Category: Daily News

Kenneth Harlan was employed by Affordable Plumbing and Rooter for six or seven months until he was injured on August 3, 2010 while performing plumbing work at a new construction project, in Torrance California. He was injured while capping a sewage pipe that was placed in a three foot trench. He was paid in cash, depending on the type of job.

Hiroshi Tange was the homeowner who owned the property in Torrance, and had a homeowners policy of insurance with Farmers at the time of this injury.

During the first day of trial, Affordable was shown to have a Contractor’s License but was uninsured for workers’ compensation. With this additional information the case was set for second day of trial.

Hiroshi Tange, the homeowner testified that he had no recollection of seeing applicant work at the property at any time. He did not hire a plumbing contractor. The plumbing work was done by his brother-in-law, a handyman, who was not a licensed contractor, and a tile setter. The handyman did most of the plumbing under the house. The homeowner could not recall who dug the trench and laid the pipe to the sewer which was being capped by applicant.

The WCJ found that Harlen was an employee of the homeowner, Hiroshi Tang, at the time of the injury. Farmers Insurance and Hiroshi Tange petitioned for Reconsideration which was denied for the reasons stated in the WCJ’s report, which was adopt and incorporated in the panel decision of Harlan v Affordable Plumbing – ADJ7507358 (April 2023)

In his Report the WCJ noted that the type of work being performed (Plumbing) requires a license in good standing in California (Business and Professions Code Section 7000 et. seq.).

A contractor’s license is suspended, as a matter of law, at the time of hire of an employee in the absence of compensation insurance (Labor Code Section 3700; Business and Professions Code Section 7125.2).

The burden of proof on an issue lies with the party having the affirmative of the issue (Labor Code Sec. 5705). The applicant has the affirmative on the issue of employment and must prove the elements by a preponderance of the evidence.

Labor Code Section 2750.5 provides in pertinent part as follows: “There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to Chapter 9 (commencing Section 7000) of Division 3 of the Business and Professions Code, or who is performing such services for a person who is required is an employee rather than an independent contractor…”

The WCJ noted that “Applicant’s testimony is more plausible than that of the homeowner on several points. … None of the work being done on the construction site was performed by contractors who were insured for workers’ compensation. … Review of this record shows that the testimony of the applicant has a greater likelihood of truth than that of the homeowner.”

Thus the WCJ concluded that “Affordable was doing work which required an active license. The license was suspended due to the lack of workers’ compensation insurance. As an employee of the unlicensed contractor Harlan is presumed to be the employee of the person or persons who benefitted by his labor and has control over the project” citing (Laeng v. Workmen’s Comp. Appeals Bd. (1972) 6 Cal. 3d 774 37 CCC 185).

The WCAB panel agreed with this conclusion stating “We have given the WCJ’s credibility determination great weight because the WCJ had the opportunity to observe the demeanor of the witnesses. (Garza v. Workmen’s Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ’s credibility determination(s).”

Michael Ramrakha was employed as a correctional officer by the California Department of Corrections and Rehabilitation. He filed three applications for adjudication of claims. Benefits were paid in all three cases that involved internal medical injury issue. Two of the cases were specific injuries, and the third a continuous trauma.

Defendant requested to take credit for $13,835.88 that was paid from ADJ4508242 to ADJ1415534 and $13,997.37 paid from from ADJ4508242 to ADJ8919366.1

The main issue for this WCJ to decide in this matter was whether or not SCIF was entitled to take credit for overpayments from one industrial injury claim for permanent disability in another claim for permanent disability. In both cases, the WCJ denied to allow credit.

Reconsideration was granted in one of the two cases in the joint panel decision of Ramrakha v State of California Department of Corrections – ADJ8919366-ADJ4508242-ADJ1415534 (March 2023)

In her Opinion on Decision and in her Report, the WCJ faults defendant for failing to file a petition for credit pursuantWCAB Rule 10555(a). (Cal. Code Regs., tit. 8, § 10555(a).)

Subdivision (a) of the rule states: “When a dispute arises as to a credit for any payments or overpayments of benefits pursuant to Labor Code section 4909, any petition for credit shall include: (1) A description of the payments made by the employer; (2) A description of the benefits against which the employer seeks a credit; and (3) The amount of the claimed credit.”

The WCAB panel noted that SCIF did provide to applicant’s attorney a petition for credit that complied with Rule 10555(a), albeit not until the day of trial on January 15, 2020. It concluded however that the better practice is to submit a petition for credit “when [as soon as] a dispute arises as to a credit for any payments or overpayments of benefits pursuant to Labor Code section 4909.”

However, the rule includes nothing that authorizes or requires disallowance of credit for failure to comply with the rule’s requirements regarding the content of “any petition for credit.”

Thus the panel concluded that “defendant’s alleged failure to timely comply with WCAB Rule 10555(a) is not a basis for disallowing its claim for credit.“

But the panel went on to say that the “WCJ is correct that the determination of whether to allow defendant credit for benefits voluntarily paid in error, pursuant to Labor Code section 4909, is within the WCAB’s discretionary authority. The Board may consider a weighing of the equities between the parties, as well as whether the applicant’s compensation award will be seriously impaired if credit is allowed.”

“In this case, there is no evidence that applicant improperly collected undue compensation without notifying defendant of the possibility that excess payments were being made. On the other hand, defendant was in control of the manner in which it paid permanent disability indemnity benefits, so the extent to which defendant’s actions resulted in significant overpayment of permanent disability indemnity is defendant’s responsibility.”

“Nevertheless, the balance of equities between the parties is not the only factor to be considered. The purpose of Labor Code section 4909 must be considered as well. The statute was intended to encourage employers to make voluntary payments to injured employees and, in appropriate circumstances, to obtain a subsequent reduction in the amount of workers’ compensation benefits determined to be due the employee. (Appleby v. Workers’ Comp. Appeals Bd. (1994) 27 Cal.App.4th 184, 191 [59 Cal.Comp.Cases 520].)”

Defendant’s payment of permanent disability indemnity for the two specific injuries was consistent with the intent of section 4909: to encourage employers to voluntarily pay compensation and, where appropriate, to obtain a subsequent reduction of compensation ultimately determined to be due the employee. Accordingly, we will amend the WCJ’s decisions to allow defendant credit in ADJ1415534 for permanent disability indemnity paid in ADJ4508242.”

However the panel affirmed the WCJ’s denial of credit for permanent disability indemnity owed by defendant on the cumulative trauma in ADJ8919366, noting that defendant’s “administration of benefits in the cumulative trauma case has resulted in defendant claiming a credit of almost $14,000.00 on a permanent disability award of $67,907.50, which represents an approximately 20 percent curtailment of applicant’s permanent disability indemnity benefits.”

“Although defendant voluntarily paid benefits on the cumulative trauma claim and eventually claimed credit as envisioned by section 4909, defendant did so in a manner and under circumstances that resulted in a material impairment of applicant’s permanent disability award in ADJ8919366. (See State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (Dunehew) (2011) 76 Cal.Comp.Cases 1251 (writ den.) [allowing defendant credit for compensation paid for 2003 injury would be destructive of purpose of permanent disability award for 2007 injury].)”

National Nurses United, with nearly 225,000 members nationwide, is the largest union and professional association of registered nurses in U.S. history.

In 2009, California Nurses Association/National Nurses Organizing Committee played a lead role in bringing state nursing associations across the nation together into one national organization, National Nurses United (NNU). At its founding convention, NNU adopted a call for action to counter what it called “the national assault by the healthcare industry on patient care conditions and standards for nurses,” and to promote a unified vision of collective action for nurses.

This month, nurses across California are applauding the introduction of A.B. 1156, authored by Assemblymember Mia Bonta (D-Oakland) and sponsored by California Nurses Association (CNA). The organization held a press conference about the proposed law on April 5 at the Kaiser Permanente Oakland Medical Center.

If passed, the presumptive eligibility bill would automatically provide workers’ compensation to nurses and other health care workers for a variety of injuries and illnesses. The association says that amidst a staffing crisis in the nursing profession, this legislation would help increase the retention of skilled nurses in California hospitals.

“Our workers’ compensation system is currently set up to delay and deny the healing that nurses need after we are injured and sickened on the job,” said Valerie Delgado, an RN at Kaiser Permanente Oakland Medical Center’s Covid-19 unit. “This not only hurts nurses, but also reduces the quality of patient care because it reduces the number of healthy and skilled nurses in hospitals.”

“Our frontline health care workers face a clear gender gap in presumptive access to worker’s compensation, simply because they are in a female-dominated profession,” explained Assemblymember Bonta (D-Oakland). “Simply put, there are certain injuries and illnesses that are presumed to be work-related for firefighters and police officers, allowing the employee to more easily access benefits, covering medical and other expenses resulting from the employee being unable to work. Our healthcare heroes deserve the same presumption.”

“Nurse’s on-the-job injuries – MRSA [Methicillin-resistant staphylococcus aureus], respiratory diseases, and physical injuries – are not presumed to be related to the job,” said Bonta. “A.B. 1156will change that and ensure that nurses are treated with the same respect, dignity, and care they deserve and show patients every single day.”

If passed in its current form, A.B 1156 would define “injury,” for a hospital employee who provides direct patient care in an acute care hospital, to include infectious diseases, cancer, musculoskeletal injuries, post-traumatic stress disorder, and respiratory diseases.

The bill would include the 2019 novel coronavirus disease (COVID-19) from SARS-CoV-2 and its variants, among other conditions, in the definitions of infectious and respiratory diseases.

The bill would create rebuttable presumptions that these injuries that develop or manifest in a hospital employee who provides direct patient care in an acute care hospital arose out of and in the course of the employment. The bill would extend these presumptions for specified time periods after the hospital employee’s termination of employment.

Ma Na Tam, worked for KMS Automotive Inc., dba Browning Mazda of Alhambra. Tam began working at the dealership in April 2017, after signing a number of employment-related documents and forms, including a form entitled “EMPLOYEE ACKNOWLEDGEMENT AND AGREEMENT – AGREEMENT TO ARBITRATE.”

In April 2020, approximately three years after commencing employment, Tam filed a first amended complaint against the dealership and Adrian Hernandez, a dealership employee and desk manager for sales or finance manager. The complaint allegations depicted the dealership as a racially and sexually charged environment in which Tam and other Asian employees and customers were subject to harassing, discriminatory, and retaliatory acts. Tam alleged Hernandez drugged and raped her on multiple occasions, and the dealership did not take appropriate action in response to her complaints.

Seven causes of action were asserted against the dealership alone, and five causes of action were alleged against both the dealership and Hernandez. There are no separate causes of action asserted solely against Hernandez.

In August 2020, the dealership filed a motion to compel arbitration. Hernandez filed a joinder to the dealership’s notice of motion and motion to compel arbitration and dismiss or stay action.

Tam opposed the motion, arguing the arbitration agreement was unconscionable and that there was no meeting of the minds, both because she was given very little time to sign a large volume of employment-related materials, and because she has a limited command of English. Tam also argued that her drugging and rape-related claims were outside the scope of the arbitration agreement.  Finally, Tam argued she should not be required to arbitrate her claims for violation of the Unfair Business Practices Act and for equitable relief, and that severing these and the drugging and rape-related claims would raise the possibility of conflicting determinations by the arbitrator and the court.

On January 19, 2021, the court denied the dealership’s motion to compel arbitration. The court’s minute order explained, Code of Civil Procedure section 1281.2(c) “gives courts discretion to deny a petition to compel arbitration when [a] party to the arbitration agreement is also a party to a pending court action . . . with a third party arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.” Relying on Civil Code section 3513, which prohibits private parties from waiving the advantage of a law established for a public reason, the trial court found invalid the language in the arbitration agreement that would have otherwise prohibited the trial court from refusing to stay or deny arbitration under section 1281.2(c).

The Court of Appeal reversed the court’s denial of the motion to compel and direct the court to order the parties to arbitration in the unpublished case of Tam v. KMS Automotive – .B311407 (April 2023).

Whether as an agent or under the doctrine of equitable estoppel, the law permits Hernandez, a nonsignatory to the arbitration agreement, to compel Tam to arbitrate her claims against him. Because Hernandez can compel arbitration, he is not a third party within the meaning of section 1281.2(c). (Laswell v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399 at pp. 1405-1406; Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th 696 at p. 709.).

Tam’s claims against Hernandez for sexual assault, harassment, intentional infliction of emotional distress, and unfair business practices are intimately founded in and intertwined with the employment relationship she had with the dealership, so there is no question that they fall within the scope of the arbitration agreement.

The Court of Appeal was unpersuaded by Tam’s explanations about why Hernandez cannot enforce the arbitration agreement under an agency theory or the doctrine of equitable estoppel, and why those principles do not preclude application of section 1281.2(c). Tam’s arguments present a limited view of the applicable case law and ignore the broad wording of the arbitration agreement here.

In addition to the principal and agent relationship between the dealership and Hernandez, section 1281.2(c) is also not applicable here because the equitable estoppel doctrine prevents Tam from avoiding arbitration when her claims against Hernandez, even the tort claims, are inextricably intertwined with her claims against the dealership, all of which arise from and relate to the contractual employment relationship governed by the arbitration agreement. (See Molecular Analytical, supra, 186 Cal.App.4th at pp. 714-715 [courts review the nature of claims asserted against nonsignatory defendant and relationships of persons, wrongs, and issues when applying equitable estoppel] Rice v. Downs (2016) 248 Cal.App.4th 248 at p. 186 [broadly worded arbitration language may extend to tort claims arising from contractual relationship between parties].)

The arbitration agreement signed by Tam covered “any and all claims” between Tam and the dealership or its employees “arising from, related to, or having any relationship or connection whatsoever” with Tam’s employment by or with the dealership, “whether sounding in tort, contract, statute or equity, . . . . [including] without limitation, any claims of discrimination, harassment, or retaliation,” including claims under FEHA.

The Court also noted that a recent federal law entitled “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” amends the Federal Arbitration Act to prohibit employers from requiring employees to resolve sexual harassment and sexual assault claims through private arbitration unless the employee – after the claim arises – voluntarily elects to participate in arbitration. This law was not in effect when the trial court made its decision, or at the time of the alleged acts. No party argues that the law has retroactive effect.

However the dissenting opinion discusses this new legislation, and his views of the policies behind it, to fashion a new rule that would make all arbitration provisions purporting to cover claims based on sexual assault or sexual harassment per se unconscionable.

However the majority declined to adopt the position articulated in the dissent, which in effect attempts to impose the new legislation in this (and other similar) cases by judicial fiat, and contrary to the express terms of the legislation regarding the limits of its retroactive application.

Gisele Thao Nguyen is a pharmacist who resides in Huntington Beach, California. Nguyen was the sole owner of Gisele Nguyen, Inc. d/b/a Natico Pharmacy, a community pharmacy that was operated at 10212 Westminster Av 109 Garden Grove, CA 92843.

Natico Pharmacy ceased operating in December 2018.

The United States alleged that, from at least Jan. 1, 2014, through Dec. 31, 2018, Nguyen fraudulently submitted claims to Part D of the Medicare Program for prescription medications that were never dispensed to beneficiaries.

According to the United States, inventory records showed that Natico Pharmacy did not purchase enough of these medications from wholesaler distributors to fill all of the prescriptions billed to Medicare.

Nguyen has agreed to pay $3,933,993 to resolve allegations that she fraudulently billed the Medicare Program for medications that were never dispensed.

Nguyen has reviewed her financial situation and warrants that she is solvent within the meaning of 11 U.S.C. §§ 547(b)(3) and 548(a)(l)(B)(ii)(I) and shall remain solvent following payment to the United States of the Settlement Amount.

According to the California Board of Pharmacy records, her license RPH 57192 status at this time is “clear.”

“Federal health care programs provide critical health care services to millions of Americans,” said Principal Deputy Assistant Attorney General Brian M. Boynton, head of the Justice Department’s Civil Division. “We will hold accountable those who seek to defraud these programs, including by billing for goods or services that they did not provide.”

The resolution obtained in this matter was handled by the Justice Department’s Civil Division, Commercial Litigation Branch, Fraud Section, with assistance from the U.S. Attorney’s Office for the Central District of California.

The investigation and resolution of this matter illustrates the government’s emphasis on combating health care fraud. Tips and complaints from all sources about potential fraud, waste, abuse, and mismanagement, can be reported to the Department of Health and Human Services at 800-HHS-TIPS (800-447-8477).

The matter was investigated by Senior Trial Counsel Jennifer Cihon, with assistance from Assistant U.S Attorney Zoran J. Segina for the Central District of California.