Dina Barron-Ramirez and her husband, Jaime Ramirez, contracted with AT&T to have a home security system installed in their residence.

Jamey Maddas, an electrician employed by Endeavor Telecom, an AT&T subcontractor, was dispatched to the Ramirez home to complete the installation.

During the installation work, as he was descending the stairs from the second to the first floor, when he fell and fractured his leg. After falling, Maddas saw the carpet runner had separated at a seam and detached from some of the stairs. He was not sure what caused his fall, however, he assumed it was due to the carpet runner.

As there was no dispute that Maddas was injured in the course and scope of his employment with Endeavor, he recovered worker’s compensation benefits for his medical expenses and wage loss.

Two years later, after settling his worker’s compensation case, he sued Homeowners claiming the accident was caused by a loose carpet runner, which made the staircase unreasonably dangerous. His form complaint alleges a cause of action for premises liability based on "loose carpet on the stairway."

The homeowners moved for nonsuit at the end of Maddas’s case-in-chief on the grounds there was no substantial evidence to support a finding that they knew or should have known of a concealed preexisting hazardous condition on the stairs. The trial court granted the motion, and the Court of Appeal affirmed the dismissal in the unpublished case of Maddas v. Ramirez.

The Privette rule (Privette v. Superior Court (1993) 5 Cal.4th 689) holds that as a general rule, the hirer of an independent contractor is not liable for on-the-job injuries to the independent contractor’s employees.

One of Privette’s underpinnings is the availability of workers’ compensation benefits to the injured employee. " '[I]t would be unfair to impose liability on the hiring person when the liability of the contractor, the one primarily responsible for the worker’s on-the-job injuries, is limited to providing worker’s compensation coverage.' "

Thus, "principally because of the availability of workers’ compensation," a "useful way" to view these cases "is in terms of delegation." (Id. at p. 671.) The hirer delegates to the independent contractor the duty to provide the contractor’s employees with a safe working environment. (Ibid.)

The evidence was undisputed that Homeowners were not carpet experts and had never installed carpet themselves. They hired a professional carpet installer to do so in 2004 as part of the carpet’s purchase price. After installation, the carpet covering each stair tread lay perfectly flat and did not move ...

National Emphasis Programs (NEPs) are temporary programs that focus OSHA's resources on particular hazards and high-hazard industries.

Existing and potential new emphasis programs are evaluated using inspection data, injury and illness data, National Institute for Occupational Safety and Health (NIOSH) reports, peer-reviewed literature, analysis of inspection findings, and other available information sources.

On March 12, 2021, OSHA announced policies and procedures for implementing a National Emphasis Program to ensure that employees in high-hazard industries or work tasks are protected from the hazard of contracting COVID-19.

The newest NEP augments OSHA’s efforts addressing unprogrammed COVID-19-related activities, e.g., complaints, referrals, and severe incident reports, by adding a component to target specific high-hazard industries or activities where this hazard is prevalent.

The NEP targets establishments that have workers with increased potential exposure to this hazard, and that puts the largest number of workers at serious risk.

In addition, this NEP includes an added focus to ensure that workers are protected from retaliation, and are accomplishing this by preventing retaliation where possible, distributing anti-retaliation information during inspections, and outreach opportunities, as well as promptly referring allegations of retaliation to the Whistleblower Protection Program.

Also on March 12, 2021, OSHA issued an "Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19)" (ERP).

The ERP "provides new instructions and guidance to Area Offices and Compliance Safety and Health Officers (CSHOs) for handling COVID-19 related complaints, referrals, and severe illness reports." It summarizes the NEP and details how CSHOs are to conduct inspections, and it makes on-site inspections the default method, with remote-only inspections to be conducted only with approval of the area director for CSHO safety reasons ...

The California Attorney General joined a coalition of District and City Attorneys, led by Kern County District Attorney Cynthia Zimmer, in filing a lawsuit against Tennessee-based Brookdale Senior Living, Inc., the nation’s largest senior living operator.

The company has over 70,000 staff members and 100,000 residents spread across 800 facilities in 45 states.

The lawsuit, which concerns Brookdale’s ten California skilled nursing facilities, alleges that Brookdale ignored laws that protect patients' safety when they are discharged from a facility. Senior care centers are paid substantially more by Medicare than by other sources such as Medi-Cal, leading facilities to covet those residents. California accuses Brookdale of pushing out others to make way for the highest bidder - regardless of care and treatment needs - while ignoring patients’ legal protections.

The lawsuit also alleges that Brookdale gave false information to the Centers for Medicare & Medicaid, information which CMS uses to award "star ratings" to skilled nursing facilities so that consumers can choose a quality facility.

By lying to CMS, Brookdale allegedly fraudulently increased its star rating in several categories to attract prospective patients and their families.

The lawsuit also alleges that Brookdale failed to properly notify its patients and families of transfers and discharges. Skilled nursing facilities are required to give notice of transfer or discharge at least 30 days in advance, or as soon as practicable.

Brookdale allegedly failed to timely provide this required notice to its patients, with a copy to the local ombudsmen. Brookdale also allegedly failed to properly prepare its patients for transfer or discharge. As a result of these actions, Brookdale endangered the health of its patients and also left families scrambling to find other places to care for their loved ones.

The lawsuit also alleges that Brookdale misrepresented the quality of its care to the public by reporting false information to CMS. As a means of helping the public to choose a skilled nursing facility, CMS rates facilities on several quality measures on a scale of one to five stars, which are then posted to the CMS website.

The lawsuit alleges that Brookdale over-reported its nursing staffing hours to CMS, and by doing so, Brookdale was awarded undeserved four-and five-star ratings. In the lawsuit, the coalition argues that by engaging in these unfair business practices, Brookdale violated both the Unfair Competition Law and False Advertising Law.

The Attorney General joins the district attorneys of Kern, Alameda, San Diego, and Santa Cruz Counties, as well as the Los Angeles City Attorney.

A Brookdale spokesperson denied the allegations and noted the Golden State has either filed or threatened to file similar actions against other senior facilities.
...

NCCI is tracking legislation to establish or extend workers compensation presumptions for COVID-19 for certain workers.

In 2020, nine states enacted COVID-19 presumption legislation (Alaska, California, Illinois, Minnesota, New Jersey, Utah, Vermont, Wisconsin, and Wyoming.) Many of the COVID-19 workers compensation presumptions are temporary in nature.

This year several of the states that enacted COVID-19 presumption legislation in 2020 are taking additional action to extend and/or expand those presumptions. For example:

- - Vermont enacted legislation (S 9) extending the workers compensation COVID-19 presumption provisions for an employee receiving a positive diagnosis or test between April 2020 and "30 days following the termination of the state of emergency."
- - Illinois recently enacted legislation (HB 4276) extending the COVID-19 presumption provisions through June 30, 2021
- - Alaska, Minnesota, and Wisconsin are considering legislation to extend their presumptions, expand the types of workers covered under their presumptions, and/or apply their presumptions retroactively

In 2021, additional states, including Connecticut, Iowa, Maryland, Massachusetts, Montana, Nebraska, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, Texas, and Virginia, are considering establishing new workers compensation presumptions for COVID-19 for certain workers.

And new trends are emerging. While many of the bills monitored in 2020 focused on establishing presumptions that were applicable primarily to first responders and/or healthcare workers, several of the current legislative proposals establish presumptions for additional categories of workers. For example:

- - Legislation in Maryland, Minnesota, and Texas would establish presumptions for teachers/school employees
- - Legislation in Montana and Texas would establish presumptions for nurses (as a separate category from healthcare workers)
- - Legislation in Connecticut and Iowa would establish presumptions applicable to all employees in the state In 2021, several states have proposed legislation to create workers compensation presumptions of compensability that could be applicable beyond the current COVID-19 pandemic.
- - To date, at least 12 states (Alaska, California, Connecticut, Florida, Iowa, Michigan, Missouri, New Mexico, New York, Rhode Island, Texas, and Washington) have introduced legislation that would establish workers compensation presumptions for infectious diseases and pandemics.
- - While several of these bills specifically mention COVID-19, these proposals also contain terms such as "contagious disease," "COVID-19 or similar disease," or "other future qualifying pandemic." This could mean that the presumption would still be applicable even after the current COVID-19 pandemic ends.
- - Many of these proposals do not include sunset provisions or expiration dates, so they may not be temporary in nature.

Some states have introduced legislation addressing the impact of COVID-19 on the workers compensation exclusive remedy:

- - Hawaii introduced legislation (HB 1224/SB 1415) that proposed an exception to the workers compensation exclusive remedy when an employee, whose employer failed to maintain adequate workplace protections against exposure to COVID-19, contracts the virus
- - The Hawaii legislation also created a presumption that COVID-19 is proximately caused by an employer’s failure to maintain adequate workplace protections. (The Hawaii bills did not make a procedural legislative deadline and are unlikely to advance this legislative session.)
- - Other states, including Arkansas and West Virginia, have also introduced legislation addressing COVID-19 and the exclusive remedy, providing that workers compensation is the exclusive remedy for COVID-19 claims ...

Veronica Catalina Cortes-Ambrosio, 53, of Madera, was charged on two felony counts of insurance fraud after allegedly lying about physical limitations from an injury at work, in an attempt to receive undeserved workers’ compensation benefits.

An investigation by the Department of Insurance revealed on May 6, 2017, Cortes-Ambrosio was working for a farm labor company when she was struck with a gardening tool by a co-worker resulting in injuries to her right shoulder, neck, and back.

She was evaluated and received initial treatment for the alleged injuries, but the workers’ compensation claim she filed was denied.

Cortes-Ambrosio continued to seek medical care and obtained legal counsel to pursue the claim. She claimed to experience severe and nearly constant pain related to the injury and was unable to perform everyday activities such as sitting, standing, walking, reaching, and lifting. Cortes-Ambrosio’s employer offered her modified duties due to her stated limitations, but she refused and did not return to work.

Video surveillance was obtained of Cortes-Ambrosio during the time she claimed physical limitations due to the injury. The video showed her cleaning in and around her home, doing yardwork, ascending and descending stairs, reaching overhead, and lifting - all tasks she claimed she could not perform and prevented her from returning to work.

Cortes-Ambrosio’s alleged fraudulent claims of ongoing pain and an inability to perform basic work functions, led to her employer’s insurance company paying approximately $48,140 in unnecessary medical, investigative, and legal costs.

Cortes-Ambrosio is scheduled to be arraigned on May 26, 2021. This case is being prosecuted by the Fresno County District Attorney’s Office ...

A Hawthorne man was sentenced to 212 years in federal prison for intentionally driving his ex-wife and two disabled sons off a wharf at the Port of Los Angeles into the ocean - drowning the boys who were trapped in the car - to collect on accidental death insurance policies he had taken out on their lives.

Ali F. Elmezayen, 45, was sentenced by United States District Judge John F. Walter, who, in imposing the maximum sentence allowed by law, noted Elmezayen’s "evil and diabolical scheme" as well as the "vicious and callous nature of his crimes."

"He is the ultimate phony and a skillful liar - and is nothing more than a greedy and brutal killer," Judge Walter said. "The only regret that the defendant has is that he got caught."

Judge Walter also ordered Elmezayen to pay $261,751 in restitution to the insurance companies that he defrauded.

After a nine-day trial in October 2019, a federal jury found Elmezayen guilty of four counts of mail fraud, four counts of wire fraud, one count of aggravated identity theft, and five counts of money laundering.

Elmezayen obtained more than $3 million of life and accidental death insurance policies on himself and his family bought from eight different insurance companies . He paid premiums in excess of $6,000 per year for these policies - even though he reported income of less than $30,000 per year on his tax returns. Elmezayen began purchasing the insurance policies the same year he exited a Chapter 11 bankruptcy proceeding.

After purchasing the policies, Elmezayen repeatedly called the insurance companies - sometimes pretending to be his ex-wife in whose name he had obtained some of the policies - to verify that the policies were active and that they would pay benefits if his ex-wife died in an accident. Elmezayen also called at least two of the insurance companies to confirm they would not investigate claims made two years after the policies were purchased. These telephone calls were recorded and were played for the jury.

On April 9, 2015, 12 days after the two-year contestability period on the last of his insurance policies expired, Elmezayen drove a car with his ex-wife and two youngest children off a wharf at the Port of Los Angeles. The site of the crash was a loading dock and worksite for commercial fishermen.

Elmezayen swam out the open driver’s side window of the car. Elmezayen’s ex-wife, who did not know how to swim, escaped the vehicle and survived when a nearby fisherman threw her a flotation device. Two of the couple’s three sons, who were 8 and 13 and who were both severely autistic, were strapped into the car and drowned. The couple’s third son was away at camp at the time and was not in the car at the time his father drove it into the water.

Elmezayen then collected more than $260,000 in insurance proceeds from Mutual of Omaha Life Insurance and American General Life Insurance on the accidental death insurance policies he had taken out on the children’s lives. He used part of the insurance proceeds to purchase real estate in Egypt as well as a boat.

Following the crash, Elmezayen repeatedly lied to law enforcement officers and insurance companies. He also lied in subsequent civil litigation he filed concerning the crash - about the extent of the insurance he had purchased on his family, and specifically about whether he had insured his disabled children’s lives. He also attempted to persuade witnesses to lie to law enforcement and say he had given the insurance proceeds to charity.

He now also faces murder charges in a Los Angeles Superior Court ...

Daniel Clampitt, 41, of Denair, was arraigned on four felony counts including insurance fraud, grand theft and perjury for allegedly claiming to be too injured to work and simultaneously collecting $94,788 in workers’ compensation benefits while also working for another employer.

Clampitt injured his knee while on duty as a firefighter for the City of Hollister.

Due to his injury, Clampitt could not perform his firefighter duties and received wage loss benefits from June 2016 to June 2018.

Surveillance video was obtained in January 2017 of Clampitt working at another company while he was still collecting workers’ compensation benefits from the City of Hollister.

A Department of Insurance investigation further revealed that for nine months Clampitt continued to collect wage loss benefits while receiving a paycheck from a new employer. Clampitt did not report this employment and income to the City or the insurance company handling his claim.

During a deposition, Clampitt claimed he had worked as an independent contractor for the second employer before his injury and denied applying for employment after the date of his injury, but records from the second employer show that Clampitt started working for them in October 2016, four months after his June 2016 injury.

Clampitt was arraigned on February 2, 2021. The San Benito County District Attorney’s Office is prosecuting this case ...

Last November, the Department of Health and Human Services (HHS) extended compliance dates for a complex federal regulation aimed at ending information-blocking practices that impede the secure exchange and use of electronic health information by patients, doctors and health care organizations.

The HHS Office of the National Coordinator for Health Information Technology extended the final rule, implemented under the 21st Century Cures Act (Cures Act), extended the "applicability date" from November 2, 2020 to April 5, 2021. On and after that date, all "actors" - "which includes health information networks and exchanges, EHR vendors and health care providers - "will be subject to information blocking."

The compliance deadline delay comes in response to the AMA’s advocacy efforts. A Sept. 29, 2020 letter from the AMA, the American College of Physicians, the American Hospital Association and others told the ONC that "the COVID-19 pandemic continues to monopolize our members’ time and attention, and has strained resources, drastically limiting our members' ability to prepare" for the Nov. 2, 2020 deadline that had been in place.

In general, information blocking is a practice by a health IT developer of certified health IT, health information network, health information exchange, or health care provider that, except as required by law or specified by the Secretary of Health and Human Services (HHS) as a reasonable and necessary activity, is likely to interfere with access, exchange, or use of electronic health information (EHI).

Some general examples of Information Blocking include:

- Hospital policies or procedures that require personnel to obtain an individual’s written consent before sharing the individual’s EHI with unaffiliated providers for treatment purposes even if obtaining such consent is not required by state or federal law.
- Contractual arrangements that prevent sharing or limit how EHI is shared with patients, their healthcare providers, or other third parties.
- Patients or healthcare providers become "locked in" to a particular technology or healthcare network because their electronic health information is not portable.
- A healthcare provider has the capability to provide same-day access to EHI in a form and format requested by a patient or a patient’s healthcare provider, but takes several days to respond.

The American Psychological Association published examples that apply to psychologists:

- EHR systems that put or allow an automatic hold on certain psychological records/mental health progress notes while psychologists determine what EHI is appropriate to include in the system (e.g., minor proxies and multiple patients).
- EHR systems that allow psychologists to simply classify that EHI is "sensitive" (without further justification) to limit access within the system.
- Practices that restrict access more than is legally justified (e.g., restricting patient access more than permitted under the HIPAA Privacy Rule and state law).
- Limiting the interoperability of health IT (e.g., disabling a capability that would allow sharing EHI with patients).

Enforcement is by the Office of the Inspector General (OIG) of HHS. OIG would have to show that the provider had knowledge and intent to interfere with access. However, it would not have to show that the provider understood that they were violating the information blocking rules; therefore, ignorance of the rules would not be an excuse. Nor would OIG have to show that the information blocking caused actual damage. OIG has, however, indicated that it does not plan to take enforcement action regarding innocent mistakes.

In the final rule, HHS identified eight categories of reasonable and necessary activities that do not constitute information blocking, provided certain conditions are met ...

A new California Workers’ Compensation Institute study finds that nonsteroidal anti-inflammatories (NSAIDs) now account for more than a third of all drugs dispensed to injured workers in California, triple the proportion noted for opioids.

The study also reveals that although most NSAIDs that are used are inexpensive, and utilization has been flat since the state’s evidence-based prescription drug formulary took effect in 2018, NSAIDs’ share of the total drug spend has soared from 14.2% to 23.5%, largely driven by increased payments for two low-volume, high-priced drugs that are exempt from prospective utilization review (UR) and that lack price controls.

The CWCI analysis of changes in the distribution of California workers’ compensation prescriptions and prescription payments over the past decade uses data on 5.85 million prescriptions dispensed to injured workers, resulting in payments totaling $623 million.

The data show that opioids accounted for 11.6% of the prescriptions filled in the first half of 2020, down from 31.0% in 2011 - a relative decline of 62.6% during the study period.

NSAIDs, often used as non-opioid alternatives to treat pain, surpassed opioids as the number one drug group in 2015, and in both 2019 and the first half of 2020 they accounted for more than a third of all prescriptions dispensed to injured workers, twice the proportion noted a decade earlier.

Ranking behind opioids in terms of utilization are anticonvulsants, dermatologicals, and antidepressants, which round out the top 5 drug groups.

Musculoskeletal drugs (muscle relaxants), which were the third most heavily used workers’ comp drug group until the formulary took effect, saw their share of the prescriptions fall sharply beginning in 2018 as under the formulary they are subject to prospective UR, with the exception of special fill or perioperative uses, where the quantity of the drug that can be dispensed is limited.

Total payments for a drug group reflect several factors besides the volume of prescriptions, including allowable fees under the pharmacy fee schedule, average quantities and dosages, mode of delivery, and the availability of generics.

While opioids still rank second in workers’ comp prescription volume, the study found their share of the prescription payments fell from 30.7% in 2011 to 7.0% in the first half of 2020, so they now rank fourth in terms of total drug spend, behind NSAIDs (23.5%), dermatological drugs (14.1%), and anticonvulsants (13.1%).

CWCI has released its study in a Research Update report, "California Workers’ Compensation Prescription Drug Trends." ...

A combination of two Eli Lilly antibody drugs cut the risk of COVID-19-related hospitalizations and deaths by 87%, the company announced Wednesday, further upholding dosing already authorized by the Food and Drug Administration.

New data from the randomized, double-blind, placebo-controlled BLAZE-1 Phase 3 study, demonstrates that bamlanivimab 700 mg and etesevimab 1400 mg together significantly reduced COVID-19 related hospitalizations and deaths in high-risk patients recently diagnosed with COVID-19.

These results provide additional efficacy and safety data that support the use of the dose recently granted both Emergency Use Authorization by the U.S. Food and Drug Administration and a positive scientific opinion by the European Medicines Agency's Committee for Medicinal Products for Human Use.

This new Phase 3 cohort of BLAZE-1 included 769 high-risk patients, aged 12 and older with mild to moderate COVID-19. Bamlanivimab and etesevimab together also demonstrated statistically significant improvements on key secondary endpoints. These results are consistent with those seen in other data sets from BLAZE-1: in the previous Phase 3 cohort, bamlanivimab 2800 mg with etesevimab 2800 mg reduced the risk of hospitalizations and deaths by 70 percent and in the Phase 2 cohort, bamlanivimab alone reduced the risk of hospitalizations and ER visits by approximately 70 percent.

In this new Phase 3 cohort, there were four deaths total, all of which were deemed related to COVID-19 and all of which occurred in patients taking placebo; no deaths occurred in patients receiving treatment with bamlanivimab and etesevimab together.

"These positive results reinforce our previous findings and support the authorized dose of bamlanivimab 700 mg with etesevimab 1400 mg. These compelling data - in addition to the recent EUA from FDA, the decision from EMA and the recommendation for the therapy in the National Institutes of Health's COVID-19 Treatment Guidelines - give healthcare providers additional information regarding the use of bamlanivimab and etesevimab together as a potentially life-saving treatment to help those most at risk for severe complications of COVID-19," said Daniel Skovronsky, M.D., Ph.D., Lilly's chief scientific officer and president of Lilly Research Laboratories.

"The consistent results observed in multiple cohorts of this trial over several months, even as new strains of COVID-19 have emerged, indicate bamlanivimab with etesevimab maintains its effects against a range of variants, particularly those circulating in the U.S."

Lilly continues to engage with global regulators to make bamlanivimab alone and bamlanivimab and etesevimab together available around the world.

Bamlanivimab alone and bamlanivimab with etesevimab together are authorized under special/emergency pathways, in the context of the pandemic, in the U.S. and the European Union. In addition, bamlanivimab alone is authorized for emergency use in Canada, Panama, Kuwait, the UAE, Israel, Rwanda, Morocco and numerous other countries.

Through Lilly's work with the Bill & Melinda Gates Foundation, Lilly is providing doses of bamlanivimab free of charge in Rwanda and Morocco ...

In 2013, Ndiawar Diop, while working a licensed vocational nurse at the California Institution for Men in Chino, provided insulin to inmate George Philpott. After Philpott injected himself, he returned the needle through an opening in a window. Diop then placed the used needle into a container used for disposing of needles.

Philpott observed Diop put his hand into the container and get poked. Philpott called for a correctional officer to avoid getting in trouble. Upon seeing Diop prick himself, Philpott exclaimed, ‘I have Hep C.’ Philpott admitted that he did not like Diop, but claimed that he never attacked, injured,or threatened him.

Diop was treated for the needle stick, and completed an intake form at U.S. Healthworks stating that after and inmate injection he got poked by his needle on his right index finger while taking the needle back from him 2 hours ago.

Seven months later, Diop was evaluated and treated by mental health professionals. At this point the history morphed into an attack by the prisoner. Then later during a permanent and stationary evaluation the story morphed even more to a claim that he was "attacked by this inmate with a syringe" and for the first time, he claimed the inmate tried to stab him in the neck.

The change from an accidental to an intentional mechanism of injury affected the claim’s monetary value because, beginning in 2013, a claimant could not receive permanent disability for a stress-related claim unless it was the result of a "violent act" and stress was originally claimed as an injury.

A jury convicted him of five counts of insurance fraud and one count of attempted perjury in connection with his workers’ compensation claim. The Court of Appeal affirmed in the unpublished case of People v. Diop.

Diop contended on appeal that: (1) the evidence fails to support his convictions; (2) the trial court made many evidentiary errors; (3) the court erred in failing to unseal juror identification information; (4) the court erred in failing to instruct on the defense of mistake of fact; and (5) the court erred by denying his motion for new trial.

The Court of Appeal reviewed, and then rejected each one of these arguments. It then concluded the "evidence demonstrates that defendant’s account of how he was injured by an inmate’s dirty needle changed from accidental to intentional. From this evidence, it was reasonable for the jury to conclude that defendant knowingly made a false material statement for the purpose of obtaining greater workers’ compensation benefits." ...

The Labor Commissioner’s Office has cited Green Messengers Inc. and Amazon.com Services LLC $6.4 million for wage theft violations affecting 718 workers. The Santa Ana-based contractor delivered packages for Amazon.com Services in Los Angeles, Orange and San Bernardino counties.

The Labor Commissioner’s Office opened an investigation in June 2019 after receiving a report of labor law violations indicating Green Messenger workers were experiencing wage theft because they were not paid properly and did not receive correct pay statements.

Green Messengers provided delivery services for Amazon.com.

The investigation found that from April 2018 to January 2020, delivery drivers were scheduled to work 10-hour workdays and required to finish an Amazon delivery route in those 10 hours using Green Messenger or Amazon vehicles.

Due to the number of deliveries, drivers often had to work through their meal and rest breaks, and were not paid properly for the extra time when they had to work 11 or more hours to complete the route. This resulted in frequent minimum wage, overtime, meal break, rest period and split-shift violations.

The citations total $6,454,110, with $5,304,768 owed to the 718 workers. The amount payable to workers includes $3,377,988 in liquidated damages and waiting time penalties, $762,850 in penalty assessments for not providing proper wage statements, $882,735 for split-shift, meal and rest break premiums, and $281,195 for minimum wage, overtime and contract wages.

Green Messengers and Amazon.com Services are responsible for the amounts due to workers according to California’s client-employer liability law, in effect since 2015. The law holds client-employers that obtain labor from a subcontractor liable for their workplace violations.

The citations issued to Green Messengers Inc. include $1,149,342 in civil penalties payable to the state.

The companies have appealed the citations. Under the appeal procedure, the Labor Commissioner’s Office will hold a hearing before a Hearing Officer who will affirm, modify or dismiss the citations.
...

The Contra Costa County District Attorney’s Office filed a felony complaint against Segundo Collazos, the owner of Amazon’s Landscaping Company based out of Concord.

The charges relate to the 2018 death of Manuel Peralta, then 68, of Antioch, California, who died while operating a rented tree stump grinder in San Ramon.

According to the OSHA report, Collazos and Peralta were working at the 3700 block of Segovia Court in San Ramon on April 9, 2018. Peralta had a rope tied around him and was tied to a Dosko stump grinder. The owner of the company was operating the stump grinder.

Peralta's rope became entangled in the cutting wheel of the stump grinder, resulting in his being pulled into the grinder's cutting wheel killing him.

Collazos, the company owner who had been operating the machine, was fined $54,750 for six workplace violations.

At the time of the incident, Collazos had a suspended license with the Contractors State License Board. The investigation began from the California Department of Industrial Relations’ Division of Occupational Safety & Health Bureau of Investigations.

The first felony alleges that defendant Collazos permitted the victim Manuel Peralta to use a stump grinder in a manner contrary to manufacturer recommendations and to work in the danger zone of the cutting wheel, resulting in his death.

The second felony alleges that Collazos failed to properly train Peralta on the proper and safe use of the stump grinder, also resulting in his death.

"Employers must be made aware that disregarding the requirement to train and supervise workers using dangerous equipment can lead to tragedy and possible jail time," said Cal OSHA Chief Doug Parker in a statement.

The District Attorney’s Office reminds homeowners to check that a contractor is currently licensed and insured before hiring them for residential construction work. Homeowners can check the validity of a license number on the Contractors’ State Licensing Board website or call (800) 321-CSLB (2752).

Deputy District Attorney Ryan Morris is prosecuting the case on behalf of the People. DDA Morris is assigned to our Office’s Special Operations Division ...

More than a third of employers have fielded complaints from workers related to COVID-19, and claims involving the Americans with Disabilities Act have jumped since last summer, according to a survey of employers released by Blank Rome LLP on Wednesday.

Blank Rome's report, based on a February survey of 130 executives, human resources leaders, and in-house and general counsel, said that 34% of respondents had gotten COVID-19-related complaints. That's up from 21% in July and just 12% in March 2020, the firm said, adding that ADA claims climbed from 4% in July to 8%.

And while the overwhelming majority of the company leaders - 87% - are in favor of taking the COVID-19 vaccine themselves, only 15% said they would require workers to get the jab. Meanwhile, 39% of respondents said they would not require employees to be vaccinated, and the rest were undecided.

When it comes to asking workers if they have been vaccinated, 41% answered that they plan to do so, though half remained unsure.

When it comes to the potentially risky practice of incentivizing the shots, just 10% of respondents said they would, while 34% said they won't and the rest had yet to decide, according to the report.

"Employers are waiting to see how it all shakes out," Susan Bickley, a Blank Rome partner and study co-authors aid, adding that employers might be able to encourage workers to get vaccines without instituting mandates or structured incentive programs. "There's been some conflicting signals."

While the report showed a steady rise in complaints from employees, it also showed that nearly three-quarters of them don't fall into traditional categories for employment claims, such as discrimination, retaliation, and Occupational Safety and Health Administration complaints.

Employers have widely adopted medical screening requirements for on-site workers, which could be a driver of the increasing employee complaints, the report said. The majority of the surveyed employers have increased cleaning, social distancing requirements and associated signage. Roughly 97% require masks, a figure that has risen since the summer.

Three-quarters of employers allow their employees to work from home, and only 28% have three-quarters or more of their employees on site. Most continue to refrain from instituting workplace liability waivers.

Additionally, 78% of employers have faced increased requests for paid time off. And around 40% have seen increased requests for time off under the Family and Medical Leave Act or unpaid leave.

But those requests haven't had too much of an impact on typical time-off eligibility. Around 60% of the employers haven't made changes to PTO offerings, and just 6% have given parents of young children more PTO.

In April, more than half of employers had avoided taking employee-related cost-cutting measures, such as layoffs and furloughs. That number has dropped as the pandemic has raged on; now, just 31% have managed to evade those outcomes.

"This was the first survey where employers are feeling somewhat hopeful," Iley said. "We got some positive comments. People are coming out of the difficult decisions." ...

John Coffman, a longtime employee of the California Department of Transportation, died by suicide in 2015. He began working for Caltrans doing landscape maintenance work in the early 2000s.

Since at least May 1998, Caltrans has had a "zero tolerance" policy for workplace violence, including threats, harassment, verbal abuse, bullying, and intimidation. He began reporting incidents of verbal abuse, intimidation, and threats of physical harm starting in 2002. He documented incidents nearly every year until 2015.

The October 2, 2015 incident caused him to be "extremely stressed out." The following day, Coffman went to the hospital; his blood pressure was elevated, and he was prescribed medication to "help [him] cope." He was placed on leave due to emotional distress. He was scheduled to return to work on January 4, 2016, however he committed suicide on December 30, 2015.

His wife and son sued Caltrans and Coffman’s supervisor, Michael Nelson, for wrongful death. They allege that Coffman was bullied, ridiculed, and harassed at work by a number of coworkers and that Caltrans and Nelson failed to prevent those acts, causing Coffman’s death.

Caltrans and Nelson moved for summary judgment on the basis of their affirmative defense that the Coffmans’ claims are barred by workers’ compensation exclusivity. The trial court granted that motion.

The Court of Appeal affirmed the dismissal in the unpublished case of Coffman v. Dept. of Transportation.

The issue was whether the conduct of Nelson and Caltrans fell outside the compensation bargain such that workers’ compensation exclusivity does not bar appellants’ action. Coffmans advance two arguments for why their claims are not barred.

First, they maintain that the conduct of Coffman’s coworkers amounted to harassment, which they assert falls outside the compensation bargain. They further argue that Caltrans and Nelson ratified that conduct by failing to prevent it, such that they may be held liable for it. Second, appellants contend that Caltrans and Nelson’s failure to enforce Caltrans’s workplace violence prevention policy violated a fundamental policy of this state.

Analyzing the incidents individually reveals that the majority of the complained-of conduct by Coffman’s coworkers was within the compensation bargain. The incident in which Flores battered Coffman is an obvious exception, but that incident was investigated, Flores was found to have violated Caltrans’s workplace violence policy, and he was fired. Accordingly, Caltrans and Nelson cannot be said to have ratified that conduct and thus cannot be held liable for it.

Retaliation in violation of the FEHA, which count 2 does allege, likewise is outside the compensation bargain.
...

Medicare reimbursement policies for outpatient services have encouraged physician integration with hospitals, according to a new study and commentary published in Health Services Research.

An article on MedPageToday claims that's in part because Medicare reimbursement for physician services, on average, would have been $114,000 higher per physician per year for those who were integrated with a hospital, researchers found.

For primary care alone, reimbursement would have been $63,000 higher per physician per year for those who were integrated with a hospital. For medical specialties, the average reimbursement difference was $178,000, and for surgical specialties, it was $150,000.

The reimbursement difference per specialty ranged from $363,000 for urology to $15,000 for psychiatry, according to the study.

"These numbers are astonishing," healthcare technology consultant Dan O'Neill, MA, MS, tweeted. O'Neill is the former senior vice president and general manager of Change Healthcare and a former Robert Wood Johnson Foundation health policy fellow.

"The incentives and waste here are just ... incredible. As in, incredibly destructive," O'Neill tweeted. "Just imagine how much worse this is for commercial payers, given the 200% to 400% markups (over Medicare) in hospital outpatient departments."

Post and colleagues also found a modest association between a higher payment differential and the probability of integrating with a hospital. The effect was larger among primary care physicians and medical specialists, but not statistically significant among surgeons, they found.

Post also tweeted about the potential effects of vertical integration: "While integration is associated with higher prices, current evidence suggests a limited association with quality," he wrote. "As a result, we're not crazy about encouraging more of it."

There are several reasons the study has garnered attention, Michael Chernew, PhD, professor of healthcare policy at Harvard Medical School and author of the study's corresponding commentary, told MedPage Today.

"There's an enormous amount of concern about healthcare prices in this country," Chernew said. And much of the concern about high prices is because of consolidation.

Additionally, there is interest in Medicare spending, he said. One issue that has an impact on that is site-neutral payments. "This study links them together in a way that is both interesting and policy-relevant," Chernew said ...

Kia Lor, 54, of Merced, was arraigned on four counts of insurance fraud after an investigation by the Department of Insurance found that she allegedly lied about the extent of prior injuries in an attempt to receive nearly $7,000 in undeserved workers’ compensation payments.

On October 5, 2018, Lor, a former Nutrition Assistant at the Merced Community Action Agency, injured her lower back while lifting a cooler at a company picnic.

During the course of treatment, Lor denied any prior injuries to her lower back when completing paperwork and while talking with the workers’ compensation insurance carrier and the Qualified Medical Examiner.

However, during the course of the investigation, it was found that Lor had submitted multiple motor vehicle accident claims between 1999 and 2016 where she suffered injuries to her back.

Additionally, she filed a workers’ compensation claim in 2008 reporting a back injury.

Lor’s misrepresentations about the extent of her prior injuries could have resulted in her being paid $6,960 for permanent disability, but the investigation prevented the payment.

Lor was arraigned at the Merced County Superior Court. This case is being prosecuted by the Merced County District Attorney’s Office ...

Robert Piontkowski, an employee of Chevron, was seriously injured on the job at the company’s El Segundo refinery when he was splashed with super-heated materials. Plaintiff subsequently received workers’ compensation benefits for the injuries he sustained.

Piontkowski claims he was injured because a pipe that would normally have drained those materials in a different manner was plugged.

Chevron had a services agreement with Veolia Environmental Services, Inc. to hydroblast such pipes at Chevron’s direction. Plaintiff also alleged that a few days prior to the accident, Chevron requested that Veolia unplug the drain line. At the time of the accident, Veolia had not yet reported to unplug the line.

Plaintiff filed this negligence action against Veolia alleging Veolia owed him a duty, as a third-party beneficiary of the services agreement, to timely respond to a request from Chevron to clean the drainpipe at issue and, further, that Veolia’s failure to clean the pipe caused the condition that led to his injury.

The trial court granted Veolia ES Industrial Services, Inc.’s motion for summary judgment, finding as a matter of law that plaintiff could not establish that Veolia owed him a legal duty of care. Plaintiff appealed. Finding no error, the court of appeal affirmed the judgment of the trial court in the unpublished case of Piontkowski v. Veolia ES Industrial Services, Inc.

In considering whether a party has a legal duty in a particular factual situation, a distinction is drawn between claims of liability based upon misfeasance and those based upon nonfeasance.

Misfeasance exists when the defendant is responsible for making the plaintiff’s position worse, i.e., defendant has created a risk. Liability for misfeasance is based on the general duty of ordinary care to prevent others from being injured by one’s conduct.

Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention. Liability for misfeasance is based on the general duty of ordinary care to prevent others from being injured by one’s conduct. Liability for nonfeasance is limited to situations in which there is a special relationship that creates a duty to act.

The basic idea is often referred to as the "no duty to aid rule," which remains a fundamental and long-standing rule of tort law. As a rule, one has no duty to come to the aid of another. A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act.

The services agreement was not intended to benefit Chevron’s employees nor was it focused on providing a safe work environment for them. Rather, it is plain from the agreement that Veolia’s services were intended to benefit Chevron by keeping its refineries and equipment operating smoothly ...

A Hawthorne-based physician has settled allegations that he violated the False Claims Act by receiving kickbacks and other improper payments in exchange for referring patients to Memorial Hospital of Gardena.

Dr. Ashok Kumar paid $215,228 on March 1 to settle the allegations brought against him in a whistleblower lawsuit that Memorial Hospital of Gardena provided compensation to Kumar, whom they hired as a medical director, that both exceeded the fair market value of his services and was an attempt to incentivize him to refer patients to their hospital.

The lawsuit alleged that Kumar violated the federal Anti-Kickback Statute as well as the Physician Self-Referral Law. The Anti-Kickback Statute imposes civil liability on those who willingly offer, solicit, receive or pay any sort of compensation in exchange for the referral of services provided by a federal health care program, including Medicare. The Physician Self-Referral Law, commonly known as the Stark Law, bans doctors from referring patients to receive designated health care services payable by Medicare or Medicaid from entities with which the doctor or an immediate family member has a financial relationship.

The settlement resolves allegations originally brought in a lawsuit by Dr. Joshua Luke, the former chief executive officer of Memorial Hospital of Gardena, against Kumar and other defendants under the whistleblower provisions of both the federal and California False Claims acts. Both statutes permit private parties to sue on behalf of the state and federal governments for false claims for government funds, and to receive a share of any recovery.

Dr. Luke will receive $42,529 from the federal government as his share of the recovery announced today. His allegations against the other defendants were resolved in 2018 when they agreed to pay the federal government an $8.1 million settlement. The allegations brought on behalf of the State of California have been resolved pursuant to a separate agreement.

This case was handled by Assistant United States Attorney Frank D. Kortum of the Civil Fraud Section, who worked closely with the U.S. Department of Health and Human Services - Office of Inspector General. Tips and complaints from all sources about potential fraud, waste, abuse and mismanagement can be reported to the Department of Health and Human Services, at 800-HHS-TIPS (800-447-8477).

The case is United States of America ex rel. Luke, State of California ex rel. Luke v. Gardena Hospital, L.P. DBA Memorial Hospital of Gardena, Avanti Hospitals, LLC, et al., CV 15-8732-MCS ...

A federal grand jury returned an indictment charging two defendants in a scheme that targeted California Employment Development Department unemployment insurance benefits that were intended for Californians hit hardest by the ongoing COVID-19 pandemic shutdown.

The three-count indictment charges Jason Vertz, 51, of Fresno, and Alana Powers, 45, an inmate at the Central California Women’s Facility in Chowchilla, with one count of conspiracy to commit mail fraud and two counts of aggravated identity theft.

The indictment was unsealed and Vertz was arraigned on Tuesday following his arrest.

According to court documents, Vertz and Powers submitted several fraudulent unemployment insurance claims in Powers’ and other Central California Women’s Facility inmates’ names to EDD.

Recorded jail calls and emails show that Powers and other inmates, provided names, dates of birth, and social security numbers for inmates at Central California Women’s Facility to Vertz to submit the fraudulent claims. Shortly thereafter, the benefits were loaded onto debit cards that were mailed to the addresses the defendants provided.

The underlying applications for the claims stated that the inmates had worked within the prescribed period as maids, cleaners, fabrication welders, and other occupations, and that they were available to work, which was not true because they were incarcerated.

The claims would have been denied if accurate answers had been given. EDD and the United States have suffered an actual loss of over $103,000 as a result of the fraud.

This case is the product of an investigation by the FBI, the California Department of Corrections and Rehabilitation Investigative Services Unit, and the California EDD.

If convicted of the conspiracy to commit mail fraud, Vertz and Powers each face a maximum statutory penalty of 20 years in prison and a fine of up to $250,000.

If convicted of the aggravated identity theft, they face a mandatory two-year sentence consecutive to any other sentence ...