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The Division of Workers’ Compensation has issued a Notice of Public Hearing to amend the Copy Service Price Schedule. The Zoom public hearing is scheduled for Monday, August 30, 2021 at 10 a.m.

The proposed updates to the regulations include:

- - An increase of the flat rate for copy services from $180 to $225 for records up to 500 pages, and includes all associated services such as pagination, witness fees for delivery of records, and subpoena preparation.
- - Several provisions to address improper payments, such as a preclusion for medical providers to improperly charge for inspection of records, maximum witness fees from third party release of information services, and an increase for bills not paid within 30 days of billing.
- - A procedure to object to services provided within 30 days of a request by an injured worker to an employer, claims administrator or workers’ compensation insurer for copies of records in the employer’s possession that are relevant to the claim. It is not uncommon for an employee’s attorney to subpoena records even though they have been subpoenaed by defendant. The 30-day waiting period is triggered when the copy service advises the claims administrator of an intent to copy records from a specific location for a specific dispute. The parties would then have an opportunity to object within the waiting period. Once an objection is raised, the parties must meet and confer to resolve the objection.
- - DWC will also charge and collect retrieval costs for records requested under the Public Records Act.

The proposed amendments to the Copy Service Price Schedule are exempt from the rulemaking provisions of the Administrative Procedure Act. DWC is required to have a 30-day public comment period, hold a public hearing, respond to all the comments received during the public comment period, and publish the order adopting the regulations online. Members of the public may review and comment on the proposal until August 30, 2021.

Members of the public may attend the public meeting:

Access Information
- - Join from PC, Mac, Linux, iOS or Android: https://dir-ca-gov.zoom.us/j/83062005767
- - Or Telephone:
- - Dial: USA 216 706 7005
- - USA 8664345269 (US Toll Free)
- - Conference code: 956474

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/ 2021 News, Daily News
A new study from the Workers Compensation Research Institute examines the effects of must-access prescription drug monitoring programs (PDMPs) and recent regulations limiting the duration of initial opioid prescriptions on various outcomes for workers with work-related injuries.

"The policies examined were part of an extensive effort by stakeholders at local, state, and national levels to address potential excessive opioid prescribing and opioid abuse," said John Ruser, president and CEO of WCRI. "Must-access PDMPs reduced the amount of opioids prescribed to workers without changing the likelihood that workers had any opioid prescriptions."

The study, Effects of Opioid-Related Policies on Opioid Utilization, Nature of Medical Care, and Duration of Disability, explores how policies limiting access to opioid prescriptions contributed to changes in opioid utilization and how they altered other medical care related to the management of pain. The study estimates the effects of state-level opioid policies by comparing outcomes in states that adopted the policies relative to states that did not, while accounting for other factors that could have influenced changes in opioid utilization and the other outcomes studied.

In California, the prescription drug monitoring program is called Controlled Substance Utilization Review and Evaluation System (CURES). CURES is a database of Schedule II, Schedule III, Schedule IV and Schedule V controlled substance prescriptions dispensed in California. Section 11165.4 of the Health and Safety Code, sets forth the requirements for mandatory consultation of CURES.

The following are among the study’s findings:

- - Must-access PDMPs reduced the amount of opioids prescribed by 12 percent in the first year.
- - Regulations limiting duration of initial opioid prescriptions resulted in a 19 percent decrease in the amount of opioids among claims with opioids.
- - For most injuries, there was little evidence that workers increased the use of other types of care due to must-access PDMPs. However, for neurologic spine pain cases, the policies resulted in an increase in the number of non-opioid pain medications and an increase in whether workers had interventional pain management services.
- - Must-access PDMPs and limits on initial prescriptions had little impact on the duration of temporary disability benefits captured within 12 months after an injury.

The analysis includes information for workers injured between October 1, 2009, and March 31, 2018, in 33 states: Alabama, Arizona, Arkansas, California, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, and Wisconsin. These states represent 85 percent of benefits paid in 2017.

The authors of this study are David Neumark and Bogdan Savych. To learn more about this study or to download a copy, visit https://www.wcrinet.org/reports/effects-of-opioid-related-policies-on-opioid-utilization-nature-of-medical-care-and-duration-of-disability ...
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/ 2021 News, Daily News
In June 2016, Kirk Hollingsworth was involved in a fatal accident while working for defendant Heavy Transport, Inc. (HT).

Hollingsworth’s wife and son, plaintiffs Leanne and Mark Hollingsworth, filed a wrongful death complaint in superior court against HT and Bragg Investment Company, Inc.

Plaintiffs alleged that HT lacked the required workers’ compensation insurance at the time of the incident, and therefore plaintiffs were entitled to sue Bragg/HT under Labor Code section 3706, which states, "If any employer fails to secure the payment of compensation, any injured employee or his dependents may bring an action at law against such employer for damages . . . ."

Bragg/HT then filed an application for adjudication of claim with the Workers’ Compensation Appeals Board. Only one of these tribunals could have exclusive jurisdiction over plaintiffs’ claims, and in a previous court of appeal opinion, Hollingsworth v. Superior Court (2019) 37 Cal.App.5th 927 (Hollingsworth I), the court held that the superior court, which had exercised jurisdiction first, should resolve the questions that would determine which tribunal had exclusive jurisdiction over plaintiffs’ claims.

Following remand, plaintiffs asserted they were entitled to a jury trial on the factual issues that would determine jurisdiction. The superior court denied plaintiffs’ request and held a hearing in which it received evidence and heard testimony regarding HT’s insurance status. The superior court determined that HT was insured by a workers’ compensation policy at the time of Hollingsworth’s death, and therefore the WCAB had exclusive jurisdiction over the matter. Plaintiffs appealed. The court of appeal affirmed the trial court in the published case of Hollingsworth v. Heavy Transport, Inc.

Plaintiffs assert on appeal, that they were entitled to a jury trial on the fact issues that would determine jurisdiction. The appellate court disagreed.

Although a jury may determine questions relevant to workers’ compensation exclusivity when the issue is raised as an affirmative defense to common law claims, jurisdiction under Labor Code section 3706 is an issue of law for the court to decide.

Citing numerous decisions, the court said that it is the general rule that "[i]n a civil case . . . personal and subject matter jurisdiction ordinarily are issues for the court, not the jury."

Because plaintiffs asserted jurisdiction under Labor Code section 3706, it was appropriate for the court, not a jury, to determine the questions relevant to jurisdiction. Plaintiffs did not have a right to a jury trial on these facts ...
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/ 2021 News, Daily News
Three years ago, pharma giant Pfizer paid $24 million to settle federal allegations that it was paying kickbacks and inflating sales by reimbursing Medicare patients for out-of-pocket medication costs.

By making prohibitively expensive medicine essentially free for patients, the company induced them to use Pfizer drugs even as the price of one of those medicines, covered by Medicare and Medicaid, soared 44% to $225,000 a year, the Justice Department alleged.

Now, Kaiser Health News reports that Pfizer is suing the federal authorities to legalize essentially the same practice it was accused of three years ago - a fighting response to a federal crackdown that has resulted in a dozen drug companies being accused of similar practices.

A Pfizer win could cost taxpayers billions of dollars and erase an important control on pharma marketing after decades of regulatory erosion and soaring drug prices, say health policy analysts. A federal judge's ruling is expected any day.

"If this is legal for Pfizer, Pfizer will not be the only pharmaceutical company to use this, and there will effectively be a gold rush," government lawyer Jacob Lillywhite said in oral arguments last month.

Pfizer's legal argument "is aggressive," said Chris Robertson, a professor of health law at Boston University. "But I think they've got such a political tailwind behind them" because of pocketbook pain over prescription medicine - even though it's caused by pharma manufacturers. Pfizer's message, "'We’re just trying to help people afford their drugs,' is pretty attractive," he said.

That's not all that's working in Pfizer's favor. Courts and regulations have been moving pharma's way since the Food and Drug Administration allowed limited TV drug ads in the 1980s. Other companies of all kinds also have gained free speech rights allowing aggressive marketing and political influence that would have been unthinkable decades ago, legal scholars say.

Among other court arguments, Pfizer initially claimed that current regulation violates its speech protections under the First Amendment, essentially saying it should be allowed to communicate freely with third-party charities to direct patient assistance.

"It's infuriating to realize that, as outlandish as they seem, these types of claims are finding a good deal of traction before many courts," said Michelle Mello, a professor of law and medicine at Stanford University. "Drug companies are surely aware that the judicial trend has been toward more expansive recognition of commercial speech rights."

Pfizer's lawsuit, in the Southern District of New York, seeks a judge's permission to directly reimburse patient expenses for two of its heart-failure drugs each costing $225,000 a year. An outside administrator would use Pfizer contributions to cover Medicare copays, deductibles and coinsurance for those drugs, which otherwise would cost patients about $13,000 a year.

Letting pharma companies put money directly into patients' pockets to pay for their own expensive medicines "does induce people to get a specific product" instead of shopping for a cheaper or more effective alternative, said Stacie Dusetzina, an associate professor of health policy at Vanderbilt University. "It's kind of the definition of a kickback."

Government rule-makers have warned against such payments since the launch of Medicare's Part D drug benefit in 2006. Drug companies routinely help privately insured patients with cost sharing through coupons and other means, but private carriers can negotiate the overall price.

Because Congress gave Medicare no control over prescription drug prices, having patients share at least part of the cost is the only economic force guarding against unlimited price hikes and industry profits at taxpayer expense.

At the same time, however, regulators have allowed the industry to help patients with copays by routing money through outside charities - but only as long as the charities are "bona fide, independent" organizations that don't match drugmaker money with specific drugs.

Several charities have blatantly violated that rule in recent years by colluding with pharma companies to subsidize particular drugs, the Justice Department has alleged. A dozen companies have paid more than $1 billion to settle allegations of kickback violations.
...
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/ 2021 News, Daily News
The WCIRB just published its 2021 State of the System report. Highlights of the report show the recent changes in premium revenue, claims, and costs.

The sharp and sudden employment drops in 2020 significantly impacted workers’ compensation exposure, the number of claim filings and claims activity. Premium levels dropped sharply in 2020 due to continued insurer rate decreases and the pandemic-related economic slowdown. Premiums are forecast to increase modestly in 2021 with economic recovery and the impact of insurer rate decreases moderating.

The insurance market remains stable and non-concentrated. Insurer charged rates continue to decrease and are now at a 50-year low. Average indemnity claim costs are rising, while average medical claim costs remain relatively flat. The impact of the pandemic on average claim costs in the long-term remains uncertain.

Average insurer rates charged for the first quarter of 2021 are only 2% below the rates charged in 2020, possibly signaling a sign of moderating insurer rate decreases and potential future hardening of the insurance market. Total written premium is forecast to increase modestly in 2021 with the economic recovery and moderation of the impact of declining premium rates, but would still be well below the level from 2014 to 2019.

California had the highest rates in the country until 2018, when rate declines moved it from the top spot. It is now the fourth highest, behind New Jersey, New York, and Vermont.

Almost 150,000 COVID-19 claims have been filed in the California workers’ compensation system. The impact of the filing of so many COVID-19 claims in 2020 on claim frequency was in part offset by a reduction in the number of non-COVID-19 claims filed. Over one-half of the almost 150,000 COVID-19 claims filed in the California workers’ comp system as of June 1, 2021 were within the insured system.

Over time, the ratio of COVID-19 claims relative to statewide infections declined as the COVID- 19 workers’ compensation presumption created by Senate Bill (SB) No. 1159 was more restrictive than the Governor’s Executive Order issued in spring 2020.

The winter surge resulted in over 2 million infections statewide and the largest volume of COVID-19 workers’ compensation claims filed during the pandemic. COVID-19 claims as a percent of all indemnity claims peaked in December 2020 during the winter surge of infections. As vaccines rolled out in spring 2021, the proportion of COVID-19 claims has been very modest. A much higher than projected share of COVID-19 claims has been filed by younger workers. Younger individuals are more likely to have mild COVID-19 symptoms.

Currently projected costs of COVID-19 claims in the insured system for accident years 2020 and 2021 are over $1 billion in total.

Preliminary estimates suggest the CT claim share of indemnity claims for accident years 2020 and 2021 are significantly below the 2018 and 2019 levels. The vast majority of increases in CT claims since 2012 came from the Los Angeles Basin and San Diego areas.

Following the implementation of reforms related to lien filings of SB 863 (in 2013) and SB 1160 and Assembly Bill (AB) 1244 (in 2017), the number of lien filings dropped significantly. The number of liens filed in 2020 is over 70% below the pre- SB 1160 and AB 1244 level.

Combined ratios in California have historically been volatile. Recent industry ratios have been fairly stable, with seven consecutive years of combined ratios below 100% from 2012 to 2019. Combined ratios since 2016 have been increasing primarily due to lower premium levels driven by lower insurer rates and higher expense ratios. The combined ratio for 2020 is the first above 100% since 2012. Excluding the impact of COVID-19 claims, the 2020 combined ratio would be 96% ...
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/ 2021 News, Daily News
The Labor Commissioner’s Office cited three El Super grocery stores in Southern California for failing to provide or delaying supplemental paid sick leave (SPSL) or other benefits to 95 workers impacted by COVID-19. Some of the workers were forced to work while sick, others were told to apply for unemployment while quarantining or in isolation, while others waited months to be paid.

The citations were issued to Bodega Latina Corporation, a Delaware corporation doing business as El Super with 52 stores in California. The following locations in Los Angeles and San Bernardino counties were cited:

- - 1100 W Slauson Avenue, Los Angeles 90044
- - 10721 Atlantic Avenue, Lynwood 90262
- - 14590 Bear Valley Road # 28, Victorville 92395

The 2021 SPSL, which went into effect on March 29 and is retroactive to January 1, 2021, requires that California workers are provided up to two weeks of supplemental paid sick leave if they are affected by COVID-19. Among the key updates in the legislation, leave time also applies to attending a COVID-19 vaccine appointment and recovering from symptoms related to the vaccine.

The law is in effect until September 30, 2021. Small businesses employing 25 or fewer workers are exempt from the law but may offer supplemental paid sick leave and receive a federal tax credit, if eligible.

The Labor Commissioner’s Office opened an investigation on September 9, 2020 after receiving complaints from workers and a referral from the United Food and Commercial Workers International Union representing grocery store workers.

The investigators determined the employer did not consistently inform workers of their rights to SPSL if impacted by COVID-19. In some instances, sick workers were told to come to work until they received their test results even when they had COVID-19 symptoms. To cover isolation time, workers were in some cases told to apply for unemployment or disability. Moreover, many were denied time off to isolate, even though members of their household had tested positive. Some workers were never paid for their time off due to COVID-19.

The citations include $114,741.67 in wages, damages and interest for failing to provide leave under 2020 COVID-19 SPSL for food sector workers (Labor Code § 248), and $14,894.66 in wages, damages and interest for failing to provide leave under 2021 COVID-19 SPSL for employers with 26 or more employees (Labor Code § 248.2). In addition, $318,200 was assessed in penalties for nonpayment or late payment of SPSL (Labor Code § 246(n)).

Anyone who currently works or has worked at El Super who believes their employer refused to provide paid sick leave or COVID-19 supplemental paid sick leave as required by law is encouraged to call the Labor Commissioner’s Office confidential Paid Sick Leave Hotline at (855-526-7775) and leave their contact information. All workers can also call the Labor Commissioner’s Office to ask questions or get more information on how to file a wage claim for paid sick leave at 833-LCO-INFO (833-526-4636) ...
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/ 2021 News, Daily News
A Bronx man allegedly received $1.5 million in just ten months. A California real estate broker raked in more than $500,000 within half a year. A Nigerian government official is accused of pocketing over $350,000 in less than six weeks.

What they all had in common, according to federal prosecutors, was participation in what may turn out to be the biggest fraud wave in U.S. history: filing bogus claims for unemployment insurance benefits during the COVID-19 pandemic. (The broker has pleaded guilty, while the Bronx man and Nigerian official have pleaded not guilty.)

One person, according to the U.S. Department of Labor, used a single Social Security number to file unemployment insurance claims in 40 states. Twenty-nine states paid up, sending $222,532.

But the problem extends far beyond a plague of solo scammers. Bots filing bogus applications in bulk, teams of fraudsters in foreign countries making phony claims, online forums peddling how-to advice on identity theft - all inside the infrastructure of perhaps the largest fraud wave in history.

A ProPublica investigation reveals that much of the fraud has been organized - both in the U.S. and abroad. Fraudsters have used bots to file online claims in bulk. And others, located as far away as China and West Africa, have organized low-wage teams to file phony claims.

The fraud has been enabled by a burgeoning online infrastructure, whose existence has not previously been reported in the mainstream press. Much of it is geared toward exploiting aging or obsolete state unemployment systems whose weaknesses have drawn warnings for decades.

Communities have sprouted on messaging apps such as Telegram, where fraudsters trade tips on how to cash in. Hustlers advertise their techniques - or "sauces" (apparently short for "secret sauce") - for filing bogus claims, along with state-specific instructions on how to get around security checks, according to a ProPublica review of messages on more than 25 such chat forums.

Some of the forums have thousands of participants and regularly offer stolen identities for sale, alongside tech tips, screenshots that ostensibly prove the methods work and advice on which states are easiest to game and which are "lit" - that is, still paying out fake claims. Users have created two Telegram channels in which they trade tips for filing claims in Maryland, whose labor department recently said it detected some 508,000 potentially fraudulent jobless claims between the start of May and mid-June. Participants in those forums have been talking about turning their efforts to Pennsylvania, where officials recently said they have "noticed an uptick" in fraudulent claims.

"From my experience, when this is all said and done, we are going to be counting in the hundreds of billions of dollars, not the tens of billions," said Jon Coss, who heads a unit within Thomson Reuters that is helping states detect fake unemployment insurance claims.

Coss bases that assessment on the widespread fraudulent activity he’s seen. He said one U.S. state, which he declined to name, received fake claims - all purportedly from state residents - that originated from IP addresses in nearly 170 countries. They included countries historically linked to fraud, such as China, Nigeria and Russia, as well as more surprising ones, such as Cuba, Eritrea, Fiji and Monaco.

Overall, Coss said, between 40% and 50% of the claims his group has analyzed seem highly suspect. He added, "It’s mind-boggling the level of fraud that we’re seeing." ...
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/ 2021 News, Daily News
The Centers for Disease Control and Prevention (CDC) is set on Tuesday to recommend masks for vaccinated people indoors under certain circumstances.

"Federal officials met on Sunday night to review new evidence that may have prompted the reversal," the report continued. "The new guidance would mark a sharp turnabout from the agency’s position since May that vaccinated people do not need to wear masks in most indoor spaces.

New cases of COVID-19 are popping up in San Francisco and elsewhere in the Bay Area in what local media is calling "clearly a fourth wave of the pandemic", and everyone is clearly anxious and exhausted.

The latest surge in new cases arrived swiftly over the last two weeks, with the numbers in San Francisco still fairly low in the first days of July. The city was averaging 12.6 new cases per day in the month of June, and that rose to an average of 39 per day in the week after the July Fourth holiday. Now, SF's seven-day average, as of Sunday (with a couple of days of delay in the health department's reporting of numbers), was 147 new cases per day. 218 new infections were tallied in SF on Sunday alone, with 196 the previous day, which compares to days in mid-January when we were in the midst of the winter surge. July 20 also saw 215 new cases.

There has not been a day with over 200 new cases in San Francisco since the first week of February.

The number of hospitalized COVID patients has also risen sharply in SF in the last two weeks, rising from 24 on July 1 to 61 as of Saturday, according to state data.

UCSF's Dr. Bob Wachter tweeted a lengthy thread Sunday about the current surge and the precautions he plans to take. He notes that everything they are seeing at UCSF points to the ongoing efficacy of the vaccines, but now 77% of cases they are seeing through routine testing of many patients are among the vaccinated, the chances of encountering the virus in public are much higher in SF now than a month ago. Based on internal data about asymptomatic cases, Wachter says you now have a 1 in 50 chance of encountering an asymptomatic COVID infection while out in the city, compared to about 1 in 1000 back in June.

California Gov. Gavin Newsom announced Monday that his state will be the first in the nation to impose a vaccine mandate on state employees and healthcare workers, requiring they show proof of vaccination or submit to regular tests.

California will also be requiring health care settings to verify that workers are fully vaccinated or tested regularly. Unvaccinated workers will be subject to at least weekly COVID-19 testing and will be required to wear appropriate PPE. This requirement also applies to high-risk congregate settings like adult and senior residential facilities, homeless shelters and jails.

The new policy for state workers will take effect August 2 and testing will be phased in over the next few weeks. The new policy for health care workers and congregate facilities will take effect on August 9, and health care facilities will have until August 23 to come into full compliance ...
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/ 2021 News, Daily News
In 2006, Daniel Desimone began working for the County of Santa Barbara as a corrections officer.

In October 2007, he injured his lower back. The incident occurred at a private gym inside an apartment complex on a weekend when Desimone was not working and no other County employees were present. Desimone was attempting to lift 350 pounds without a fitness trainer. The injury resulted in permanent damage to his spine. He said that he was lifting weights in hopes of being promoted to Deputy Sheriff.

Desimone continued working as a custody deputy until March 2016. In 2017, he filed an application for disability retirement benefits. Two reporting physicians agreed he was permanently incapacitated, but they disagreed on whether his disability was service connected. Dr. Conwisar opined that it was "within reasonable medical probability" that Desimone’s work activities contributed to the injury. Dr. Ganjianpour opined that Desimone’s disc herniation resulted from the 2007 weight-lifting incident and that his work duties did not "significantly and measurably contribute" to his incapacity.

The Board referred the question of whether the disability was service connected to a referee. The referee found that Desimone’s weight-lifting injury was not work related. A trial court affirmed the Board, and the Court of Appeal affirmed in the unpublished case of Desimone v the Retirement Board of Santa Barbara County.

Desimone argued that pursuant to Ezzy v. Workers’ Comp. Appeals Bd. (1983) 146 Cal.App.3d 252 (Ezzy), that he was entitled to service-connected disability benefits because (1) he believed that his weight-lifting activity was expected by his employer and (2) his belief was objectively reasonable.

In Ezzy, the court of appeal held that a worker’s compensation claimant injured during a company-sponsored softball game was participating in an activity in the course of her employment.

Ezzy, is not controlling authority because it involved a worker’s compensation claim under the Labor Code, and not, as here, a claim for service connected disability retirement benefits under the CERL (Gov. Code, § 31720). The trial court was therefore not required to apply the Ezzy test to determine whether Desimone’s injury was service connected.

But, even under the Ezzy test, Desimone did not prove that his injury was sustained in the course of his employment. He argues that his subjective belief that the County expected him to participate in heavy weight lifting was objectively reasonable.

The specific activity must have a substantial nexus between an employer’s expectations or requirement, or else the scope of coverage becomes virtually limitless. Accordingly, general assertions that it would benefit the employer for, or even that the employer expects, an employee to stay in good physical condition are not sufficient ...
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/ 2021 News, Daily News
Interface Rehab, headquartered and operating in Orange County, has agreed to pay $2 million to resolve allegations that it violated the False Claims Act by causing the submission of claims to Medicare for rehabilitation therapy services that were not reasonable or necessary.

The settlement resolves allegations that, from January 1, 2006, through October 10, 2014, the Placentia-based Interface knowingly submitted or caused the submission of false claims for medically unreasonable and unnecessary "Ultra High" levels of rehabilitation therapy for Medicare Part A residents at 11 Skilled Nursing Facilities.

These facilities include Colonial Care Center, Covina Rehabilitation Center, Crenshaw Nursing Home, Green Acres Lodge, Imperial Care Center, Laurel Convalescent Hospital, Live Oak Rehabilitation Center, Longwood Manor Convalescent Hospital, Monterey Care Center, San Gabriel Convalescent Center, and Whittier Pacific Care Center.

In July 2020, the Department of Justice announced that Longwood Management Corporation and 27 affiliated skilled nursing facilities agreed to pay $16.7 million to the United States to resolve allegations that they violated the False Claims Act by submitting false claims to Medicare for rehabilitation therapy services that were not reasonable or necessary.

This newly announced settlement resolves Interface’s role in that alleged conduct.

During the relevant time period, Medicare reimbursed skilled nursing facilities at a daily rate that reflected the skilled therapy and nursing needs of qualifying patients. The greater the patient’s needs, the higher the level of Medicare reimbursement. The highest level of Medicare reimbursement for skilled nursing facilities was for "Ultra High" therapy patients, who required a minimum of 720 minutes of skilled therapy from two therapy disciplines (e.g., physical, occupational, or speech therapy), one of which had to be provided five days a week.

The United States contends that Interface pressured therapists to increase the amount of therapy provided to patients in order to meet pre-planned targets for Medicare revenue. These alleged targets could only be achieved by billing for a high percentage of patients at the "Ultra High" level without regard to patients’ individualized needs.

This civil settlement includes the resolution of claims brought under the qui tam or whistleblower provisions of the False Claims Act by Keith Pennetti, a former Director of Rehab at Interface. Under those provisions, a private party can file an action on behalf of the United States and receive a portion of any recovery. Mr. Pennetti, will receive $360,000 of the settlement proceeds. The qui tam case is captioned United States ex rel. Pennetti v. Interface Rehab, et al., No. CV-14-4133 (C.D. Cal.).

The claims resolved by the settlement are allegations only and there has been no determination of liability ...
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/ 2021 News, Daily News
Despite the pandemic-driven recession, workers' comp claim frequency among California's private self-insured employers rose in 2020, fueled by a big increase in the incidence of indemnity claims which more than offset a decline in medical-only claim frequency. This conclusion was based on a California Workers' Compensation Institute (CWCI) analysis of data compiled by the state Office of Self-Insurance Plans (OSIP).

OSIP's annual summary of private self-insured data, released July 8, provides the first snapshot of California private, self-insured claims experience for cases reported in 2020, including the total number of covered employees, medical-only and indemnity claim counts, and total paid and incurred losses on those claims through the end of the year.

The latest summary reflects the experience of private self-insured employers who covered 2.34 million California employees last year, and who reported a total of 86,503 claims in 2020 - slightly more than the 85,852 claims shown in the 2019 initial report.

It is notable that the number of covered employees in the private sector self-insured sector held steady while statewide unemployment soared during the pandemic, though CWCI notes that many large, private self-insured employers fit into the "essential worker" category (e.g., major retail, health care, utilities) where workers were less impacted than the insured work force by furloughs, layoffs, and remote work.

OSIP’s initial report on 2020 private self-insured experience shows 43,779 medical-only claims (down 15.1 percent from 51,545 claims in 2019) and 42,724 indemnity claims (up 24.5 percent from 34,307 in 2019).

The 2020 claim count translates to an overall frequency rate of 3.70 claims per 100 private self-insured employees, nearly matching the overall frequency rates from 2018 and 2019, though the breakdown by claim type underscores the major shift in the claim distribution away from less costly medical-only claims and toward more expensive indemnity claims. While medical-only claim frequency per 100 employees fell from 2.21 in 2019 to a 15-year low of 1.87 in 2020, the indemnity claim rate rose from 1.47 to a 15-year high of 1.83.

That shift was also evident in the first report paid and incurred loss data.

Paid losses on the 2020 private self-insured claims through the fourth quarter totaled $268.4 million, $15.6 million more than the comparable figure for 2019, as total paid indemnity (primarily temporary disability payments) increased by $25.1 million (22.5 percent) while total paid medical fell by $9.5 million (6.7 percent).

Similarly, total incurred losses (paid benefits plus reserves for future payments) increased to $742.4 million, up $48.0 million from the initial incurred amount reported for 2019 claims, as total incurred indemnity at the first report climbed by $40.2 million (6.9 percent) and total incurred medical increased by $7.8 million (1.9 percent). Average paid and incurred losses in the initial report both rose sharply in 2020, climbing to $3,103 and $8,583 respectively, with all of the year-over-year increase in the average paid amount and most of the increase in average incurred due to increased indemnity ...
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/ 2021 News, Daily News
A new study from the Workers Compensation Research Institute (WCRI) investigates patterns of medical care access and utilization that are specific to workers’ compensation during the first quarters of 2020 to understand how the timing and delivery of medical treatment were impacted by the pandemic.

"In our previous work, we examined the effect of the spread of COVID-19 along with the accompanying massive decline in economic activity on workers’ compensation claim composition. In this report, we continue examining the impact of the pandemic on workers’ compensation, shifting our attention to the timing and patterns of medical care delivery," said John Ruser, president and CEO of WCRI.

The main focus of the study, The Early Impact of COVID-19 on Medical Treatment for Workers’ Compensation Non-COVID-19 Claims, is on non-COVID-19 lost-time claims with injury dates in the first two quarters of 2019 (pre-pandemic) or 2020 (pandemic period). The following is a sample of the study’s major findings:

- - Claims with injury dates in the first two quarters of 2020 did not experience any noticeable delay in medical treatment as compared with the waiting time for claims with injuries in the first two quarters of 2019. In fact, several service types showed some slight improvement in waiting time from injury to medical treatment - in particular, for claims with injuries in the second quarter of 2020, emergency room services, physical medicine, major surgery, and neurological and neuromuscular testing were provided sooner.
- - In states hit hardest by the pandemic during the study period (Connecticut, Massachusetts, and New Jersey), patients sustaining work-related injuries during the early months of the pandemic did not have longer waiting times before getting medical treatment across eight service groups. There was shorter duration for select service types. In particular, major surgery on average happened sooner - 2020Q2 claims had about a 5-day shorter waiting time than 2019Q2 claims, with the average number of days decreasing from 16.3 days to 11.7 days from injury to major surgery.
- - Fractures and lacerations/contusions occurring in the first half of 2020 and 2019 did not have statistically different times before first medical services for most service types, except for a slightly shorter time before emergency services in 2020. In particular, for lacerations and contusions occurring in the second quarter of 2020, time to emergency services decreased from 0.6 days to 0.4 days on average.
- - For soft-tissue claims with injury dates in the first two quarters of 2020, no substantial delay in treatment for most services was observed, with some exceptions. The average number of days to major surgery increased for other non-spinal sprains and strains occurring in the first quarter of 2020 - an increase of about 3 days, from 57 days in 2019 to 60 days in 2020.
- - For lost-time claims with injury dates in the first two quarters of 2020, the shares of claims across eight types of services remained largely the same as the two first quarters of 2019. However, the study reports a 4-percentage point drop in the share of claims with emergency room services, which is consistent with the expectation that people would want to avoid going to the emergency room because of fear of virus contraction.

The study tracks changes in key measures describing medical service utilization patterns for workers injured in 27 states: Arizona, Arkansas, California, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Nevada, New Jersey, New Mexico, North Carolina, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, and Wisconsin. These study states represent 68 percent of the workers’ compensation benefits paid in the United States ...
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/ 2021 News, Daily News
With a $26 billion nationwide settlement in sight over claims that the three largest U.S. drug distributors and Johnson & Johnson helped fuel a nationwide opioid epidemic, state and local governments will soon turn their attention to pharmacies and a handful of drugmakers.

Reuters reports that U.S. state attorneys general are expected to unveil a settlement proposal this week with distributors McKesson Corp (MCK.N), Cardinal Health Inc (CAH.N) and AmerisourceBergen Corp (ABC.N) contributing a combined $21 billion, while Johnson & Johnson would pay $5 billion.

Noticeably absent from the potential $26 billion deal are pharmacy operators including Walgreens Boots Alliance, Walmart Inc , Rite Aid Corp and CVS Health Corp, which have been accused of ignoring red flags that opioid drugs were being diverted into illegal channels.

The deal also would not include drugmakers AbbVie Inc, Teva Pharmaceutical Industries Ltd or Endo International Plc, which have been accused of misleadingly marketing their pain medicines as safe.

The pharmacies and drugmakers have denied the claims, saying rising opioid prescriptions were driven by doctors, that they followed federal law and that the known risks were included in U.S.-approved labels for the drugs.

News of the proposed nationwide settlement came three weeks into a jury trial in New York, and legal experts said upcoming court proceedings will pressure the remaining defendants to reach a deal.

The drugmakers are currently defending themselves at the New York trial and a trial in Orange County, California, and are expected to face another trial in San Francisco along with the pharmacies later this year. The pharmacies, which settled the New York case shortly before trial, also face an October trial in Ohio.

After start of the Orange County case earlier this year, Allergan defense counsel Donna Welch, in her opening statements in front of Judge Wilson, initially threw co-defendants in the opioid litigation "The Pharmacy Chains" under the bus, claiming they were the responsible party in unleashing hundreds of millions of prescription opioids, the "firewall" in mitigating the now defense asserted, non-existent opioid crisis. This illustration of the "blame others" defense strategy has fewer targets as supply chain participants settle cases, removing opportunities for remaining defendants to shift blame.

Richard Ausness, a law professor at the University of Kentucky, said a settlement this week reduces the groups of defendants in the litigation and makes it harder for the remaining companies to blame others.

Endo is scheduled to go to trial next week to assess damages over a lawsuit brought on behalf of Tennessee counties and an infant allegedly born addicted to opioids, in which a judge has already ruled the company liable. District Attorney General Barry Staubus of Tennessee's Sullivan County told WHLJ television that the company offered to settle, but the deal would be limited to that case.

Peter Mougey, a lawyer representing the local governments pursuing opioid litigation around the country, said at a news conference to discuss proposed settlements that he was "frustrated" pharmacies were not part of the nationwide deal.

"They've had ample time to assess where they are with their liability, and we all have the common goal of trying to end this opioid epidemic," he said.

The pharmacies did not immediately respond to requests for comment ...
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/ 2021 News, Daily News
The California Insurance Commissioner adopted and issued lower rates for workers’ compensation insurance, as businesses continue to recover from the COVID-19 pandemic and rehire workers - reducing the benchmark rate by $.05 to $1.41 per $100 of payroll for workers’ compensation insurance, effective September 1, 2021.

The recommended rate reduction is based on insurance companies’ cost data. The pure premium rate is only advisory, as the State Legislature has not given the Commissioner rate setting authority over workers’ compensation rates.

The newly approved average advisory pure premium rate level of $1.41 approved by the Commissioner is about 24.2 percent lower than the industry-filed average pure premium rate of $1.86 as of January 1, 2021.

This marks the eleventh consecutive reduction to the average advisory pure premium rate benchmark since January 2015.

Last year, the Commissioner resisted calls to add a COVID-19 surcharge to employers’ rates, citing uncertainty over the impact of the pandemic on future workers’ compensation claims and costs. The surcharge would have especially affected employers of farm workers, health care workers, grocery workers, and other front-line workers.

With workers’ compensation claims related to COVID-19 now falling amid the vaccine rollout and public health actions, this year’s pure premium rates again do not include a pandemic factor.

The decision results in an average advisory pure premium rate that is below the $1.50 average rate recommended by the Workers' Compensation Insurance Rating Bureau of California (WCIRB) in its filing with the Department of Insurance.

The advisory rate was issued after a public hearing that he convened on June 7, 2021 and careful review of the testimony and evidence submitted by stakeholders.
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/ 2021 News, Daily News
One of the largest hospital systems in the nation and two of its doctors will pay $37.5 million to resolve violations of the False Claims Act and the California False Claims Act. The settlement - which resolved two cases - is a joint resolution with the U.S. Department of Justice and the California Department of Justice.

The United States and California entered into a settlement agreement with the Prime Healthcare Services system; Prime’s founder and Chief Executive Officer, Dr. Prem Reddy; and interventional cardiologist Dr. Siva Arunasalam to resolve alleged violations of the False Claims Act and the California False Claims Act based on kickbacks paid by Prime to Arunasalam for patient referrals.

Prime includes the Ontario-based Prime Healthcare Services Inc., Prime Healthcare Foundation Inc., Prime Healthcare Management Inc., High Desert Heart Vascular Institute (HDHVI), and Desert Valley Hospital Inc.

Under the settlement agreement, Arunasalam will pay $2 million. Reddy has already paid $1,775,000, and Prime has paid $33,725,000. The United States will receive $35,463,057 of the settlement proceeds, and California will receive $2,036,943.

In 2018, Prime and Reddy paid $65 million to settle unrelated allegations of false claims and overbilling.

The settlement resolves allegations that:

- - Prime paid kickbacks when it overpaid to purchase Arunasalam’s physician practice and surgery center because the company wanted Arunasalam to refer patients to its Desert Valley Hospital in Victorville. The purchase price, which was substantially negotiated by Reddy, exceeded fair market value and was not commercially reasonable. Prime also knowingly overcompensated the doctor when HDHVI entered into an employment agreement with him that was based on the volume and value of his patient referrals to Desert Valley Hospital;
- - For approximately two years between 2015 and 2017, HDHVI and Arunasalam used Arunasalam’s billing number to bill Medicare and Medi-Cal for services that were provided by Dr. George Ponce, even though they knew Ponce’s Medicare and Medi-Cal billing privileges had been revoked, and that billing Ponce’s services under Arunasalam’s billing number was improper; and
- - Certain Prime hospitals billed Medi-Cal, the Federal Employees Health Benefits Program, and the U.S. Department of Labor’s Office of Workers’ Compensation Programs for false claims based on inflated invoices for implantable medical hardware. Arunasalam was not implicated in this conduct.

In connection with the settlement, Prime and Reddy entered into a five-year Corporate Integrity Agreement (CIA) with the U.S. Department of Health and Human Services Office of Inspector General (HHS-OIG). The CIA requires, among other things, that Prime maintain a compliance program and hire an Independent Review Organization to review arrangements entered into by or on behalf of its subsidiaries and affiliates.

The civil settlement includes the resolution of claims brought under the qui tam, or whistleblower, provisions of the False Claims Act in two lawsuits filed in federal court in Los Angeles. One suit was filed by Martin Mansukhani, a former Prime executive. The second suit was filed by Marsha Arnold and Joseph Hill, who were formerly employed in the billing office at Shasta Regional Medical Center, a Prime hospital in Redding, California.

Under the qui tam provisions of the False Claims Act, a private party can file an action on behalf of the United States and receive a portion of any recovery. Although the United States did not intervene in these cases, it continued to investigate the whistleblowers’ allegations and helped to negotiate the settlement announced today. Mr. Mansukhani will receive $9,929,656 as his share of the federal government’s recovery ...
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/ 2021 News, Daily News
The Division of Workers’ Compensation announced that as of July 26, 2021, the public counters at all district offices will open for in-person filing, questions, and assistance.

The Return-to-Work Supplement kiosks will also reopen. Information and Assistance officers will be onsite in most offices to answer questions and provide other assistance.

Parties are strongly encouraged to continue to submit documents by the DWC’s e-filing or JET filing system to reduce processing times due to limited DWC in-office staffing.

The Eureka office is now completely virtual as announced in the Newsline dated April 14, 2021, and all documents for cases venued in Eureka that cannot be e-filed or JET filed should be mailed to the Santa Rosa office.

District offices will not hold in-person hearings or accept "walk-through" documents at this time.

Until further notice, DWC will continue to hear all mandatory settlement conferences, priority conferences, status conferences, case-in-chief trials, lien conferences, lien trials, Special Adjudication Unit (SAU) trials and expedited hearings telephonically via the individually assigned judges’ conference lines as announced in Newslines issued on April 3, April 28, May 28, August 12, and September 9, 2020.

Parties may continue to contact the DWC’s call center to obtain assistance via telephone at (909) 383-4522.
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/ 2021 News, Daily News
Loews Hollywood Hotel, LLC employed Jessica Ferra as a bartender. Loews paid Ferra hourly wages as well as quarterly nondiscretionary incentive payments.

For the days when she had to work during lunch or a rest break, her employer paid Ferra only the hourly wage and did not include a percentage of the quarterly incentive.

Ferra filed a class action suit against Loews. Ferra alleged that Loews, by omitting nondiscretionary incentive payments from its calculation of premium pay, failed to pay her for noncompliant meal or rest breaks in accordance with her "regular rate of compensation" as required by Labor Code section 226.7(c).

The trial court granted summary adjudication for Loews on the ground that calculating premium pay according to an employee’s base hourly rate is proper under Labor Code section 226.7(c). The court agreed with Loews that "regular rate of compensation" in section 226.7(c) is "not interchangeable" with the term "regular rate of pay" under section 510(a), which governs overtime pay.

The Court of Appeal affirmed, holding that "regular rate of compensation" in section 226.7(c) and "regular rate of pay" in section 510(a) are "not synonymous, and the premium for missed meal and rest periods is the employee’s base hourly wage."

The California Supreme Court reversed in the case of Ferra v Loews Hollywood Hotel, LLC.

The question is what the Legislature meant when it used the phrase "regular rate of compensation" in section 226.7(c). Neither the Labor Code nor Wage Order No. 5-2001 defines the term, and the words by themselves may reasonably be construed to mean either hourly wages, as Loews contends, or hourly wages plus nondiscretionary payments, as Ferra contends.

After review of the legislative history and case law, The Supreme Court held that the term "regular rate of compensation" in section 226.7(c) has the same meaning as "regular rate of pay" in section 510(a) and encompasses not only hourly wages but all nondiscretionary payments for work performed by the employee.

This interpretation of section 226.7(c) comports with the remedial purpose of the Labor Code and wage orders and with our general guidance that the "state’s labor laws are to be liberally construed in favor of worker protection."

It also rejected Loews’s request that the decision be prospectively applied. The decision shall have retroactive effect ...
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/ 2021 News, Daily News
On July 14, 2021, longtime occupational safety and health expert Fred A. Manuele received the inaugural Prevention through Design (PtD) Award for his outstanding foresight, wisdom, tireless effort and major accomplishments in preventing harm to workers by helping organizations avoid and prevent hazards.

The new PtD award recognizes individuals, teams, businesses or other organizations that have improved worker safety and health by designing-out hazards or contributing to the body of knowledge that enables PtD solutions. The annual award is presented by the National Institute for Occupational Safety and Health (NIOSH), the American Society of Safety Professionals (ASSP) and the National Safety Council (NSC).

PtD aims to prevent or reduce occupational injuries, illnesses and fatalities through the inclusion of prevention considerations in all designs that impact workers. This includes the design, redesign and retrofit of new and existing work premises, structures, tools, facilities, equipment, machinery, products, substances, work processes and the organization of work. In addition to reducing the risk of serious injury and illness, significant cost savings are often associated with hazard elimination and the application of engineering controls to minimize risks.

NIOSH Director John Howard, M.D., praised Manuele’s contributions to the field: "The work spearheaded by Fred Manuele was groundbreaking and inspired the NIOSH Prevention through Design effort. He has worked tirelessly to protect workers though design."

Manuele is a pioneer in the PtD field. ASSP republished many of his influential professional papers in a book titled, Fred Manuele on Safety Management: A Collection from Professional Safety. Manuele also published numerous occupational safety and health textbooks that always included the need for designing-out hazards and the methods to do so.

"I can’t think of an individual who is more worthy than Fred to receive this first award," said Deborah R. Roy, ASSP’s immediate past president. "I’ve known him for many years and served as a reviewer of the Prevention through Design standard that Fred guided. No one has been more dedicated or accomplished in this area of workplace safety and health."

In 1995, Manuele led a focused, 10-year NSC initiative, the Institute for Safety Through Design, which culminated in a textbook he co-authored titled, Safety Through Design. Over the years he has published other textbooks and many scientific papers on safety engineering.

"Fred’s leadership at NSC and beyond has greatly advanced the field of design safety," said Lorraine Martin, NSC president and CEO. "We thank him for his myriad contributions to worker safety and congratulate him on this well-deserved award."

In 2007, NIOSH and numerous partners launched a National Prevention through Design Initiative. Manuele volunteered to lead the effort to develop and approve a broad, generic voluntary consensus standard on PtD aligned with international design activities and practice. Under the standards-development arm of ASSP, the ASSP/ANSI Z590.3 Prevention through Design standard was published in 2011, reaffirmed in 2016, and is now under revision to expand its usefulness and impact worldwide.

Manuele has received many honors and awards for his accomplishments. He is an ASSP Fellow and a recipient of the NSC’s Distinguished Service to Safety Award. He is a former board member of ASSP, NSC and the Board of Certified Safety Professionals, where he also served as president and received a Lifetime Achievement Award in 2013. In 2015, the University of Central Missouri presented him with its Distinguished Service Award. In 2016, Manuele received the ASSP President's Award for his dedication to advancing the practice of safety ...
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/ 2021 News, Daily News
In 2007, Purdue Pharma paid out one of the largest fines ever levied against a pharmaceutical firm for mislabeling of its product OxyContin, and three executives were found guilty of criminal charges. The company is seen by many as the origination of what became the opioid crisis.

After becoming the target of multiple civil actions across the states, Purdue Pharma, is seeking Chapter 11 bankruptcy protection in the U.S. Bankruptcy Court in the Southern District of New York.

Nine states have yet to agree to the Purdue Pharma bankruptcy plan. They include Connecticut, where the company is headquartered, as well as California, Delaware, Maryland, New Hampshire, Oregon, Rhode Island, Vermont and Washington. The District of Columbia also hasn't agreed to the deal. They seek further liability from Purdue’s owners. Specifically, the states say individual members of the Sackler family directed marketing that misled the doctors who wrote OxyContin prescriptions and the patients given the addictive painkiller recklessly.

Courthouse News reports that Connecticut Attorney General William Tong had harsh words Friday when attorneys representing the family who owns the bankrupt OxyContin maker Purdue Pharma, threatened a demand for sanctions against four states and the District of Columbia.

Tong said the Sackler’s attorneys sent an email the previous day with a motion for sanctions, complete with about 165 pages of exhibits, against Connecticut, California, Maryland, Rhode Island and the District of Columbia.

In the draft motion, the Sackler family’s attorneys said they sought the sanctions, including fees and reprimands, because the states made allegations that lacked evidence.

One example quoted in the filing is that Connecticut ignored the Sacklers’ demand that it produce documents to back up its allegation that the family engaged in "Knowing Participation in Deception."

"There is no evidence that Beverly, David, Jonathan or Richard Sackler had any involvement in the drafting or approval of the content of marketing material or what sales representatives said, were authorized to say or prohibited from saying during the Relevant Period," the draft motion states. Attorneys for the Sackler family wrote that they were serving the draft 21 days before they intended to file it to give the states an opportunity to back up their assertions.

Tong said the Sackler family attorneys withdrew the motion Friday morning "after they got tremendous blowback from a lot of different parties" for the move. In a sharp series of comments, Tong described the withdrawn proposal as a threat against his state, "an organized crime family intimidation tactic" and "colossally idiotic."

Tong said he made the allegations at issue in a complaint filed more than two years ago, and the last-minute filing was an attempt to pressure the state to accept a settlement proposal. "The Sacklers are trying to use the company’s bankruptcy to shield themselves from liability and from paying what they ought to pay for their role in causing and fueling the opioid crisis," Tong said ...
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A 24-year-old San Jacinto man who faked an injury to collect tens of thousands of dollars in workers’ compensation insurance funds pleaded guilty Thursday to a felony charge and was immediately sentenced to 24 months probation.

According to the report by MyNewsLA.com, Angel Luis Maces admitted one count of insurance fraud under a plea agreement with the Riverside County District Attorney’s Office, and in exchange for his admission, prosecutors dropped a second related charge.

Superior Court Judge David Gunn certified the terms of the plea deal and imposed the sentence stipulated by the prosecution and defense. In addition to probation, Gunn ordered the defendant to serve 270 days in a sheriff’s work release program and pay victim restitution totaling $76,868.

Maces was arrested in February following a months long investigation by the California Department of Insurance.

According to the DOI, in September 2018, the defendant was employed by a Temecula landscaping company that sent him to Duarte to perform turf upkeep, but while on the job, he told his supervisors that he’d slipped and injured his knee.

Maces filed a workers’ comp claim through his employer’s insurance company after several examinations, at which point he began collecting workers' compensation benefits.

The insurer suspected in April 2020 that Maces was not as injured as he had told his physician and employer, and the case was referred to the California Department of Insurance for further investigation.

"Surveillance during the investigation showed Maces conducting activities that contradicted the physical limitations he described," the agency stated. "On multiple occasions, Maces was seen not using a cane or crutches, even though he claimed he had to use them 100% of the time because of the injury."

Investigators claimed that $42,888 in unwarranted benefits were paid ...
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/ 2021 News, Daily News