director, DWC Judges and Senior Staff, and outside experts.

The topics this year are expected to include the following:

– – DWC Update
– – Top Ten Litigation Tips
– – QME Med-Legal/Regulations Update
– – Rating – Legal Ethics
– – Trends in WC Medical Treatment
– – Audit Unit – Women in Law and Business
– – MTUS/Formulary

DWC has applied for continuing educational credits by attorney, rehabilitation counselor, case manager, disability management, human resource and qualified medical examiner certifying organizations among others.

Organizations who would like to become sponsors of the DWC conference can do so by going to the IWCF Website.

Attendee, exhibitor, and sponsor registration may be found at the DWC Educational Conference Webpage.

Proof of “Prejudice” Required for Laches to Bar 20 Year Old Lien

Ramiro Rodriguez claimed injury to the neck, arms, back, shoulders, nervous system, depression and anxiety through February 20, 2003 while employed as a forklift operator by Las Vegas LA Express. The employer denied the claim in its entirety.

Julie Goalwin, Ph.D. evaluated applicant as the psychiatric qualified medical evaluator (QME) on June 21, 2003 and served her report on the parties on July 14, 2003. Dr. Goalwin sold the receivables for her evaluation and report of applicant to Angoal Medical Collections on July 1, 2003.

Janine Angelotti, D.C. evaluated applicant as the applicant’s chiropractic QME on June 25, 2003. Dr. Angelotti also filed a lien claim in the amount of $2,845 for her evaluation and report on July 21, 2003.

Applicant’s claim was dismissed for lack of prosecution on February 3, 2010.

The matter proceeded to trial on December 19, 2019 regarding Angoal Medical Collections’ lien for Drs. Goalwin and Angelotti. Several issues were identified as in dispute including laches. The WCJ issued the F&O in which he found that the lien claim was barred by laches. All other issues were found to be moot and were not addressed in the F&O.

The WCAB panel granted the lien claimants petition for reconsideration, rescinded the F&O and remanded the case for further proceedings in the case of Ramiro Rodriguez v Las Vegas LA Express – ADJ1424195 (November 2022).

In common law legal systems, laches is a lack of diligence and activity in making a legal claim, or moving forward with legal enforcement of a right, particularly in regard to equity. In this case the lien claimant contends on reconsideration that the WCJ erroneously found its lien was barred by laches although defendant did not prove prejudice from the delay in pursuing the lien.

The equitable doctrine of laches applies to proceedings before the Appeals Board. (See Truck Ins. Exchange v. Workers’ Comp. Appeals Bd. (Kwok) (2016) 2 Cal.App.5th 394, 401-402 [81 Cal.Comp.Cases 685] [“The appeals board has broad equitable powers with respect to matters within its jurisdiction. . . . Thus, equitable doctrines such as laches are applicable in workers’ compensation litigation.”].) The Appeals Board may apply the doctrine of laches to lien claims. (Kaiser Foundation Hospitals v. Workers’ Comp. Appeals Bd. (Martin) (1985) 39 Cal.3d 57, 68, fn. 11 [50 Cal.Comp.Cases 411] [“a lien claim may be barred by laches if there is unjustifiable delay”].”

However “the affirmative defense of laches requires unreasonable delay in bringing suit ‘plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.’ Prejudice is never presumed; rather it must be affirmatively demonstrated by the defendant in order to sustain his burdens of proof and the production of evidence on the issue. Generally speaking, the existence of laches is a question of fact to be determined by the trial court in light of all of the applicable circumstances…”

“It is acknowledged that there was a substantial delay between the lien claim’s filing and lien claimant’s pursuit of reimbursement. The WCJ in his Opinion on Decision and Report indicates that prejudice to defendant may be presumed by this delay. However, defendant must show that it was actually prejudiced by the delay.”

In this matter, defendant only offered two exhibits at trial to dispute the lien claim: an EAMS lien printout for the case and Elaine Taite’s deposition transcript. No witnesses were offered by defendant. The WCJ presumed that defendant’s file has been destroyed, but there is no evidence in the record to support this presumption. Moreover, defendant has not demonstrated how it was prejudiced by the delay. Consequently, the evidence does not support a finding that the lien is barred by laches.

The case was returned to the trial level for further proceedings.