The Summer 2021 edition of Healthesystems.com RxInformer covers diverse topics such as the future of telemedicine and practical tips to make it effective in workers’ compensation.
Telemedicine use has increased in response to the COVID-19 pandemic and is gaining acceptance in workers’ comp. While some obstacles remain, telemedicine has the potential to expand care delivery options and speed recovery times.
According to a recent study by McKinsey, consumer interest in telemedicine rose from 11% to 76% during the pandemic, 57% of healthcare providers said they viewed telemedicine more favorably, and 64% of providers are comfortable using telemedicine. In the course of just a few months, telemedicine physician visits rose 50 - 175x, depending on geography and type of practice.
In workers’ comp, telemedicine also gained wider acceptance during the pandemic as many states relaxed restrictions regarding its use for injured worker patients. The types of changes made by the states (and CMS, which guides rules for some states) vary and include: allowing additional services to be delivered via tele technologies; relaxing provider licensing requirements; amending reimbursement rules (often reimbursing at the higher office visit rates to encourage telemedicine use); and allowing different modes of technology, such as audio-only calls.
Many of the legal and regulatory changes regarding telemedicine are temporary, and it remains to be seen which will become permanent and where. Workers’ comp stakeholders had hopes of cost reduction through telemedicine, both indirectly by speeding recovery times with better access to care, and directly through lower provider fees for virtual visits. To encourage the use of telemedicine during the pandemic, many states have allowed in-office reimbursement rates for virtual visits, which eliminates the direct savings incentive and makes the reimbursement question an important one going forward.
Exactly which medical services can be effectively delivered through telemedicine is also yet to be determined. Currently, fewer than 100 medical services are approved for telemedicine by CMS, which is a small fraction of the 8,000+ services covered by Medicare and Medicaid. The number of medical services we commonly see in workers’ comp are much fewer and, while some services will always require that the provider and patient be physically together, a significant portion of injured worker care could potentially be delivered virtually.
Telemedicine is not appropriate for all medical services. Serious injuries and illness demand in-person attention, and most diagnostic tests and all surgeries require physical contact with the patient. In addition to these obvious exceptions, some patients may feel that they are not getting proper care with a telemedicine visit and prefer to see their healthcare provider in person. There are also important privacy concerns and fear of fraud in both general healthcare and workers’ comp ...
Telemedicine use has increased in response to the COVID-19 pandemic and is gaining acceptance in workers’ comp. While some obstacles remain, telemedicine has the potential to expand care delivery options and speed recovery times.
According to a recent study by McKinsey, consumer interest in telemedicine rose from 11% to 76% during the pandemic, 57% of healthcare providers said they viewed telemedicine more favorably, and 64% of providers are comfortable using telemedicine. In the course of just a few months, telemedicine physician visits rose 50 - 175x, depending on geography and type of practice.
In workers’ comp, telemedicine also gained wider acceptance during the pandemic as many states relaxed restrictions regarding its use for injured worker patients. The types of changes made by the states (and CMS, which guides rules for some states) vary and include: allowing additional services to be delivered via tele technologies; relaxing provider licensing requirements; amending reimbursement rules (often reimbursing at the higher office visit rates to encourage telemedicine use); and allowing different modes of technology, such as audio-only calls.
Many of the legal and regulatory changes regarding telemedicine are temporary, and it remains to be seen which will become permanent and where. Workers’ comp stakeholders had hopes of cost reduction through telemedicine, both indirectly by speeding recovery times with better access to care, and directly through lower provider fees for virtual visits. To encourage the use of telemedicine during the pandemic, many states have allowed in-office reimbursement rates for virtual visits, which eliminates the direct savings incentive and makes the reimbursement question an important one going forward.
Exactly which medical services can be effectively delivered through telemedicine is also yet to be determined. Currently, fewer than 100 medical services are approved for telemedicine by CMS, which is a small fraction of the 8,000+ services covered by Medicare and Medicaid. The number of medical services we commonly see in workers’ comp are much fewer and, while some services will always require that the provider and patient be physically together, a significant portion of injured worker care could potentially be delivered virtually.
Telemedicine is not appropriate for all medical services. Serious injuries and illness demand in-person attention, and most diagnostic tests and all surgeries require physical contact with the patient. In addition to these obvious exceptions, some patients may feel that they are not getting proper care with a telemedicine visit and prefer to see their healthcare provider in person. There are also important privacy concerns and fear of fraud in both general healthcare and workers’ comp ...
A former Orange County chiropractor was found guilty by a jury of federal criminal charges accusing her of defrauding health insurers by submitting $2.2 million in charges for chiropractic services never provided, bogus medical diagnoses, office visits that never occurred, and medical devices falsely prescribed.
56 year old Susan H. Poon, who lives in Dana Point, was found guilty of five counts of health care fraud, three counts of making false statements relating to health care matters, and one count of aggravated identity theft in the first criminal jury trial to occur in the Central District of California since March 2020.
According to the evidence presented at her five-day trial, from January 2015 to April 2018, Poon, whose office was located in Rancho Santa Margarita, schemed to defraud Anthem and Aetna by submitting false reimbursement claims for services that never occurred, false diagnoses and chiropractic services that were never performed.
Poon also submitted fraudulent prescriptions containing fabricated medical diagnoses of individuals that she had never met, including children, causing a medical device manufacturer to submit false claims for reimbursement to Blue Shield of California.
The patient-victims that Poon claimed to have met with and treated were dependents - such as the spouses and children - of Costco Wholesale Corp. and United Parcel Service Inc. employees, dependents whose personal identification information Poon unlawfully took and used in her reimbursement requests and prescriptions. Poon obtained the personal information of employee-dependents by attending health fairs at various UPS warehouses and Costco locations, and soliciting such information from employees.
In total, Poon billed approximately $2.2 million through her scheme.
Poon’s chiropractic license was revoked in July 2019, according to the California Department of Consumer Affairs.
An August 30 sentencing hearing has been scheduled, and Poon will face a statutory maximum sentence of 67 years in federal prison.
The following agencies investigated this matter: Amtrak - Office of the Inspector General, California Department of Insurance, U.S. Department of Labor - Employee Benefits Security Administration, U.S. Department of Labor - Office of the Inspector General, the FBI, and Office of Personnel Management - Office of the Inspector General.
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56 year old Susan H. Poon, who lives in Dana Point, was found guilty of five counts of health care fraud, three counts of making false statements relating to health care matters, and one count of aggravated identity theft in the first criminal jury trial to occur in the Central District of California since March 2020.
According to the evidence presented at her five-day trial, from January 2015 to April 2018, Poon, whose office was located in Rancho Santa Margarita, schemed to defraud Anthem and Aetna by submitting false reimbursement claims for services that never occurred, false diagnoses and chiropractic services that were never performed.
Poon also submitted fraudulent prescriptions containing fabricated medical diagnoses of individuals that she had never met, including children, causing a medical device manufacturer to submit false claims for reimbursement to Blue Shield of California.
The patient-victims that Poon claimed to have met with and treated were dependents - such as the spouses and children - of Costco Wholesale Corp. and United Parcel Service Inc. employees, dependents whose personal identification information Poon unlawfully took and used in her reimbursement requests and prescriptions. Poon obtained the personal information of employee-dependents by attending health fairs at various UPS warehouses and Costco locations, and soliciting such information from employees.
In total, Poon billed approximately $2.2 million through her scheme.
Poon’s chiropractic license was revoked in July 2019, according to the California Department of Consumer Affairs.
An August 30 sentencing hearing has been scheduled, and Poon will face a statutory maximum sentence of 67 years in federal prison.
The following agencies investigated this matter: Amtrak - Office of the Inspector General, California Department of Insurance, U.S. Department of Labor - Employee Benefits Security Administration, U.S. Department of Labor - Office of the Inspector General, the FBI, and Office of Personnel Management - Office of the Inspector General.
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Merck announced it has entered into a procurement agreement with the United States government for molnupiravir (MK-4482). Molnupiravir is currently being evaluated in a Phase 3 clinical trial, the MOVe-OUT study, for the treatment of non-hospitalized patients with laboratory-confirmed COVID-19 and at least one risk factor associated with poor disease outcomes. Merck is developing molnupiravir in collaboration with Ridgeback Biotherapeutics.
"Merck is pleased to collaborate with the U.S. government on this new agreement that will provide Americans with COVID-19 access to molnupiravir - an investigational oral therapy being studied for outpatient use early in the course of disease - if it is authorized or approved,' said Rob Davis, president, Merck. 'In addition to this agreement with the U.S. government, we are actively engaged in numerous efforts to make molnupiravir available globally to fulfill Merck’s commitment to widespread access.'
Through the agreement, if molnupiravir receives Emergency Use Authorization (EUA) or approval by the U.S. Food and Drug Administration (FDA), Merck will receive approximately $1.2 billion to supply approximately 1.7 million courses of molnupiravir to the United States government. Merck has been investing at risk to support development and scale-up production of molnupiravir and expects to have more than 10 million courses of therapy available by the end of 2021.
Merck also plans to submit applications for emergency use or approval to regulatory bodies outside of the U.S. and is currently in discussions with other countries interested in advance purchase agreements for molnupiravir. Merck is committed to providing timely access to molnupiravir globally and intends to implement a tiered pricing approach based on World Bank data that recognizes countries’ relative ability to finance their public health response to the pandemic.
As part of its access strategy, Merck has also entered into non-exclusive voluntary licensing agreements for molnupiravir with established generic manufacturers to accelerate availability of molnupiravir in 104 low- and middle-income countries following approvals or emergency authorization by local regulatory agencies.
In addition to developing molnupiravir, Merck is contributing to the pandemic response by collaborating with Johnson & Johnson to support the manufacture of its COVID-19 vaccine.
This procurement of molnupiravir will be supported in whole or in part with federal funds from the Department of Health and Human Services; Office of the Assistant Secretary for Preparedness and Response; Biomedical Advanced Research and Development Authority, in collaboration with the DOD Joint Program Executive Office for Chemical, Biological, Radiological and Nuclear Defense ...
"Merck is pleased to collaborate with the U.S. government on this new agreement that will provide Americans with COVID-19 access to molnupiravir - an investigational oral therapy being studied for outpatient use early in the course of disease - if it is authorized or approved,' said Rob Davis, president, Merck. 'In addition to this agreement with the U.S. government, we are actively engaged in numerous efforts to make molnupiravir available globally to fulfill Merck’s commitment to widespread access.'
Through the agreement, if molnupiravir receives Emergency Use Authorization (EUA) or approval by the U.S. Food and Drug Administration (FDA), Merck will receive approximately $1.2 billion to supply approximately 1.7 million courses of molnupiravir to the United States government. Merck has been investing at risk to support development and scale-up production of molnupiravir and expects to have more than 10 million courses of therapy available by the end of 2021.
Merck also plans to submit applications for emergency use or approval to regulatory bodies outside of the U.S. and is currently in discussions with other countries interested in advance purchase agreements for molnupiravir. Merck is committed to providing timely access to molnupiravir globally and intends to implement a tiered pricing approach based on World Bank data that recognizes countries’ relative ability to finance their public health response to the pandemic.
As part of its access strategy, Merck has also entered into non-exclusive voluntary licensing agreements for molnupiravir with established generic manufacturers to accelerate availability of molnupiravir in 104 low- and middle-income countries following approvals or emergency authorization by local regulatory agencies.
In addition to developing molnupiravir, Merck is contributing to the pandemic response by collaborating with Johnson & Johnson to support the manufacture of its COVID-19 vaccine.
This procurement of molnupiravir will be supported in whole or in part with federal funds from the Department of Health and Human Services; Office of the Assistant Secretary for Preparedness and Response; Biomedical Advanced Research and Development Authority, in collaboration with the DOD Joint Program Executive Office for Chemical, Biological, Radiological and Nuclear Defense ...
Maureen Ford suffered injuries while employed by Communication Action Board of Santa Cruz.
On April 22, 2014, the parties filed joint Stipulations with Request for Award, for injury to "upper extremity" and "hand" on 8/19/11 (ADJ8177678) and for cumulative injury ending 9/26/11, to "upper extremity," "hand," "neck" and "back" (ADJ8177385), while employed as a landscape worker by Community Action Board, insured by State Compensation Insurance Fund.
Applicant reported psychological symptoms to her doctors prior to entering into the 2014 Stipulations with Request for Award. Neither physician expressed an opinion on causation of the psychological symptoms or whether they caused disability.
On 9/10/15, applicant filed a Petition to Reopen in both cases, alleging a change of condition, increase in PD, need for further medical treatment and different vocational factors. On 10/2/17, an Amended Application for Adjudication was filed in ADJ8177385, adding "psyche" as an additional injured body part. The cases went to trial on the issues of injury to the psyche, good cause to reopen per applicant’s 9/13/15 Petition.
A 2018 report concluded, for the first time, that applicant met the requirements of Labor Code Sec. 3208.3, because she had a mental disorder per the DSM that was predominantly caused by the industrial injury in August of 2011.
The WCJ found psychiatric injury and good cause to reopen. The employer's Petition for Reconsideration was denied in the panel decision of Maureen Ford v Communication Action Board of Santa Cruz, ADJ8177678-ADJ8177385.
The sole issue raised by defendant on reconsideration is that the WCJ erred in finding good cause to reopen the Award in Case No. ADJ8177385 for new and further psychiatric injury and disability where there was evidence of psychiatric injury at the time of the original Findings and Award. Defendant argues that, because the medical record documents that applicant expressed psychiatric symptoms prior to the April 22, 2014 Findings and Award, the psychiatric injury and disability found by the WCJ now is not "new and further."
In this case, there are only brief mentions of psychiatric symptoms in the medical record. There is no evidence of any psychiatric condition causing either disability or a need for treatment nor is there evidence of a formal diagnosis. Therefore, there is no substantial medical evidence establishing industrial causation for the psychiatric injury pursuant to section 3208.3(a).
The Board concluded that a psychiatric injury does not fall within the ambit of the workers’ compensation system until it causes either disability or a need for medical treatment and it is diagnosed using the terminology and criteria of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.
In this case, the decision was said to be consistent the the outcomes in a number of Appeals Board panel decisions ...
On April 22, 2014, the parties filed joint Stipulations with Request for Award, for injury to "upper extremity" and "hand" on 8/19/11 (ADJ8177678) and for cumulative injury ending 9/26/11, to "upper extremity," "hand," "neck" and "back" (ADJ8177385), while employed as a landscape worker by Community Action Board, insured by State Compensation Insurance Fund.
Applicant reported psychological symptoms to her doctors prior to entering into the 2014 Stipulations with Request for Award. Neither physician expressed an opinion on causation of the psychological symptoms or whether they caused disability.
On 9/10/15, applicant filed a Petition to Reopen in both cases, alleging a change of condition, increase in PD, need for further medical treatment and different vocational factors. On 10/2/17, an Amended Application for Adjudication was filed in ADJ8177385, adding "psyche" as an additional injured body part. The cases went to trial on the issues of injury to the psyche, good cause to reopen per applicant’s 9/13/15 Petition.
A 2018 report concluded, for the first time, that applicant met the requirements of Labor Code Sec. 3208.3, because she had a mental disorder per the DSM that was predominantly caused by the industrial injury in August of 2011.
The WCJ found psychiatric injury and good cause to reopen. The employer's Petition for Reconsideration was denied in the panel decision of Maureen Ford v Communication Action Board of Santa Cruz, ADJ8177678-ADJ8177385.
The sole issue raised by defendant on reconsideration is that the WCJ erred in finding good cause to reopen the Award in Case No. ADJ8177385 for new and further psychiatric injury and disability where there was evidence of psychiatric injury at the time of the original Findings and Award. Defendant argues that, because the medical record documents that applicant expressed psychiatric symptoms prior to the April 22, 2014 Findings and Award, the psychiatric injury and disability found by the WCJ now is not "new and further."
In this case, there are only brief mentions of psychiatric symptoms in the medical record. There is no evidence of any psychiatric condition causing either disability or a need for treatment nor is there evidence of a formal diagnosis. Therefore, there is no substantial medical evidence establishing industrial causation for the psychiatric injury pursuant to section 3208.3(a).
The Board concluded that a psychiatric injury does not fall within the ambit of the workers’ compensation system until it causes either disability or a need for medical treatment and it is diagnosed using the terminology and criteria of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.
In this case, the decision was said to be consistent the the outcomes in a number of Appeals Board panel decisions ...
On February 2, 2021, the Sacramento Police Department North Gang Enforcement Team conducted a traffic stop on 24-year-old Adrian Sykes and found him to be in possession of a fully automatic Glock handgun.
Officers conducted a probation search of his residence and seized drugs, body armor and five additional firearms. Those firearms included a loaded Masterpiece Arms Mac-9 with no serial number, an Anderson Manufacturing AR-15, and an unregistered loaded ABC Rifle AR-Pistol.
Officers also found six Employment Development Department (EDD) debit cards. At that time, Sykes was charged with six counts of being a felon in possession of a firearm, one count of possessing drugs with a firearm, and one count of being a felon in possession of ammunition. Sykes posted bail on these offenses and was released from custody.
The Sacramento County District Attorney’s Office, Sacramento Police Department, and EDD conducted a joint investigation into the six EDD cards that were located.
They found that Sykes and his girlfriend, 26-year-old Brittney Murchison, had filed multiple fraudulent EDD claims. In total, 35 different fraudulent claims were filed using the personal identifying information of victims from across the country and over $600,000 was illegally obtained.
The Sacramento Police Department North Gang Enforcement Team arrested Brittney Murchison on May 27, 2021 for committing EDD fraud. Murchison was charged with 16 counts of EDD fraud and one count of identity theft.
Sykes was located and arrested in Las Vegas, Nevada on June 7, 2021 by agents of the Las Vegas Metro Police Department and agents from the Federal Bureau of Alcohol Tobacco and Firearms. Sykes is currently in custody in Las Vegas pending extradition to Sacramento, California where he will face an additional 35 counts of EDD fraud and one count of identity theft.
According to District Attorney Anne Marie Schubert, "Law enforcement across the state has witnessed staggering EDD fraud committed by criminals and their accomplices. At the same time, we have witnessed an alarming increase of illegal firearms in our communities. This dangerous combination undoubtedly has fueled a dramatic increase in violent crime throughout the state. Sacramento’s law enforcement agencies will continue to partner together to investigate EDD fraud and the additional havoc it brings to our community." ...
Officers conducted a probation search of his residence and seized drugs, body armor and five additional firearms. Those firearms included a loaded Masterpiece Arms Mac-9 with no serial number, an Anderson Manufacturing AR-15, and an unregistered loaded ABC Rifle AR-Pistol.
Officers also found six Employment Development Department (EDD) debit cards. At that time, Sykes was charged with six counts of being a felon in possession of a firearm, one count of possessing drugs with a firearm, and one count of being a felon in possession of ammunition. Sykes posted bail on these offenses and was released from custody.
The Sacramento County District Attorney’s Office, Sacramento Police Department, and EDD conducted a joint investigation into the six EDD cards that were located.
They found that Sykes and his girlfriend, 26-year-old Brittney Murchison, had filed multiple fraudulent EDD claims. In total, 35 different fraudulent claims were filed using the personal identifying information of victims from across the country and over $600,000 was illegally obtained.
The Sacramento Police Department North Gang Enforcement Team arrested Brittney Murchison on May 27, 2021 for committing EDD fraud. Murchison was charged with 16 counts of EDD fraud and one count of identity theft.
Sykes was located and arrested in Las Vegas, Nevada on June 7, 2021 by agents of the Las Vegas Metro Police Department and agents from the Federal Bureau of Alcohol Tobacco and Firearms. Sykes is currently in custody in Las Vegas pending extradition to Sacramento, California where he will face an additional 35 counts of EDD fraud and one count of identity theft.
According to District Attorney Anne Marie Schubert, "Law enforcement across the state has witnessed staggering EDD fraud committed by criminals and their accomplices. At the same time, we have witnessed an alarming increase of illegal firearms in our communities. This dangerous combination undoubtedly has fueled a dramatic increase in violent crime throughout the state. Sacramento’s law enforcement agencies will continue to partner together to investigate EDD fraud and the additional havoc it brings to our community." ...
On June 3rd, the Occupational Safety and Health Standards Board readopted Cal/OSHA’s revised COVID-19 prevention emergency temporary standards.
Last year, the Board adopted health and safety standards to protect workers from COVID-19. The standards did not consider vaccinations and required testing, quarantining, masking and more to protect workers from COVID-19.
The changes adopted by the Board phase out physical distancing and make other adjustments to better align with the state’s June 15 goal to retire the Blueprint. Without these changes, the original standards, would be in place until at least October 2. These restrictions are no longer required given today’s record low case rates and the fact that we’ve administered 37 million vaccines. The revised emergency standards are expected to go into effect no later than June 15 if approved by the Office of Administrative Law in the next 10 calendar days. Some provisions go into effect starting on July 31, 2021.
The revised standards are the first update to Cal/OSHA’s temporary COVID-19 prevention requirements adopted in November 2020.
The Board may further refine the regulations in the coming weeks to take into account changes in circumstances, especially as related to the availability of vaccines and low case rates across the state.
The standards apply to most workers in California not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard. Notable revisions include:
- - Face Coverings: Fully vaccinated workers without COVID-19 symptoms do not need to wear face coverings in a room where everyone else is fully vaccinated and not showing symptoms. Fully vaccinated and unvaccinated workers without symptoms do not need to wear face coverings outdoors except when working at "outdoor mega events" with over 10,000 attendees, which may include events or theme parks. Indoors, all workers – regardless of vaccination status – will continue to be required to wear a face covering.
- - Physical Distancing: When the revised standards take effect, employers can eliminate physical distancing and partitions/barriers for employees working indoors and at outdoor mega events if they provide respirators, such as N95s, to unvaccinated employees for voluntary use. After July 31, physical distancing and barriers are no longer required (except during outbreaks), but employers must provide all unvaccinated employees with N95s for voluntary use. - - Prevention Program: Employers are still required to maintain a written COVID-19 Prevention Program but there are some key changes to requirements:
- - - - Employers must review the California Department of Public Health’s Interim guidance for Ventilation, Filtration, and Air Quality in Indoor Environments.
- - - - COVID-19 prevention training must now include information on how the vaccine is effective at preventing COVID-19 and protecting against both transmission and serious illness or death.
- - Exclusion from the Workplace: Fully vaccinated workers who do not have COVID-19 symptoms no longer need to be excluded from the workplace after a close contact. - - Special Protections for Housing and Transportation: Special COVID-19 prevention measures that apply to employer-provided housing and transportation no longer apply if all occupants are fully vaccinated.
The Standards Board will file the readoption rulemaking package with the Office of Administrative Law, which has 10 calendar days to review and approve the temporary workplace safety standards enforced by Cal/OSHA. Once approved and published, the full text of the revised emergency standards will appear in the Title 8 sections 3205 (COVID-19 Prevention), 3205.1 (Multiple COVID-19 Infections and COVID-19 Outbreaks), 3205.2 (Major COVID-19 Outbreaks) 3205.3 (COVID-19 Prevention in Employer-Provided Housing) and 3205.4 (COVID-19 Prevention in Employer-Provided Transportation) of the California Code of Regulations. Pursuant to the state’s emergency rulemaking process, this is the first of two opportunities to readopt the temporary standards after the initial effective period.
The Standards Board also convened a representative subcommittee to work with Cal/OSHA on a proposal for further updates to the standard, as part of the emergency rulemaking process. It is anticipated this newest proposal, once developed, will be heard at an upcoming Board meeting. The subcommittee will provide regular updates at the Standards Board monthly meetings.
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Last year, the Board adopted health and safety standards to protect workers from COVID-19. The standards did not consider vaccinations and required testing, quarantining, masking and more to protect workers from COVID-19.
The changes adopted by the Board phase out physical distancing and make other adjustments to better align with the state’s June 15 goal to retire the Blueprint. Without these changes, the original standards, would be in place until at least October 2. These restrictions are no longer required given today’s record low case rates and the fact that we’ve administered 37 million vaccines. The revised emergency standards are expected to go into effect no later than June 15 if approved by the Office of Administrative Law in the next 10 calendar days. Some provisions go into effect starting on July 31, 2021.
The revised standards are the first update to Cal/OSHA’s temporary COVID-19 prevention requirements adopted in November 2020.
The Board may further refine the regulations in the coming weeks to take into account changes in circumstances, especially as related to the availability of vaccines and low case rates across the state.
The standards apply to most workers in California not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard. Notable revisions include:
- - Face Coverings: Fully vaccinated workers without COVID-19 symptoms do not need to wear face coverings in a room where everyone else is fully vaccinated and not showing symptoms. Fully vaccinated and unvaccinated workers without symptoms do not need to wear face coverings outdoors except when working at "outdoor mega events" with over 10,000 attendees, which may include events or theme parks. Indoors, all workers – regardless of vaccination status – will continue to be required to wear a face covering.
- - Physical Distancing: When the revised standards take effect, employers can eliminate physical distancing and partitions/barriers for employees working indoors and at outdoor mega events if they provide respirators, such as N95s, to unvaccinated employees for voluntary use. After July 31, physical distancing and barriers are no longer required (except during outbreaks), but employers must provide all unvaccinated employees with N95s for voluntary use. - - Prevention Program: Employers are still required to maintain a written COVID-19 Prevention Program but there are some key changes to requirements:
- - - - Employers must review the California Department of Public Health’s Interim guidance for Ventilation, Filtration, and Air Quality in Indoor Environments.
- - - - COVID-19 prevention training must now include information on how the vaccine is effective at preventing COVID-19 and protecting against both transmission and serious illness or death.
- - Exclusion from the Workplace: Fully vaccinated workers who do not have COVID-19 symptoms no longer need to be excluded from the workplace after a close contact. - - Special Protections for Housing and Transportation: Special COVID-19 prevention measures that apply to employer-provided housing and transportation no longer apply if all occupants are fully vaccinated.
The Standards Board will file the readoption rulemaking package with the Office of Administrative Law, which has 10 calendar days to review and approve the temporary workplace safety standards enforced by Cal/OSHA. Once approved and published, the full text of the revised emergency standards will appear in the Title 8 sections 3205 (COVID-19 Prevention), 3205.1 (Multiple COVID-19 Infections and COVID-19 Outbreaks), 3205.2 (Major COVID-19 Outbreaks) 3205.3 (COVID-19 Prevention in Employer-Provided Housing) and 3205.4 (COVID-19 Prevention in Employer-Provided Transportation) of the California Code of Regulations. Pursuant to the state’s emergency rulemaking process, this is the first of two opportunities to readopt the temporary standards after the initial effective period.
The Standards Board also convened a representative subcommittee to work with Cal/OSHA on a proposal for further updates to the standard, as part of the emergency rulemaking process. It is anticipated this newest proposal, once developed, will be heard at an upcoming Board meeting. The subcommittee will provide regular updates at the Standards Board monthly meetings.
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In December 2015, Carolyn Mattson incurred a work-related injury that left her unable to perform the normal duties of her regular employment.
During her period of recovery, she was assigned by her employer to work as a volunteer at a food bank warehouse operated by Feeding America Riverside San Bernardino Counties, Inc. as part of a transitional work program. While there, Mattson incurred a second injury when she tripped over a wooden pallet on the floor of Feeding America’s warehouse.
Mattson filed a complaint against Feeding America that sought compensation for her injury based upon the theories of negligence and premises liability.
Among other things, defendant alleged as an affirmative defense that prior to participating in any activities with defendant, plaintiff had executed a written agreement entitled, "Waiver and Release of Liability," which voluntarily released defendant from liability for any future personal injuries arising from defendant’s negligence.
The trial court granted summary judgment in favor of Feeding America based upon the affirmative defense of waiver due to a release executed by plaintiff prior to beginning her work, but denied summary judgment with respect to the workers’compensation exclusivity defense. The court of appeal affirmed in the unpublished case of Mattson v. Feeding America Riverside San Bernardino Counties.
The court of appeal deem the separate defense of workers’compensation exclusivity waived on appeal, and summarized only the evidence and law pertaining to the issue of waiver.
An exculpatory contract releasing a party from liability for future ordinary negligence is valid unless it is prohibited by statute or impairs the public interest. However, a release of liability for future ordinary negligence may be invalidated when the court determines that a particular release concerns a service that transcends a purely private agreement and affects the public interest. Additionally, a release of liability for future gross negligence . . . generally is unenforceable as a matter of public policy. There was no allegation in the complaint of gross negligence, thus the issue on appeal was essentially "public interest."
In Tunkl v. Regents of University of Cal. (1963) 60 Cal.2d 92, the California Supreme Court set forth six factors used to determine if a contract affects the public interest.
None of the public interest factors are present in this case, the trial court did not err when it declined to hold the release per se unenforceable as a matter of public policy ...
During her period of recovery, she was assigned by her employer to work as a volunteer at a food bank warehouse operated by Feeding America Riverside San Bernardino Counties, Inc. as part of a transitional work program. While there, Mattson incurred a second injury when she tripped over a wooden pallet on the floor of Feeding America’s warehouse.
Mattson filed a complaint against Feeding America that sought compensation for her injury based upon the theories of negligence and premises liability.
Among other things, defendant alleged as an affirmative defense that prior to participating in any activities with defendant, plaintiff had executed a written agreement entitled, "Waiver and Release of Liability," which voluntarily released defendant from liability for any future personal injuries arising from defendant’s negligence.
The trial court granted summary judgment in favor of Feeding America based upon the affirmative defense of waiver due to a release executed by plaintiff prior to beginning her work, but denied summary judgment with respect to the workers’compensation exclusivity defense. The court of appeal affirmed in the unpublished case of Mattson v. Feeding America Riverside San Bernardino Counties.
The court of appeal deem the separate defense of workers’compensation exclusivity waived on appeal, and summarized only the evidence and law pertaining to the issue of waiver.
An exculpatory contract releasing a party from liability for future ordinary negligence is valid unless it is prohibited by statute or impairs the public interest. However, a release of liability for future ordinary negligence may be invalidated when the court determines that a particular release concerns a service that transcends a purely private agreement and affects the public interest. Additionally, a release of liability for future gross negligence . . . generally is unenforceable as a matter of public policy. There was no allegation in the complaint of gross negligence, thus the issue on appeal was essentially "public interest."
In Tunkl v. Regents of University of Cal. (1963) 60 Cal.2d 92, the California Supreme Court set forth six factors used to determine if a contract affects the public interest.
None of the public interest factors are present in this case, the trial court did not err when it declined to hold the release per se unenforceable as a matter of public policy ...
A California Department of Insurance investigation has led to the issuance and filing of indictments against seven defendants by the Kern County Grand Jury. The indictments were issued after the defendants allegedly stole over $330,000 in benefits meant to help injured workers re-enter the workforce.
The defendants were employees and owners of a Bakersfield vocational school, Instituto Hispano Americano (IHA), as well as employees of two local law offices.
They allegedly misused Supplemental Job Displacement Benefit Vouchers, which provide injured workers with up to $6,000 for retraining at a post-secondary educational institution. The training helps the injured worker become more competitive in the job market when they are unable to return to their former employer due to being on total or temporary disability.
The Department’s investigation found the defendants conspired to defraud over 20 insurance companies out of more than $330,000. The defendants systematically sent false or misleading documentation to insurance carriers to prove the injured workers were eligible to obtain voucher money, but the students did not actually meet the minimum qualifications for the program. The defendants allegedly lied about dozens of test results for exams that were required for enrollment.
The investigation also found that injured workers were illegally directed to the school by employees of local law offices, who would be paid as much as $600 for each student they referred to the school.
"Like many types of programs that benefit the public at large, workers’ compensation laws can only help the people who need it most if they are protected from fraud and other schemes designed to misappropriate funds," said Kern County District Attorney Cynthia Zimmer. "When evidence of abuse of the workers’ compensation system is identified, it will be investigated and prosecuted to hold wrongdoers accountable and ensure that benefits remain available for those genuinely qualified to receive them."
Eighty-five charges have been filed against each defendant including conspiracy to commit insurance fraud, concealing facts affecting entitlement to insurance benefits, and offering or receiving money in exchange for referrals.
All seven defendants have been arraigned and are currently awaiting trial in the Kern County Superior Court. The defendants are Anna Ayala-Reyes, Sylvia Carrillo, Evelyn Cruz, Martin Cruz, Nelfido Rolando Cruz, Cynthia Ozaeta, and Sandra Paredez.
The Kern County District Attorney’s Office is prosecuting this case ...
The defendants were employees and owners of a Bakersfield vocational school, Instituto Hispano Americano (IHA), as well as employees of two local law offices.
They allegedly misused Supplemental Job Displacement Benefit Vouchers, which provide injured workers with up to $6,000 for retraining at a post-secondary educational institution. The training helps the injured worker become more competitive in the job market when they are unable to return to their former employer due to being on total or temporary disability.
The Department’s investigation found the defendants conspired to defraud over 20 insurance companies out of more than $330,000. The defendants systematically sent false or misleading documentation to insurance carriers to prove the injured workers were eligible to obtain voucher money, but the students did not actually meet the minimum qualifications for the program. The defendants allegedly lied about dozens of test results for exams that were required for enrollment.
The investigation also found that injured workers were illegally directed to the school by employees of local law offices, who would be paid as much as $600 for each student they referred to the school.
"Like many types of programs that benefit the public at large, workers’ compensation laws can only help the people who need it most if they are protected from fraud and other schemes designed to misappropriate funds," said Kern County District Attorney Cynthia Zimmer. "When evidence of abuse of the workers’ compensation system is identified, it will be investigated and prosecuted to hold wrongdoers accountable and ensure that benefits remain available for those genuinely qualified to receive them."
Eighty-five charges have been filed against each defendant including conspiracy to commit insurance fraud, concealing facts affecting entitlement to insurance benefits, and offering or receiving money in exchange for referrals.
All seven defendants have been arraigned and are currently awaiting trial in the Kern County Superior Court. The defendants are Anna Ayala-Reyes, Sylvia Carrillo, Evelyn Cruz, Martin Cruz, Nelfido Rolando Cruz, Cynthia Ozaeta, and Sandra Paredez.
The Kern County District Attorney’s Office is prosecuting this case ...
Nurse Practitioners growth is expected to be 45%, and Physician Assistants 31% from 2019 to 2029, much faster than the average for all occupations (7%). according to the BLS (2019).
A Nurse Practitioner attends a nursing school, while a Physician Assistant attends a medical school or center of medicine.
Nurses follow a patient-centered model, in which they focus on disease prevention and health education. NPs also handle assessment, diagnosis and treatment. Physician assistants follow a disease-centered model, in which they focus on the biological and pathological components of health while also practicing assessment, diagnosis, and treatment.
NPs can specialize in several areas, including gerontology/geriatrics, mental health, pediatrics, and women’s health. PAs undergo a more generalized education, but can also specialize in areas like emergency medicine, orthopedics, and general surgery.
Both have good job outlooks in California’s future. By a recent count there were nearly 8,000 licensed physician assistants working in California, making an average annual salary of $101,880. Nurse practitioners are earning roughly the same.
The current trend in the healthcare industry is shifting to favor the employment of PAs and NPs as the number of more expensive doctors relatively shrinks. There are currently nine college and university campuses across the state that offer accredited PA degrees with that number expected to rise with the increasing demand for PAs.
The American Academy of PAs (AAPA) recently voted to change the name of their profession from physician assistant to physician associate. It was a decision several years in the making.
"The title physician associate will position PAs to successfully compete in the ever-changing healthcare marketplace by boosting the profession's relevance and impact among stakeholder groups, especially patients," AAPA CEO Lisa Gables told MedPage Today via email.
The name change process officially started in 2018. Over 100 possible new titles were considered. The investigation culminated in a final report presented to the AAPA on Nov. 20, 2020.
AAPA said that PAs should refrain from calling themselves "physician associates" until legislative and regulatory changes can be made. The AAPA website said that doing so prematurely could confuse patients, and may be interpreted as stepping beyond the scope of current PA licensure.
The California Department of Consumer Affairs, Physician Assistant Board posted an Alert on its website that warns "While the Physician Assistant Board is aware of the title change, it is inappropriate for PAs to hold themselves out as "physician associates" unless and until legislative and regulatory changes are made to incorporate the new title." ...
A Nurse Practitioner attends a nursing school, while a Physician Assistant attends a medical school or center of medicine.
Nurses follow a patient-centered model, in which they focus on disease prevention and health education. NPs also handle assessment, diagnosis and treatment. Physician assistants follow a disease-centered model, in which they focus on the biological and pathological components of health while also practicing assessment, diagnosis, and treatment.
NPs can specialize in several areas, including gerontology/geriatrics, mental health, pediatrics, and women’s health. PAs undergo a more generalized education, but can also specialize in areas like emergency medicine, orthopedics, and general surgery.
Both have good job outlooks in California’s future. By a recent count there were nearly 8,000 licensed physician assistants working in California, making an average annual salary of $101,880. Nurse practitioners are earning roughly the same.
The current trend in the healthcare industry is shifting to favor the employment of PAs and NPs as the number of more expensive doctors relatively shrinks. There are currently nine college and university campuses across the state that offer accredited PA degrees with that number expected to rise with the increasing demand for PAs.
The American Academy of PAs (AAPA) recently voted to change the name of their profession from physician assistant to physician associate. It was a decision several years in the making.
"The title physician associate will position PAs to successfully compete in the ever-changing healthcare marketplace by boosting the profession's relevance and impact among stakeholder groups, especially patients," AAPA CEO Lisa Gables told MedPage Today via email.
The name change process officially started in 2018. Over 100 possible new titles were considered. The investigation culminated in a final report presented to the AAPA on Nov. 20, 2020.
AAPA said that PAs should refrain from calling themselves "physician associates" until legislative and regulatory changes can be made. The AAPA website said that doing so prematurely could confuse patients, and may be interpreted as stepping beyond the scope of current PA licensure.
The California Department of Consumer Affairs, Physician Assistant Board posted an Alert on its website that warns "While the Physician Assistant Board is aware of the title change, it is inappropriate for PAs to hold themselves out as "physician associates" unless and until legislative and regulatory changes are made to incorporate the new title." ...
The Labor Commissioner’s Office has cited La Mina De Oro, Inc., and six other businesses $1,393,909 for wage theft violations affecting 107 workers. The Norco-based businesses operated a designer fragrance distribution warehouse and numerous retail stores in Riverside and San Bernardino Counties, with locations in the Los Angeles area and Orange County.
The following businesses and individuals are named in the wage theft citations:
- - La Mina De Oro, Inc., a California Corporation
- - KD Nutley Properties, LLC, a California Limited Liability Company
- - CGC Trading Inc., a California Corporation
- - KD Distributors, Inc., a California Corporation
- - Desire Fragrances Inc., a California Corporation
- - Designer Fragrance Warehouse, a California Corporation
- - Desiree Canlas Nutley, an Individual.
The Labor Commissioner’s Office opened an investigation into the retailer’s operation in June 2018 based on a referral from the Warehouse Worker Resource Center (WWRC), a nonprofit worker-rights community based organization in Ontario. The investigation showed that workers at the retailer’s stores were working off the clock before and after their shifts to receive merchandise from the retailer’s distribution warehouse. They were also forced to work through their meal and rest break periods, particularly during peak holiday seasons.
The citations issued included $126,274 in minimum wages, $102,622 in overtime wages, $188,596 in meal period premiums, $116,113 in rest period premiums, $185,831 in waiting time penalties, $24,563 in contract wages, $160,442 in liquidated damages, and $204,350 in damages to workers. The citations also include $162,750 in penalties payable to the state, $88,200 in civil penalties and $34,168 in interest.
When workers are paid less than minimum wage, they are entitled to liquidated damages that equal the amount of underpaid minimum wages plus interest. Waiting time penalties are imposed when the employer intentionally fails to pay all wages due to the employee at the time of separation. This penalty is calculated by taking the employee’s daily rate of pay and multiplying it by the number of days the employee was not paid, up to a maximum of 30 days.
Enforcement investigations typically include a payroll audit of the previous three years to determine minimum wage, overtime and other labor law violations, and to calculate payments owed and penalties due. Civil penalties collected are transferred to the State’s General Fund as required by law.
According to it's website, Warehouse Worker Resource Center is a nonprofit, 501(c)(3), organization founded in 2011, dedicated to improving working conditions in the warehouse industry in Southern California. It focuses on education, advocacy and action to change poor working conditions in the largest hub of warehousing in the country.
It assists workers dealing with issues of health and safety, wage theft and workers’ compensation when injured. It also serves as a community center for workers, family members and supporters interested in knowing their rights, joining with other workers to share experiences and learn from each other, and building a movement for workers’ rights in the Inland Empire and throughout Southern California.
"Workers in the warehouse industry who experience wage theft should report it to the Labor Commissioner’s Office," added García-Brower. "My office will work to hold the employer accountable, ensure workers get their owed wages, and prevent law-abiding employers from being undercut." ...
The following businesses and individuals are named in the wage theft citations:
- - La Mina De Oro, Inc., a California Corporation
- - KD Nutley Properties, LLC, a California Limited Liability Company
- - CGC Trading Inc., a California Corporation
- - KD Distributors, Inc., a California Corporation
- - Desire Fragrances Inc., a California Corporation
- - Designer Fragrance Warehouse, a California Corporation
- - Desiree Canlas Nutley, an Individual.
The Labor Commissioner’s Office opened an investigation into the retailer’s operation in June 2018 based on a referral from the Warehouse Worker Resource Center (WWRC), a nonprofit worker-rights community based organization in Ontario. The investigation showed that workers at the retailer’s stores were working off the clock before and after their shifts to receive merchandise from the retailer’s distribution warehouse. They were also forced to work through their meal and rest break periods, particularly during peak holiday seasons.
The citations issued included $126,274 in minimum wages, $102,622 in overtime wages, $188,596 in meal period premiums, $116,113 in rest period premiums, $185,831 in waiting time penalties, $24,563 in contract wages, $160,442 in liquidated damages, and $204,350 in damages to workers. The citations also include $162,750 in penalties payable to the state, $88,200 in civil penalties and $34,168 in interest.
When workers are paid less than minimum wage, they are entitled to liquidated damages that equal the amount of underpaid minimum wages plus interest. Waiting time penalties are imposed when the employer intentionally fails to pay all wages due to the employee at the time of separation. This penalty is calculated by taking the employee’s daily rate of pay and multiplying it by the number of days the employee was not paid, up to a maximum of 30 days.
Enforcement investigations typically include a payroll audit of the previous three years to determine minimum wage, overtime and other labor law violations, and to calculate payments owed and penalties due. Civil penalties collected are transferred to the State’s General Fund as required by law.
According to it's website, Warehouse Worker Resource Center is a nonprofit, 501(c)(3), organization founded in 2011, dedicated to improving working conditions in the warehouse industry in Southern California. It focuses on education, advocacy and action to change poor working conditions in the largest hub of warehousing in the country.
It assists workers dealing with issues of health and safety, wage theft and workers’ compensation when injured. It also serves as a community center for workers, family members and supporters interested in knowing their rights, joining with other workers to share experiences and learn from each other, and building a movement for workers’ rights in the Inland Empire and throughout Southern California.
"Workers in the warehouse industry who experience wage theft should report it to the Labor Commissioner’s Office," added García-Brower. "My office will work to hold the employer accountable, ensure workers get their owed wages, and prevent law-abiding employers from being undercut." ...
49 year old Nissim Vaknin, who lives in Encino, was arraigned for felony insurance fraud after an investigation by the California Department of Insurance revealed he allegedly underreported employee payroll by over $70 million, in order to fraudulently reduce his business’s premium for workers’ compensation insurance by over $25 million.
The State Compensation Insurance Fund (SCIF) filed a suspected fraudulent claim in 2018 with the Department of Insurance after a routine payroll audit for Van Nuys-based NV Construction, owned by Vaknin, identified large discrepancies.
Department detectives conducted a search warrant of NV Construction’s bank records, which showed that for the policy period of October 2014 through March 2018, Vaknin reported a total of $4,083,483 in payroll to SCIF; however, the Department’s investigation found the actual payroll was $74,741,381.
Vaknin underreported payroll by over $70 million, resulting in a premium loss to SCIF of $25,129,032.
"By allegedly underreporting payroll, this business owner not only hurt other businesses who pay for this fraud through higher premiums, he also put their own employees at risk," said Insurance Commissioner Ricardo Lara. "My Department is committed to investigating fraud in order to protect workers and honest businesses, especially now as our state is struggling through this pandemic."
Vaknin was arraigned at the Los Angeles Superior Court on May 28, 2021. This case is being prosecuted by the Los Angeles County District Attorney’s Office ...
The State Compensation Insurance Fund (SCIF) filed a suspected fraudulent claim in 2018 with the Department of Insurance after a routine payroll audit for Van Nuys-based NV Construction, owned by Vaknin, identified large discrepancies.
Department detectives conducted a search warrant of NV Construction’s bank records, which showed that for the policy period of October 2014 through March 2018, Vaknin reported a total of $4,083,483 in payroll to SCIF; however, the Department’s investigation found the actual payroll was $74,741,381.
Vaknin underreported payroll by over $70 million, resulting in a premium loss to SCIF of $25,129,032.
"By allegedly underreporting payroll, this business owner not only hurt other businesses who pay for this fraud through higher premiums, he also put their own employees at risk," said Insurance Commissioner Ricardo Lara. "My Department is committed to investigating fraud in order to protect workers and honest businesses, especially now as our state is struggling through this pandemic."
Vaknin was arraigned at the Los Angeles Superior Court on May 28, 2021. This case is being prosecuted by the Los Angeles County District Attorney’s Office ...
In 2018, Diana Barrett claimed injury to her psyche, hypertension and gastrointestinal system while employed as an animal services manager by the City of Yuba City. The employer denied her claim in its entirety.
Helayna Taylor, Ph.D. was the original psychological QME and issued a medical-legal evaluative report regarding applicant dated February 25, 2019. Dr. Taylor retired and the parties have stipulated that she is no longer a QME.
The parties disputed which documents may be sent to the replacement QME, Dr. Poston, and the contents of defendant’s proposed letter to the QME. Defendant objected to sending Dr. Taylor’s report to Dr. Poston.
The matter proceeded to trial regarding the issue of what documents should go to a new QME Dr. Poston.
The WCJ ordered that certain exhibits were not to be forwarded to Dr. Poston, including Dr. Taylor’s report. This aspect of the order was reversed in the panel decision of Barrett v City of Yuba City.
An adequate history and examination by the current QME should include review of the previous QME’s report in the absence of a basis for excluding the report from the record. The record reflects that Dr. Taylor’s report was obtained in accordance with the Labor Code. She was replaced as the QME because she retired. The record does not indicate a basis to preclude review of her report by the current QME.
Furthermore, Labor Code section 4062.3(a)(2) permits any party to provide medical records relevant to determination of the medical issues to a QME. (See also Cal. Code Regs., tit. 8, § 35(a)(2) [the employer shall provide to the medical-legal evaluator "[o]ther medical records, including any previous treatment records or information, which are relevant to determination of the medical issue(s) in dispute.")
The panel noted that this "language is fairly expansive in what medical records may be provided to the QME."
"Dr. Taylor conducted a psychological evaluation of applicant and addressed her psychiatric claim of injury. Causation for applicant’s psychiatric claim remains in dispute since defendant has not accepted it as compensable. Dr. Taylor’s report is consequently relevant to determination of the medical issues in dispute and may be provided to the current QME for his review ...
Helayna Taylor, Ph.D. was the original psychological QME and issued a medical-legal evaluative report regarding applicant dated February 25, 2019. Dr. Taylor retired and the parties have stipulated that she is no longer a QME.
The parties disputed which documents may be sent to the replacement QME, Dr. Poston, and the contents of defendant’s proposed letter to the QME. Defendant objected to sending Dr. Taylor’s report to Dr. Poston.
The matter proceeded to trial regarding the issue of what documents should go to a new QME Dr. Poston.
The WCJ ordered that certain exhibits were not to be forwarded to Dr. Poston, including Dr. Taylor’s report. This aspect of the order was reversed in the panel decision of Barrett v City of Yuba City.
An adequate history and examination by the current QME should include review of the previous QME’s report in the absence of a basis for excluding the report from the record. The record reflects that Dr. Taylor’s report was obtained in accordance with the Labor Code. She was replaced as the QME because she retired. The record does not indicate a basis to preclude review of her report by the current QME.
Furthermore, Labor Code section 4062.3(a)(2) permits any party to provide medical records relevant to determination of the medical issues to a QME. (See also Cal. Code Regs., tit. 8, § 35(a)(2) [the employer shall provide to the medical-legal evaluator "[o]ther medical records, including any previous treatment records or information, which are relevant to determination of the medical issue(s) in dispute.")
The panel noted that this "language is fairly expansive in what medical records may be provided to the QME."
"Dr. Taylor conducted a psychological evaluation of applicant and addressed her psychiatric claim of injury. Causation for applicant’s psychiatric claim remains in dispute since defendant has not accepted it as compensable. Dr. Taylor’s report is consequently relevant to determination of the medical issues in dispute and may be provided to the current QME for his review ...
Million Seifu worked as a driver for Lyft, Inc.
Seifu filed a complaint against Lyft in July 2018, alleging a single Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.) claim on behalf of the state of California and other similarly situated individuals who worked as drivers for Lyft in California.
He alleged that Lyft misclassified him and other drivers as independent contractors rather than employees, thereby violating multiple provisions of the Labor Code.
Lyft petitioned to compel arbitration of Seifu’s individual PAGA claim and stay proceedings in the trial court pending arbitration. Lyft asserted that the PAGA waiver in Seifu’s arbitration agreement was enforceable under the 2018 United States Supreme Court opinion in Epic Systems Corp. v. Lewis.
The trial court denied the motion, rejecting Lyft’s argument that the clause in the arbitration provision waiving Seifu’s right to bring a representative PAGA claim was enforceable.
The court of appeal affirmed the trial court, and held the Lyft arbitration agreement was unenforceable in the unpublished case of Seifu v Lyft.
Epic Systems Corp. v. Lewis was one of three cases consolidated by the United States Supreme Court in 2017 that raised the issue of the Federal Arbitration Act's preemptive effect over private employment arbitration agreements prohibiting class and collective actions.
In Iskanian Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, the California Supreme Court held "that an employee’s right to bring a PAGA action is unwaivable," and that "where . . . an employment agreement compels the waiver of representative claims under the PAGA, it is contrary to public policy and unenforceable as a matter of state law."
Numerous California Courts of Appeal have rejected the contention that Iskanian is no longer good law in the wake of Epic. On federal questions, intermediate appellate courts in California must follow the decisions of the California Supreme Court, unless the United States Supreme Court has decided the same question differently.
In this case the Court of Appeal agreed with the reasoning of the line of state cases, and conclude that Lyft’s argument regarding the PAGA waiver’s enforceability is without merit ...
Seifu filed a complaint against Lyft in July 2018, alleging a single Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.) claim on behalf of the state of California and other similarly situated individuals who worked as drivers for Lyft in California.
He alleged that Lyft misclassified him and other drivers as independent contractors rather than employees, thereby violating multiple provisions of the Labor Code.
Lyft petitioned to compel arbitration of Seifu’s individual PAGA claim and stay proceedings in the trial court pending arbitration. Lyft asserted that the PAGA waiver in Seifu’s arbitration agreement was enforceable under the 2018 United States Supreme Court opinion in Epic Systems Corp. v. Lewis.
The trial court denied the motion, rejecting Lyft’s argument that the clause in the arbitration provision waiving Seifu’s right to bring a representative PAGA claim was enforceable.
The court of appeal affirmed the trial court, and held the Lyft arbitration agreement was unenforceable in the unpublished case of Seifu v Lyft.
Epic Systems Corp. v. Lewis was one of three cases consolidated by the United States Supreme Court in 2017 that raised the issue of the Federal Arbitration Act's preemptive effect over private employment arbitration agreements prohibiting class and collective actions.
In Iskanian Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, the California Supreme Court held "that an employee’s right to bring a PAGA action is unwaivable," and that "where . . . an employment agreement compels the waiver of representative claims under the PAGA, it is contrary to public policy and unenforceable as a matter of state law."
Numerous California Courts of Appeal have rejected the contention that Iskanian is no longer good law in the wake of Epic. On federal questions, intermediate appellate courts in California must follow the decisions of the California Supreme Court, unless the United States Supreme Court has decided the same question differently.
In this case the Court of Appeal agreed with the reasoning of the line of state cases, and conclude that Lyft’s argument regarding the PAGA waiver’s enforceability is without merit ...
Bloomberg Law reports that a California attorney is facing charges for felony offenses stemming from an alleged marketing scheme involving the well known Jacoby & Meyers firm.
The 26 count criminal complaint filed by Orange County prosecutors alleges that 45 year old Steven Omid Mehr, used an illegal referral system to send potential clients to Jacoby & Meyers and load them up with fees in the process. His website claims his firm was awarded "Best Attorneys of America" by Rues Rating Service.
Mehr also allegedly used the system to direct business to copying and printing services providers he controlled, bilking unsuspecting clients and worker compensation insurance companies.
The indictment accuses Mehr of purchasing usage rights from Jacoby & Meyers in a referral-for-compensation criminal conspiracy for his attorney marketing firm, Web Shark 360. The URL for webshard360.com redirects to the Mehr website.
Mehr, has been a licensed attorney in California since 2005. Bloomberg Law reports that he described himself as "chairman of the Law Office of Jacoby & Meyers California operations" in a 2015 interview with an online legal industry publication. He purchased the L.A. Weekly in 2017 with other investors.
The indictment outlines a five-year conspiracy from 2011 to 2016 that allegedly involved Mehr and George Pershing Hobson, who is not an attorney.
Prosecutors say Mehr and Hobson’s arrangement violated California Labor Code Section 3215, which prohibits paid referrals in the worker’s compensation and insurance industries, as did their co-ownership of an interpretation company, National Translations Services.The indictment charges Mehr with two felony conspiracy counts for referral of clients for compensation, as well as 22 counts of insurance fraud.
He’s being prosecuted by Orange County Deputy District Attorney Noorul Hasan, who also is prosecuting Mehr. Hassan declined comment when reached by Bloomberg Law.
The case is California v. Mehr, Cal. Super. Ct., No. 21ZF0015. Mehr is set to be arraigned July 12 on the indictment, which a grand jury returned last April. Both defendants have posted $100,000 bond while they await trial.
The criminal indictment in California may have a similar pattern, and follows a proposed New Jersey class action against Jacoby & Meyers, in which the plaintiffs say a third-party service company extracted thousands of dollars in additional fees that should have already been paid by their lawyers.
The suit, filed in federal court in Newark, New Jersey, pertains to Nancy and Jeffrey Harding and their former lawyers, Finkelstein & Partners, LLP, and a similar dispute between Barbara J. Smalls and her former lawyers, Jacoby & Myers, LLP.for work sent to Total Trial Solutions, MedTrial Solutions and CineTrial Solutions.
According to the suit, the litigation support companies are owned by Andrew Finkelstein, a partner of both Jacoby and Finkelstein, and Kenneth Oliver, a former partner of both firms. Plaintiffs also allege that the Law Firm Defendants improperly marked-up the cost of Total Trial's work in order to make a profit.
In a January 2020 ruling, U.S. District Judge John Michael Vazquez granted Jacoby & Meyers’ motion to dismiss a claim for unjust enrichment, but declined to dismiss the case based on a lack of standing for plaintiff Barbara Smalls. He also declined to throw out allegations that defendants Andrew Finkelstein, his firm Finkelstein & Partners, and a company called Total Trial Solutions are alter egos.
According to the lengthy federal court docket, motions are pending in the case which is not yet scheduled for trial.
What remains to be seen, is the evidence in the Orange County criminal case that may or may not connect the dots showing a similar practice in California as what is alleged in the New Jersey civil case, specifically with respect to workers' compensation claims, and the liens generated for services in those cases. The focus in California will start with National Translations Services, and what is alleged by prosecutors. And then to the copying and printing service providers ...
The 26 count criminal complaint filed by Orange County prosecutors alleges that 45 year old Steven Omid Mehr, used an illegal referral system to send potential clients to Jacoby & Meyers and load them up with fees in the process. His website claims his firm was awarded "Best Attorneys of America" by Rues Rating Service.
Mehr also allegedly used the system to direct business to copying and printing services providers he controlled, bilking unsuspecting clients and worker compensation insurance companies.
The indictment accuses Mehr of purchasing usage rights from Jacoby & Meyers in a referral-for-compensation criminal conspiracy for his attorney marketing firm, Web Shark 360. The URL for webshard360.com redirects to the Mehr website.
Mehr, has been a licensed attorney in California since 2005. Bloomberg Law reports that he described himself as "chairman of the Law Office of Jacoby & Meyers California operations" in a 2015 interview with an online legal industry publication. He purchased the L.A. Weekly in 2017 with other investors.
The indictment outlines a five-year conspiracy from 2011 to 2016 that allegedly involved Mehr and George Pershing Hobson, who is not an attorney.
Prosecutors say Mehr and Hobson’s arrangement violated California Labor Code Section 3215, which prohibits paid referrals in the worker’s compensation and insurance industries, as did their co-ownership of an interpretation company, National Translations Services.The indictment charges Mehr with two felony conspiracy counts for referral of clients for compensation, as well as 22 counts of insurance fraud.
He’s being prosecuted by Orange County Deputy District Attorney Noorul Hasan, who also is prosecuting Mehr. Hassan declined comment when reached by Bloomberg Law.
The case is California v. Mehr, Cal. Super. Ct., No. 21ZF0015. Mehr is set to be arraigned July 12 on the indictment, which a grand jury returned last April. Both defendants have posted $100,000 bond while they await trial.
The criminal indictment in California may have a similar pattern, and follows a proposed New Jersey class action against Jacoby & Meyers, in which the plaintiffs say a third-party service company extracted thousands of dollars in additional fees that should have already been paid by their lawyers.
The suit, filed in federal court in Newark, New Jersey, pertains to Nancy and Jeffrey Harding and their former lawyers, Finkelstein & Partners, LLP, and a similar dispute between Barbara J. Smalls and her former lawyers, Jacoby & Myers, LLP.for work sent to Total Trial Solutions, MedTrial Solutions and CineTrial Solutions.
According to the suit, the litigation support companies are owned by Andrew Finkelstein, a partner of both Jacoby and Finkelstein, and Kenneth Oliver, a former partner of both firms. Plaintiffs also allege that the Law Firm Defendants improperly marked-up the cost of Total Trial's work in order to make a profit.
In a January 2020 ruling, U.S. District Judge John Michael Vazquez granted Jacoby & Meyers’ motion to dismiss a claim for unjust enrichment, but declined to dismiss the case based on a lack of standing for plaintiff Barbara Smalls. He also declined to throw out allegations that defendants Andrew Finkelstein, his firm Finkelstein & Partners, and a company called Total Trial Solutions are alter egos.
According to the lengthy federal court docket, motions are pending in the case which is not yet scheduled for trial.
What remains to be seen, is the evidence in the Orange County criminal case that may or may not connect the dots showing a similar practice in California as what is alleged in the New Jersey civil case, specifically with respect to workers' compensation claims, and the liens generated for services in those cases. The focus in California will start with National Translations Services, and what is alleged by prosecutors. And then to the copying and printing service providers ...
A federal grand jury brought a six-count indictment against 34 Cecilia Aquino, of Fresno, charging her with mail fraud, wire fraud, and aggravated identity theft for submitting unemployment insurance claims and applications for Small Business Administration (SBA) Economic Injury and Disaster Loans using stolen identities.
According to court documents, from June through November 2020, Aquino submitted unemployment benefit claims in at least seven states and at least four loan applications that contained misrepresentations. She claimed that the named individuals last worked as self-employed dancers and owned interior design businesses, and that because of the COVID-19 pandemic, they lost their jobs and business revenue, respectively.
The state workforce agencies that administer the unemployment insurance system, the SBA, and the United States suffered an actual loss of at least $220,000 and were subject to a potential loss of more than $350,000 because of Aquino’s fraud. Aquino used the money for gambling, rent, shopping, and other personal expenditures.
If convicted, Aquino faces a maximum statutory penalty of 20 years in prison and a fine of up to $250,000 for each of the mail and wire fraud counts, and a mandatory two-year sentence consecutive to other counts and a fine of up to $250,000 for each of the aggravated identity theft counts.
And in an unrelated case, 44 year old Deborah Shannell Hollimon, of West Memphis, Arkansas, pleaded guilty to committing mail fraud in connection with California state unemployment insurance benefits.
This case was well before the current pandemic, and demonstrates that EDD fraud has existed for many years.
According to court documents, from September 2012 through September 2015, Hollimon and others filed over 100 fraudulent unemployment insurance claims with the California EDD seeking approximately $882,991 using fictitious businesses.
Hollimon created fictitious employers with EDD and then submitted information to EDD reporting fake employees for the businesses. Almost all, of the individuals reported as employees of the companies were actually victims of identity theft. Hollimon subsequently filed unemployment claims in her own name and in the names of the fake employees in order to collect the benefits. Approximately $569,168 in fraudulent benefits was paid out by EDD.
Hollimon is scheduled to be sentenced on Aug. 19. Hollimon faces a maximum statutory penalty of 20 years in prison and a $250,000 fine ...
According to court documents, from June through November 2020, Aquino submitted unemployment benefit claims in at least seven states and at least four loan applications that contained misrepresentations. She claimed that the named individuals last worked as self-employed dancers and owned interior design businesses, and that because of the COVID-19 pandemic, they lost their jobs and business revenue, respectively.
The state workforce agencies that administer the unemployment insurance system, the SBA, and the United States suffered an actual loss of at least $220,000 and were subject to a potential loss of more than $350,000 because of Aquino’s fraud. Aquino used the money for gambling, rent, shopping, and other personal expenditures.
If convicted, Aquino faces a maximum statutory penalty of 20 years in prison and a fine of up to $250,000 for each of the mail and wire fraud counts, and a mandatory two-year sentence consecutive to other counts and a fine of up to $250,000 for each of the aggravated identity theft counts.
And in an unrelated case, 44 year old Deborah Shannell Hollimon, of West Memphis, Arkansas, pleaded guilty to committing mail fraud in connection with California state unemployment insurance benefits.
This case was well before the current pandemic, and demonstrates that EDD fraud has existed for many years.
According to court documents, from September 2012 through September 2015, Hollimon and others filed over 100 fraudulent unemployment insurance claims with the California EDD seeking approximately $882,991 using fictitious businesses.
Hollimon created fictitious employers with EDD and then submitted information to EDD reporting fake employees for the businesses. Almost all, of the individuals reported as employees of the companies were actually victims of identity theft. Hollimon subsequently filed unemployment claims in her own name and in the names of the fake employees in order to collect the benefits. Approximately $569,168 in fraudulent benefits was paid out by EDD.
Hollimon is scheduled to be sentenced on Aug. 19. Hollimon faces a maximum statutory penalty of 20 years in prison and a $250,000 fine ...
The Department of Justice announced criminal charges against 14 defendants in seven federal districts across the United States for their alleged participation in various health care fraud schemes, that exploited the COVID-19 pandemic and resulted in over $143 million in false billings.
Multiple defendants offered COVID-19 tests to Medicare beneficiaries at senior living facilities, drive-through COVID-19 testing sites, and medical offices to induce the beneficiaries to provide their personal identifying information and a saliva or blood sample.
The defendants are alleged to have then misused the information and samples to submit claims to Medicare for unrelated, medically unnecessary, and far more expensive laboratory tests, including cancer genetic testing, allergy testing, and respiratory pathogen panel tests.
In some cases, and as alleged, the COVID-19 test results were not provided to the beneficiaries in a timely fashion or were not reliable, risking the further spread of the disease, and the genetic, allergy, and respiratory pathogen testing was medically unnecessary, and, in many cases, the results were not provided to the patients or their actual primary care doctors.
The proceeds of the fraudulent schemes were allegedly laundered through shell corporations and used to purchase exotic automobiles and luxury real estate.
The Fraud Section is prosecuting the cases in the following districts: Western District of Arkansas, Northern District of California, Middle District of Louisiana, Central District of California, Southern District of Florida, District of New Jersey, and the Eastern District of New York.
Northern District of California
Mark Schena, 58, of Los Altos, California, the president of Arrayit Corporation, is charged along with two others, the Arrayit Vice President of Marketing and the President of an Arizona marketing organization, in connection with the submission of over $70 million in false and fraudulent claims for allergy and COVID-19 testing. The superseding indictment against Schena includes new counts of health care fraud, a conspiracy to pay kickbacks, and payment of kickbacks in connection with false and fraudulent statements about the existence, regulatory status, and accuracy of an Arrayit COVID-19 test. The conspiracy allegedly sought to induce the ordering of the Arrayit COVID-19 test and to bundle, i.e., require combination with, the COVID-19 test and Arrayit’s medically unnecessary allergy test. The COVID-19 test results were not provided in a timely fashion and were not reliable in detecting COVID-19.
Central District of California
Petros Hannesyan, 36, of Burbank, California, was charged with the theft of government property and wire fraud in connection with $229,454 that he obtained from COVID-19 relief programs. Hannesyan, the owner of Hollywood Home Health Services, Inc., a home health agency located in Los Angeles, allegedly misappropriated funds from the CARES Act Provider Relief Fund and submitted false loan applications and a false loan agreement to the Economic Injury Disaster Loan Program, rather than use the funds for COVID-19 patient care and to support small businesses experiencing disruption due to the COVID-19 pandemic.
...
Multiple defendants offered COVID-19 tests to Medicare beneficiaries at senior living facilities, drive-through COVID-19 testing sites, and medical offices to induce the beneficiaries to provide their personal identifying information and a saliva or blood sample.
The defendants are alleged to have then misused the information and samples to submit claims to Medicare for unrelated, medically unnecessary, and far more expensive laboratory tests, including cancer genetic testing, allergy testing, and respiratory pathogen panel tests.
In some cases, and as alleged, the COVID-19 test results were not provided to the beneficiaries in a timely fashion or were not reliable, risking the further spread of the disease, and the genetic, allergy, and respiratory pathogen testing was medically unnecessary, and, in many cases, the results were not provided to the patients or their actual primary care doctors.
The proceeds of the fraudulent schemes were allegedly laundered through shell corporations and used to purchase exotic automobiles and luxury real estate.
The Fraud Section is prosecuting the cases in the following districts: Western District of Arkansas, Northern District of California, Middle District of Louisiana, Central District of California, Southern District of Florida, District of New Jersey, and the Eastern District of New York.
Northern District of California
Mark Schena, 58, of Los Altos, California, the president of Arrayit Corporation, is charged along with two others, the Arrayit Vice President of Marketing and the President of an Arizona marketing organization, in connection with the submission of over $70 million in false and fraudulent claims for allergy and COVID-19 testing. The superseding indictment against Schena includes new counts of health care fraud, a conspiracy to pay kickbacks, and payment of kickbacks in connection with false and fraudulent statements about the existence, regulatory status, and accuracy of an Arrayit COVID-19 test. The conspiracy allegedly sought to induce the ordering of the Arrayit COVID-19 test and to bundle, i.e., require combination with, the COVID-19 test and Arrayit’s medically unnecessary allergy test. The COVID-19 test results were not provided in a timely fashion and were not reliable in detecting COVID-19.
Central District of California
Petros Hannesyan, 36, of Burbank, California, was charged with the theft of government property and wire fraud in connection with $229,454 that he obtained from COVID-19 relief programs. Hannesyan, the owner of Hollywood Home Health Services, Inc., a home health agency located in Los Angeles, allegedly misappropriated funds from the CARES Act Provider Relief Fund and submitted false loan applications and a false loan agreement to the Economic Injury Disaster Loan Program, rather than use the funds for COVID-19 patient care and to support small businesses experiencing disruption due to the COVID-19 pandemic.
...
Many California agricultural workers have been exposed to a pesticide known as Roundup, and some of them may develop cancers. These cancer cases can then become continuous trauma claims under workers' compensation law.
Thousands of Roundup tort cases are pending in civil courts in several states. A favorable outcome will likely support subrogation in the decades ahead for these claims.
Monsanto Company manufactures Roundup, a pesticide with the active ingredient glyphosate. Bayer AG acquired the agrochemical company in a multibillion-dollar merger in 2018.
Bayer to date has lost several U.S. jury trials in the Roundup litigation, with juries in California awarding multi-million dollar awards. In a recent California case, the jury returned a verdict in favor of plaintiff Edwin Hardeman, awarding him $5,267,634.10 in compensatory damages and $75 million in punitive damages. The district court reduced the jury’s punitive damages award to $20 million. This May, the Ninth Circuit Court of Appeals affirmed the a district court result in the published case of Edwin Hardeman v Monsanto Company.
These bellwether cases led up to attorneys for certain individual plaintiffs in the Multi District Litigation pending in Northern California, negotiating a class action settlement with Monsanto that would cover potential future lawsuits. Last February, Bayer announced it had reached a $2 billion settlement resolving outstanding and future legal issues). The proposed compensation would only have been considered for those who develop non-Hodgkins lymphoma within four years of settlement.
Attorneys representing cancer victims objected to the proposed settlement earlier this month and, ultimately, Judge Vince Chhabria agreed with them. In his newly issued opinion, Chhabria said Bayer's proposed settlement was "clearly unreasonable" with "glaring flaws" that "vastly overstated" the potential benefits to future cancer victims from Roundup, particularly those who have not yet been diagnosed.
Judge Chhabria added "This is not a situation where the defendant is at risk of going bankrupt, such that only the first set of plaintiffs will be able to recover. Bayer (which recently acquired Monsanto) is a massive, wealthy company, and it continues to make money specifically from Roundup sales."
"Nor is there any indication that the company will cease its efforts to settle cases. As recently as last week, Bayer stated publicly that it remains committed to settling Monsanto’s Roundup litigation. This is not surprising because the alternative to settling - continuing to lose trials left and right - is not attractive."
In 2019, Chhabria oversaw the first federal trial on Edwin Hardeman's claims that Monsanto sold Roundup without a warning label, after which a jury awarded Hardeman $75 million in punitive damages after finding years of Roundup use likely caused his non-Hodgkin lymphoma ...
Thousands of Roundup tort cases are pending in civil courts in several states. A favorable outcome will likely support subrogation in the decades ahead for these claims.
Monsanto Company manufactures Roundup, a pesticide with the active ingredient glyphosate. Bayer AG acquired the agrochemical company in a multibillion-dollar merger in 2018.
Bayer to date has lost several U.S. jury trials in the Roundup litigation, with juries in California awarding multi-million dollar awards. In a recent California case, the jury returned a verdict in favor of plaintiff Edwin Hardeman, awarding him $5,267,634.10 in compensatory damages and $75 million in punitive damages. The district court reduced the jury’s punitive damages award to $20 million. This May, the Ninth Circuit Court of Appeals affirmed the a district court result in the published case of Edwin Hardeman v Monsanto Company.
These bellwether cases led up to attorneys for certain individual plaintiffs in the Multi District Litigation pending in Northern California, negotiating a class action settlement with Monsanto that would cover potential future lawsuits. Last February, Bayer announced it had reached a $2 billion settlement resolving outstanding and future legal issues). The proposed compensation would only have been considered for those who develop non-Hodgkins lymphoma within four years of settlement.
Attorneys representing cancer victims objected to the proposed settlement earlier this month and, ultimately, Judge Vince Chhabria agreed with them. In his newly issued opinion, Chhabria said Bayer's proposed settlement was "clearly unreasonable" with "glaring flaws" that "vastly overstated" the potential benefits to future cancer victims from Roundup, particularly those who have not yet been diagnosed.
Judge Chhabria added "This is not a situation where the defendant is at risk of going bankrupt, such that only the first set of plaintiffs will be able to recover. Bayer (which recently acquired Monsanto) is a massive, wealthy company, and it continues to make money specifically from Roundup sales."
"Nor is there any indication that the company will cease its efforts to settle cases. As recently as last week, Bayer stated publicly that it remains committed to settling Monsanto’s Roundup litigation. This is not surprising because the alternative to settling - continuing to lose trials left and right - is not attractive."
In 2019, Chhabria oversaw the first federal trial on Edwin Hardeman's claims that Monsanto sold Roundup without a warning label, after which a jury awarded Hardeman $75 million in punitive damages after finding years of Roundup use likely caused his non-Hodgkin lymphoma ...
Abraham Alex was employed as a security officer/guard by All Nation Security Services, Inc.
On August 24, 2017 a homeless person came inside the lobby of the Greyhound bus station where he was working. The homeless person was dancing and speaking badly in the lobby. An employee asked Applicant to escort the homeless person outside. Applicant asked whether the homeless person had a ticket and asked him to leave. The homeless person did not leave and cursed at Applicant and hit Applicant in the left temple with a fist. Applicant fell outside the lobby and the homeless person ran off.
He suffered a traumatic brain injury with evidence of intracranial hemorrhage for which he underwent surgery and continues to have symptoms associated with concussion. He filed a workers' compensation claim for his injuries.
Company rules state that the security officer is expected to manage aggressive behavior or disturbed persons but refrain from chasing, restraining, and subduing individuals. The employee manual it provides that the security offices are "expected to challenge persons in a professional manner to enforce access to restricted areas" but are not to put themselves in danger. It further instructs officers to diffuse incidents verbally or call the proper authorities and refrain from touching, tackling, chasing, assaulting or grabbing anyone.
The employer denied the injury claiming it was outside the scope of his employment. However the WCJ concluded that "the record shows Applicant was performing his job as a security guard in furtherance of the Greyhound business when he was injured. This is true even if the injury was caused by an impact with the ground outside the station or if Applicant violated a policy in the process. Applicant is entitled to workers’ compensation benefits."
Reconsideration was denied in the panel decision of Abraham Alex v All Nation Security Services Inc.
In Westbrooks v. Workers’ Comp. Appeals Bd. and Greyhound Lines (1988) 203 Cal.App.3d 249 [53 Cal.Comp.Cases 157], the Court of Appeals stated: Employee misconduct, whether negligent, willful, or even criminal, does not necessarily preclude recovery under workers’ compensation law. In the absence of an applicable statutory defense, such misconduct will bar recovery only when it constitutes a deviation from the scope of employment.
In determining whether particular misconduct takes an employee outside the scope of his employment, "A distinction must be made between an unauthorized departure from the course of employment and the performance of a duty in an unauthorized manner. Injury occurring during the course of the former conduct is not compensable. The latter conduct, while it may constitute serious and willful misconduct by the employee (Lab. Code, § 4551), does not take the employee outside the course of his employment."
If the employment places an applicant in a location and he or she was doing an activity reasonably attributable to employment or incidental thereto, an applicant will be in the course of employment and the injury may be industrially related. (Western Greyhound Lines v. Ind. Acc. Com. (Brooks) (1964) 225 Cal.App.2d 517 [29 Cal.Comp.Cases 43].) ...
On August 24, 2017 a homeless person came inside the lobby of the Greyhound bus station where he was working. The homeless person was dancing and speaking badly in the lobby. An employee asked Applicant to escort the homeless person outside. Applicant asked whether the homeless person had a ticket and asked him to leave. The homeless person did not leave and cursed at Applicant and hit Applicant in the left temple with a fist. Applicant fell outside the lobby and the homeless person ran off.
He suffered a traumatic brain injury with evidence of intracranial hemorrhage for which he underwent surgery and continues to have symptoms associated with concussion. He filed a workers' compensation claim for his injuries.
Company rules state that the security officer is expected to manage aggressive behavior or disturbed persons but refrain from chasing, restraining, and subduing individuals. The employee manual it provides that the security offices are "expected to challenge persons in a professional manner to enforce access to restricted areas" but are not to put themselves in danger. It further instructs officers to diffuse incidents verbally or call the proper authorities and refrain from touching, tackling, chasing, assaulting or grabbing anyone.
The employer denied the injury claiming it was outside the scope of his employment. However the WCJ concluded that "the record shows Applicant was performing his job as a security guard in furtherance of the Greyhound business when he was injured. This is true even if the injury was caused by an impact with the ground outside the station or if Applicant violated a policy in the process. Applicant is entitled to workers’ compensation benefits."
Reconsideration was denied in the panel decision of Abraham Alex v All Nation Security Services Inc.
In Westbrooks v. Workers’ Comp. Appeals Bd. and Greyhound Lines (1988) 203 Cal.App.3d 249 [53 Cal.Comp.Cases 157], the Court of Appeals stated: Employee misconduct, whether negligent, willful, or even criminal, does not necessarily preclude recovery under workers’ compensation law. In the absence of an applicable statutory defense, such misconduct will bar recovery only when it constitutes a deviation from the scope of employment.
In determining whether particular misconduct takes an employee outside the scope of his employment, "A distinction must be made between an unauthorized departure from the course of employment and the performance of a duty in an unauthorized manner. Injury occurring during the course of the former conduct is not compensable. The latter conduct, while it may constitute serious and willful misconduct by the employee (Lab. Code, § 4551), does not take the employee outside the course of his employment."
If the employment places an applicant in a location and he or she was doing an activity reasonably attributable to employment or incidental thereto, an applicant will be in the course of employment and the injury may be industrially related. (Western Greyhound Lines v. Ind. Acc. Com. (Brooks) (1964) 225 Cal.App.2d 517 [29 Cal.Comp.Cases 43].) ...
Shauna Van Brunt sustained an admitted injury to the lumbar spine and left lower leg while working for VCA Antech Inc., a large network of veterinary hospitals and clinical laboratories.
Her PTP submitted multiple requests for authorization, each for a quantity of 450 Buprenorphine pills. The requests for authorization were submitted for utilization review, which certified progressively reduced quantities of the Buprenorphine between July 15, 2020 and October 22, 2020, eventually denying certification of Buprenorphine in UR determinations dated November 16, 2020 and November 24, 2020.
Independent Medical Review was requested for the UR decisions dated September 22, 2020 and October 22, 2020. The former certified 360 Buprenorphine pills, and the latter certified 325 pills. Both were upheld in IMR determinations dated November 16, 2020 and November 24, 2020. There was no appeal of the IMR determinations.
The parties appeared at an Expedited Hearing on December 18, 2020. The issues were whether it was appropriate for defendant, through UR, to wean the applicant off a medication on which she is dependent, and whether there was jurisdiction for the Appeals Board to address this dispute.
The WCJ found that the Appeals Board lacks jurisdiction to review the UR decisions and the IMR decisions. Applicant sought reconsideration or in the alternative removal of the Findings of Fact. The WCAB denied both in the panel decision of Shauna Van Brunt v. VCA Antech, Inc., 2021 Cal. Wrk. Comp. P.D. LEXIS 114.
The Appeals Board has jurisdiction to determine whether a UR decision is timely. (Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298, 1299 (Appeals Board en banc) (Dubon II).)
However, "where a UR decision is timely, IMR is the sole vehicle for reviewing the UR physician’s expert opinion regarding the medical necessity of a proposed treatment." (Id. at pp. 1310-1311; see also Lab. Code, §§ 4062(b), 4610.5; King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1048 [83 Cal.Comp.Cases 1523] [IMR "is the exclusive mechanism for review of a utilization review decision"].)
Additionally, applicant did not demonstrate in what way defendant’s actions constitute bad faith.
With respect to her arguments that more than one UR reviewer was not authorized by regulations, "the statute does not state that all utilization review pertaining to a single patient or extended course of treatment must be conducted by the same reviewer."
With respect to applicant’s contention that she had been taking Buprenorphine for years and there was no change in circumstances when additional requests for this medication were made, the Appeals Board has previously found that recurring prescriptions are not the sort of ongoing care that cannot be unilaterally terminated. (See Mumm v. Workers’ Comp. Appeals Bd. (2020) 85 Cal.Comp.Cases 647 (writ den.)
Authorization of one prescription does not automatically mean that recurring prescriptions of that medication must be authorized indefinitely; the treating physician has an obligation to document the need for each recurring prescription, especially when the prescriptions are for heavily regulated opioid medications ...
Her PTP submitted multiple requests for authorization, each for a quantity of 450 Buprenorphine pills. The requests for authorization were submitted for utilization review, which certified progressively reduced quantities of the Buprenorphine between July 15, 2020 and October 22, 2020, eventually denying certification of Buprenorphine in UR determinations dated November 16, 2020 and November 24, 2020.
Independent Medical Review was requested for the UR decisions dated September 22, 2020 and October 22, 2020. The former certified 360 Buprenorphine pills, and the latter certified 325 pills. Both were upheld in IMR determinations dated November 16, 2020 and November 24, 2020. There was no appeal of the IMR determinations.
The parties appeared at an Expedited Hearing on December 18, 2020. The issues were whether it was appropriate for defendant, through UR, to wean the applicant off a medication on which she is dependent, and whether there was jurisdiction for the Appeals Board to address this dispute.
The WCJ found that the Appeals Board lacks jurisdiction to review the UR decisions and the IMR decisions. Applicant sought reconsideration or in the alternative removal of the Findings of Fact. The WCAB denied both in the panel decision of Shauna Van Brunt v. VCA Antech, Inc., 2021 Cal. Wrk. Comp. P.D. LEXIS 114.
The Appeals Board has jurisdiction to determine whether a UR decision is timely. (Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298, 1299 (Appeals Board en banc) (Dubon II).)
However, "where a UR decision is timely, IMR is the sole vehicle for reviewing the UR physician’s expert opinion regarding the medical necessity of a proposed treatment." (Id. at pp. 1310-1311; see also Lab. Code, §§ 4062(b), 4610.5; King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1048 [83 Cal.Comp.Cases 1523] [IMR "is the exclusive mechanism for review of a utilization review decision"].)
Additionally, applicant did not demonstrate in what way defendant’s actions constitute bad faith.
With respect to her arguments that more than one UR reviewer was not authorized by regulations, "the statute does not state that all utilization review pertaining to a single patient or extended course of treatment must be conducted by the same reviewer."
With respect to applicant’s contention that she had been taking Buprenorphine for years and there was no change in circumstances when additional requests for this medication were made, the Appeals Board has previously found that recurring prescriptions are not the sort of ongoing care that cannot be unilaterally terminated. (See Mumm v. Workers’ Comp. Appeals Bd. (2020) 85 Cal.Comp.Cases 647 (writ den.)
Authorization of one prescription does not automatically mean that recurring prescriptions of that medication must be authorized indefinitely; the treating physician has an obligation to document the need for each recurring prescription, especially when the prescriptions are for heavily regulated opioid medications ...
The Fisher Phillips COVID-19 Employment Litigation Tracker And Insights depicts a continued string of COVID related litigation being filed nationwide, and California leads the nation in cases filed.
This COVID-19 Employment Litigation Tracker includes cases that were a direct result of the COVID-19 pandemic and are traditional employee vs. employer cases - both individual plaintiff and class actions. This should be considered a comprehensive, but not exhaustive, dataset.
As of today, the firm reports 2,408 cases filed nationwide. California has 548 of them, with New Jersey (311), Florida (176), Ohio (165) and New York (158) in the list of the top five states by case count. Two new cases were filed in California in the last seven days.
The top five reasons for litigation shows 185 of the 548 California cases are for employment discrimination, 153 for retaliation/whistleblower, 121 for remote work/leave conflicts, 53 for wage our problems, 37 for unsafe workplace and 12 for wrongful discharge.
By industry, in California 19.7% of cases are in healthcare, 11% in retail, 9.2% in hospitality, 7% in manufacturing and in fifth place 6.7% in professional and technical services.
The analysis by the Firm claims "many employers across the country find themselves swimming in costly and prolonged litigation fallout arising from legal claims alleging they failed to accommodate workers impacted by the virus."
"The healthcare industry is distinctive target for such claims given the unique danger the work environment presents to employees; e.g., the heightened likelihood of even minimal exposure to infected patients and/or contaminated areas. As the numbers of infected patients decrease, we are seeing an increase in lawsuits alleging that healthcare employers failed to accommodate disabled employees more susceptible to fatal COVID-19 transmission."
"This trend presents a somber reminder for healthcare employers: even when inundated in a global state of emergency, there remains the duty to dedicate time and prudent consideration to the interactive process when initiated by an employee with a medical disability."
"From the Golden State to the coastal city of New Haven, Connecticut, healthcare facilities are fighting disability discrimination claims for the alleged failure to accommodate employees with respiratory conditions, including asthma and cancer, which increase susceptibility to calamitous complications from COVID-19 transmission."
"For example, at Yale New Haven Hospital, an "administrative associate" at the Hospital’s blood bank was allegedly denied continued work-from-home (WFH) status despite having successfully worked remotely during the national shutdown. When the Hospital required all employees to return to work sites in May 2020, it allegedly denied a reasonable accommodation request by an associate who has cancer (making virus infection much more dangerous)."
"In a very similar fact pattern on the other side of the country in California’s capitol, Western Health Advantage allegedly denied WFH status to a data analyst stricken with asthma, despite the claim that it allowed similarly situated employees (e.g. other data analysts) without disabilities to work remotely."
"And back on the east coast in New Jersey, a home healthcare company allegedly denied an occupational therapist also suffering from asthma an exemption from treating COVID-19 infected patients." ...
This COVID-19 Employment Litigation Tracker includes cases that were a direct result of the COVID-19 pandemic and are traditional employee vs. employer cases - both individual plaintiff and class actions. This should be considered a comprehensive, but not exhaustive, dataset.
As of today, the firm reports 2,408 cases filed nationwide. California has 548 of them, with New Jersey (311), Florida (176), Ohio (165) and New York (158) in the list of the top five states by case count. Two new cases were filed in California in the last seven days.
The top five reasons for litigation shows 185 of the 548 California cases are for employment discrimination, 153 for retaliation/whistleblower, 121 for remote work/leave conflicts, 53 for wage our problems, 37 for unsafe workplace and 12 for wrongful discharge.
By industry, in California 19.7% of cases are in healthcare, 11% in retail, 9.2% in hospitality, 7% in manufacturing and in fifth place 6.7% in professional and technical services.
The analysis by the Firm claims "many employers across the country find themselves swimming in costly and prolonged litigation fallout arising from legal claims alleging they failed to accommodate workers impacted by the virus."
"The healthcare industry is distinctive target for such claims given the unique danger the work environment presents to employees; e.g., the heightened likelihood of even minimal exposure to infected patients and/or contaminated areas. As the numbers of infected patients decrease, we are seeing an increase in lawsuits alleging that healthcare employers failed to accommodate disabled employees more susceptible to fatal COVID-19 transmission."
"This trend presents a somber reminder for healthcare employers: even when inundated in a global state of emergency, there remains the duty to dedicate time and prudent consideration to the interactive process when initiated by an employee with a medical disability."
"From the Golden State to the coastal city of New Haven, Connecticut, healthcare facilities are fighting disability discrimination claims for the alleged failure to accommodate employees with respiratory conditions, including asthma and cancer, which increase susceptibility to calamitous complications from COVID-19 transmission."
"For example, at Yale New Haven Hospital, an "administrative associate" at the Hospital’s blood bank was allegedly denied continued work-from-home (WFH) status despite having successfully worked remotely during the national shutdown. When the Hospital required all employees to return to work sites in May 2020, it allegedly denied a reasonable accommodation request by an associate who has cancer (making virus infection much more dangerous)."
"In a very similar fact pattern on the other side of the country in California’s capitol, Western Health Advantage allegedly denied WFH status to a data analyst stricken with asthma, despite the claim that it allowed similarly situated employees (e.g. other data analysts) without disabilities to work remotely."
"And back on the east coast in New Jersey, a home healthcare company allegedly denied an occupational therapist also suffering from asthma an exemption from treating COVID-19 infected patients." ...
