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Ian Czirban was charged with a number of regulatory crimes following a fatal July 2016 accident involving his bulldozer, which had been assisting the California Department of Forestry and Fire (Cal Fire) at a wildfire in Monterey County.

After a bench trial, the trial court convicted Czirban of procuring or offering a false or forged instrument, tax evasion, failure to collect, account for, or pay taxes, and misdemeanor failure to secure payment of workers’ compensation insurance.

For these convictions, the trial court suspended imposition of sentence and placed Czirban on felony probation for three years with various conditions, including the payment of a $10,000 fine under Labor Code section 3700.5.

On appeal, Czirban contends that his convictions for tax evasion, failure to pay taxes, and failure to secure payment of workers’ compensation insurance must be reversed because he did not have an employment relationship with his bulldozer drivers, an element of those offenses.

The parties agreed at trial that the trial court should resolve this factual question central to counts 5, 6, and 7 under the multifactor test articulated in Borello - not the three-part - "ABC test" - adopted by the California Supreme Court for wage order claims, a year before Czirban’s trial, in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, 916, 964.

Given the timing of the criminal acts alleged against Czirban, the court concluded that the parties’ agreement regarding the applicability of Borello was proper.

Czirban relies on Borello, 48 Cal.3d at p. 349 and Lara v. Workers’ Comp. Appeals Bd. (2010) 182 Cal.App.4th 393, 396, 398 (Lara) to argue that the question of worker status.

The conviction was affirmed in the published case of People v Czirban. The terms of probation were however reversed and the matter submitted back to the trial court with instructions.

Examining the trial evidence under the Borello test, the court concluded that there is sufficient evidence of an employment relationship between Czirban and his bulldozer drivers during the relevant period.

The evidence demonstrates that it was Czirban who decided whether to accept 24-hour resource assignments from Cal Fire (including the Soberanes fire assignment), knowing that he would need to enlist other bulldozer drivers to complete them. Czirban thus controlled the overall scope of the work, the number of operators needed for any assignment he accepted, who those other operators would be, and the overall period during which the operators would work.

During Czirban’s chosen wildfire assignments, his bulldozer drivers also were not "engaged in a distinct occupation or business."

These circumstances demonstrate Czirban’s "right to control the manner and means of accomplishing the result desired," (Borello, supra, 48 Cal.3d at p. 350) i.e., to have certain workers operate his bulldozer to fulfill his chosen wildfire assignments so he could obtain a higher rate of compensation from Cal Fire.

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/ 2021 News, Daily News
Reuters reports that U.S. states are racing to meet a deadline to commit to a $26 billion opioid settlement with three drug distributors and the drugmaker Johnson & Johnson, as some grapple with local resistance and concerns the amount isn’t big enough to address the damage done by an epidemic of addiction.

Fourteen state attorneys general unveiled the proposed settlement here with McKesson Corp, AmerisourceBergen Corp, Cardinal Health Inc and J&J on July 21, kicking off a months-long process for states, counties and cities to sign on.

By Saturday, states must decide whether to join settlements that call for the distributors to pay $21 billion and J&J to pay $5 billion, money meant to help fund treatment and other services. The epidemic of opioid abuse has resulted in nearly 500,000 overdose deaths since 1999, according to the U.S. government.

The settlement’s complex formula envisions at least 44 states participating, but ultimately the companies decide whether a "critical mass" have joined and whether to finalize the deal.

North Carolina Attorney General Josh Stein, a lead negotiator, last month said he expected "well north" of 40 states to join. But several are against it, including Washington and New Mexico and communities in West Virginia holding out in hopes of recouping more.

Michigan, South Carolina and Nevada say they are still evaluating the deal.

Ohio, which was slated to take the distributors to trial next month, is nearing a separate, related $808 million deal with them.

In hard-hit New Hampshire, Associate Attorney General James Boffetti said he recently told a judge the state was unlikely to join the deal with J&J, which the state plans to take to trial next year.

"That settlement is small in comparison to the harm that they caused in New Hampshire and other places," he said. "It’s just not sufficient."

Texas Attorney General Ken Paxton on Aug. 5 announced the state would join the distributors’ settlement, but in a twist said the state was "still evaluating" J&J’s piece.

Some local Texas governments have opposed the deal, and a January trial date is set in a lawsuit by the populous city of Dallas, which has sued the distributors, J&J and others for $10.5 billion ...
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/ 2021 News, Daily News
The Division of Workers’ Compensation (DWC) has issued a Notice of Public Hearing for a proposed evidence-based update to the Medical Treatment Utilization Schedule (MTUS), which can be found at California Code of Regulations, title 8, section 9792.23.5. The Zoom public hearing is scheduled for Friday, September 17, at 10 a.m.

The proposed evidence-based update to the MTUS incorporate by reference the latest published guideline from American College of Occupational and Environmental Medicine (ACOEM) for the following:

- - Low Back Disorders (ACOEM February 13, 2020)

Two of the many recommendations in the new guideline illustrate the emphasis of early return to work as a treatment objective:

- - "Many invasive and noninvasive therapies are intended to cure or manage LBP, but no quality evidence exists that they accomplish this as successfully as therapies that focus on restoring functional ability without focusing on pain. In those cases, the traditional medical model of "curing" the patient does not work well. Instead, patients should be aware that returning to normal activities most often aids functional recovery."

- - "Patients should be encouraged to accept responsibility for managing their recovery rather than expecting the provider to provide an easy "cure." This process promotes the use of activity and function rather than pain as a guide, making the treatment goal of return to occupational and non- occupational activities more obvious."

The proposed evidence-based update to the MTUS regulations are exempt from Labor Code sections 5307.3 and 5307.4 and the rulemaking provisions of the Administrative Procedure Act. However, DWC is required under Labor Code section 5307.27 to have a 30-day public comment period, hold a public hearing, respond to all the comments received during the public comment period and publish the order adopting the update online.

Members of the public may review and comment on the proposed updates. Written comments must be submitted no later than September 17. Please see the proposed regulation page for direction for submitting written comments.

Members of the public may attend the public hearing:
Access Information
Join from PC, Mac, Linux, iOS or Android: https://dir-ca-gov.zoom.us/j/83914299767
Or Telephone:
Dial:
USA 216 706 7005
USA 8664345269 (US Toll Free)
Conference code: 956474 ...
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/ 2021 News, Daily News
The Labor Commissioner’s Office has reached a $1.6 million settlement with the owners of Z & Y Restaurant in San Francisco, securing compensation for 22 workers for unpaid minimum wages, overtime, split shift premiums and tips identified in a wage theft investigation from 2019. Including expected post-settlement interest, each worker will receive on average approximately $73,000 under this settlement from payments that began today after the employer entered into an agreement with the Labor Commissioner’s Office.

"California law prohibits employers from taking tips left by customers for servers," said California Labor Commissioner Lilia García-Brower. "Under this settlement, the employer will pay workers back all of those stolen tips totaling over $400,000."

The Labor Commissioner’s Office learned of the potential violations in January 2019 after receiving a referral from the Chinese Progressive Association and Asian Americans Advancing Justice - Asian Law Caucus.

The investigation found that 22 servers and kitchen workers were not paid properly. The servers were paid hourly and the kitchen staff were paid a fixed salary that was below minimum wage and did not include overtime. The employer illegally kept tips left for the servers and did not pay servers split shift premiums when they were scheduled to work both the lunch and dinner shifts.

In April 2020, the Labor Commissioner issued wage assessments and penalties totaling over $1.4 million to the owners of Z & Y Restaurant Inc. The employer appealed the citations.

In September 2020, the Labor Commissioner filed a lawsuit to prosecute the restaurant owners for violations not covered by the citations, including the theft of tips, violations of California’s Paid Sick Leave law and record keeping violations. With the hearing on the citation appeal approaching, the employer reached a settlement with the Labor Commissioner that resolved the citations, the lawsuit, and pending wage claims that had been separately filed by four workers represented by the Asian Law Caucus.

Notification has been delivered to the current and former restaurant workers of their expected settlement payments and workers began receiving settlement payments with an average of approximately $73,000 per worker based on the number of hours worked during the audit period and the tips that were appropriated by the employer. The settlement also includes $9,550 in civil penalties payable to the state.

"A significant amount of the payment due to workers in this case is from stolen tips," added Labor Commissioner García-Brower. "Workers must be proactive to protect their rights. Keep track of the tips you think you should have received to help support your claim and when approaching your employer about this issue, document the conversation and have a witness." ...
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/ 2021 News, Daily News
The jury in the case of United States of America v. Dr. Serge Obukhoff, (Case No. CR:18-00140-JLS), issued a verdict of Not Guilty on all 35 counts of conspiracy and healthcare fraud contained in the Indictment, after a nearly three week federal criminal jury trial,

According to case documents, the case stemmed from allegations that Michael Drobot Sr., former owner of Pacific Hospital of Long Beach paid $2.3 million in kickbacks to Neurosurgeon Dr. Serge Obukhoff to induce the neurosurgeon to direct his patients to Paciific Hospital in violation of the anti-kickback statute, honest services fraud statute, conspiracy, wire fraud and mail fraud.

Additionally, the Indictment alleged that Dr. Obukhoff accepted kickbacks in the form of free rent and a paid medical directorship with Willow Medical Group as inducement to direct spinal surgeries to Monrovia Hospital. The indictment also includes honest services fraud and Travel Act charges. Obukhoff practiced out of various medical clinics in Southern California.

Defense attorneys countered that the defendant honestly held the belief that the $2.3 million was paid to him as part of an option agreement for a management company to buy his medical practice.

Additionally, Dr. Obukhoff was advised by the attorney for the management company, Michael Tichon, that the agreement was legal, valid and customary.

Dr. Obukhoff testified that he had done more than a 1000 surgeries at Pacific Hospital prior the option agreement and that he did not know that Michael Drobot Sr., and the healthcare company's attorney Michael Tichon engineered a 15 year healthcare fraud conspiracy that raked in $500 million.

Dr. Obukhoff testified that he was lied to by the attorney and Michael Drobot. Dr. Obukhoff further testified that his directorship with Willow Medical Group was valid and that in fact he never sought out or received any kickbacks in the form of rent ...
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/ 2021 News, Daily News
In a scathing report leaked to NBC Bay Area’s Investigative Unit, federal health regulators blasted Good Samaritan Hospital management for failing to address "serious, systemic, and recurring issues" that put numerous patients in harm’s way.

Officials from the Centers for Medicare and Medicaid Services (CMS) warn the hospital will no longer be paid for taking care of Medicare patients unless the hospital corrects a series of deficiencies outlined in the 65-page report.

Health inspectors took aim at the hospital’s management - including its chief executive officer, chief medical officer and chief nursing officer - but also detailed staffing and training issues that led to mistakes and direct injury to patients. The report states management’s failures placed "13 of sampled 37 patients at risk for adverse events."

This is the first time details of the CMS "Notice of Termination" against Good Samaritan Hospital are coming to light. NBC Bay Area first reported on the notice in July but did not have a copy of the report. The Investigative Unit requested the document multiple times from Good Samaritan Hospital, its parent company HCA Healthcare and federal regulators, but none of the agencies have released it. Over the weekend, NBC Bay Area obtained a copy through a hospital source and confirmed it with HCA.

Dr. Cheryl Damberg, a health services researcher at the non-profit RAND Corporation said that "Any time a hospital gets one of these notices, I think consumers should be concerned that the institution is not working to maintain the standards that the federal government has set forth,"

Officials from Good Samaritan Hospital and its parent company HCA Healthcare have declined multiple interview requests from NBC Bay Area over the past several months but said in a statement they’ve submitted a plan of correction that is currently under review by CMS.

"We addressed every issue noted by CMS and we are ensuring Good Samaritan is in full compliance," Good Samaritan spokesperson Janine De La Vega wrote in a statement. "We have full confidence we will meet the CMS requirements and retain our Medicare status. Our top priority is to be a strong partner with the San Jose community as we have been for the past 25 years and provide safe high-quality care to those we have the privilege of serving every day."

Beyond documenting leadership failures at the hospital, inspectors detailed a litany of other issues, including nurse-to-patient staffing ratios that were out of compliance with state mandates on multiple occasions earlier this year.

The lack of adequate staffing led to overburdened nurses and mistakes in care, including at least 11 missed patient assessments and at least four instances where medications were not administered to ICU patients according to physician orders, according to the report.

"The cumulative effect of these systemic problems resulted in the hospital’s inability to ensure the provision of quality health care in a safe environment," the report states.

Regulators also called into question the hospital’s training of staff and its evaluation of its own nurses’ competencies. In one case, a nurse reported she was given a patient she was not qualified to care for.

In two other cases, regulators said there wasn’t any "formal re-education" of staff when patients who were involuntarily hospitalized because of a mental health crisis were able to harm themselves. One of those patients was left in the bathroom alone, according to the report, and another was inappropriately discharged ...
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/ 2021 News, Daily News
After trending down over the first half of this year and falling to a 16-month low of just 676 claims in June, the monthly tally of new COVID-19 claims in the California workers’ compensation system spiked to 2,581 cases in July, just shy of the combined total of 2,635 COVID claims recorded for the prior three months.

That translates to a nearly four-fold increase in one month, the biggest monthly gain since COVID-19 claim volume hit its peak in December 2020. Claims with June and July injury dates are still coming in, but California Workers’ Compensation Institute (CWCI) projections based on historical reporting patterns estimate that ultimately the COVID-19 claim count for July will hit 3,872 cases, or 4.8 times the projected total of 811 claims for June.

Notably, July was the first full month following the June 15 reopening of the California economy, a move that coincided with a wave of COVID-19 infections fueled by the emergence of the highly infectious Delta variant. The state’s reopening plan allowed most businesses to fully reopen and brought many Californians who had been working remotely back into offices and other worksites.

July was also the first full month following the June 17 adoption and implementation of revised emergency health and safety standards designed to protect workers from COVID-19. Those standards, adopted following contentious public meetings, apply to most California workers not covered by Cal/OSHA's standard for aerosol transmissible diseases. Among other things, the revised standards allowed fully vaccinated employees to not wear face coverings (but required unvaccinated employees to mask up when in a room or vehicle with other employees) and eliminated the physical distance requirement in non-outbreak settings.

While the recent resurgence of California workers’ compensation COVID-19 claims has been broad-based, a CWCI analysis of June and July COVID claims data reveals that the extent of the surge varied by region and industry. Comparing June and July claim volume by region, the Institute confirmed that much of the July surge in COVID claims occurred in the state’s metropolitan job centers, led by Los Angeles County, which accounts for more than a quarter of all jobs in the state.

In June, COVID-19 workers’ comp claim volume in Los Angeles County had fallen to 128 cases, or 18.9% of the statewide total, ranking it behind the Central Valley (22.0%), the Bay Area (20.1%), and the Inland Empire/Orange County (19.4%). But in July, L.A. County’s COVID claim volume soared to 621 claims, nearly 5 times its June total, and it surpassed every other region of the state as its share of the statewide COVID claim count rose to 24.1%.

The review of COVID claims by industry found that while public safety/government workers continued to account for more claims than any other sector as their claim total increased from 144 claims in June to 546 claims in July, that growth rate was in line with the statewide increase, so their share of the COVID claim total remained at just over 21%. Meanwhile,

COVID claims among for health care workers were also up, increasing from 124 claims in June to 456 in July, but that was slightly less than the statewide growth rate, so the health care sector’s share of the statewide total dipped from 18.3% to 17.7%. The transportation sector, on the other hand, saw the biggest increase in its share of the COVID claims, as it went from 59 claims in June to 352 claims in July, a 6-fold increase that moved it ahead of both the retail and the food service sectors, making it the number 3 industry sector for COVID claims last month.

The public can view additional data on the latest California workers’ compensation COVID-19 claims data by using CWCI’s COVID-19/Non-COVID 19 Interactive Data Application ...
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/ 2021 News, Daily News
A High Desert physician remains in federal custody today after his arrest Wednesday on charges of illegally dispensing prescriptions for often-abused controlled substances - including opioid-based medications - during telemedicine sessions with "patients" from across the United States.

36 year old Dr. Raphael Tomas Malikian, who resides in Llano and Palmdale and called his medical practice Happy Family Medicine, was arrested Wednesday afternoon by special agents with the Drug Enforcement Administration.

An indictment naming Malikian was unsealed at his arraignment Thursday evening, when Malikian entered not guilty pleas and a United States Magistrate Judge ordered him detained pending trial, which is currently scheduled for October 5.

Malikian is charged in an 11-count indictment with illegally distributing narcotics "while acting and intending to act outside the usual course of professional practice and without a legitimate medical purpose." The controlled substances that Malikian allegedly distributed are oxycodone, hydrocodone, alprazolam, promethazine and codeine.

The DEA investigation was prompted by multiple reports in February 2020 of suspicious prescriptions issued by Malikian. The indictment alleges specific incidents in which Malikian prescribed controlled substances without a medical purpose after seven telemedicine consultations - including one conducted entirely via text message - starting in April 2020 and continuing through July 2020. None of the consultations involved any physical exam or diagnostic tests, and the appointments lasted as little as 2 minutes and 20 seconds.

A federal judge on Thursday unsealed search warrants executed at Malikian’s residences in conjunction with his arrest. The affidavit in support of the search warrants outlines the DEA’s investigation, which included various undercover operations in which agents from the DEA and California DOJ posed as patients and received the prescriptions that form the basis of the indictment. The DEA agent who authored the affidavit concluded that Malikian "effectively sells prescriptions for controlled substances to patients upon request, and does so without obtaining a patient’s medical history or conducting a physical examination."

According to the affidavit, an independent medical expert reviewed the interactions between Malikian and the undercover agents and "concluded that Malikian ‘did not thoroughly evaluate his patients before prescribing potent and potentially deadly medications, and had done so ‘without any regard to what is required of conscientious physicians in the United States before proceeding with controlled medications."

A DEA investigator also reviewed patient records maintained by Malikian, which showed that Malikian saw patients across the United States and that about 43 percent of them shared common addresses, email addresses, "caregivers" or phone numbers with other patients. According to the affidavit, one of those patients was a convicted narcotics trafficker and another was stopped at Los Angeles International Airport while carrying over $19,000 in cash and approximately 1,764 Hydrocodone and Alprazolam pills ...
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/ 2021 News, Daily News
Rebecca Gage sustained injury to the lumbar spine while employed as a deputy sheriff by the County of Sacramento.

In 2015, she requested advance disability pension payments per section 4850.4. Defendant made payments, but applicant contended that the payments were unreasonably delayed and sought penalties per section 5814. (Lab. Code, § 5814.)

The issue proceeded to trial. In his August 6, 2015 Findings of Fact and Order (F&O), the WCJ determined that advances made under section 4850.4 are compensation pursuant to section 3207 and subject to penalties under section 5814.

In a subsequent Opinion and Decision After Reconsideration, a split panel held that advances for a disability pension paid under section 4850.4 are not compensation and consequently not subject to the penalty provisions of section 5814. The F&O was rescinded and a new decision issued with the majority’s finding regarding this dispute.

The Court of Appeal reversed, and agreed with applicant that advance disability pension payments are compensation under section 3207 and the Appeals Board thus has jurisdiction to issue penalties per section 5814 for an unreasonable delay of payments made pursuant to section 4850.4. (Gage v. Workers’ Comp. Appeals Bd. (2016) 6 Cal.App.5th 1128 [81 Cal.Comp.Cases 1127].)

A Stipulation and Award issued on August 24, 2018 and the the parties resolved all penalties to date.

On February 16, 2021, defendant filed a DOR seeking an order compelling applicant to participate in the resolution process of Labor Code section 4850.4(f). They claimed that a mediation was scheduled to resolve the dispute, but Gage did not attend and subsequently unresponsive to communications.

4850.4(f) provides that "if an employee’s disability application is denied, the local agency and the employee shall arrange for the employee to repay any advanced disability pension payments received by the employee pursuant to this subdivision." And ..."the local agency may take reasonable steps, including litigation, to recover the payments advanced."

The WCJ ruled that "This request is denied because the WCAB does not have jurisdiction over this process, despite the Court of Appeal decision in this case.... Defendant further requests that the court set a hearing over the question of jurisdiction in order to create a record, but this appears to be a pure legal question for which no record is necessary and so this request is likewise denied."

The WCAB panel granted reconsideration of this Order in the newest panel decision of Gage v County of Sacramento ADJ8010054 (2021).

Decisions of the Appeals Board "must be based on admitted evidence in the record." Furthermore, decisions of the Appeals Board must be supported by substantial evidence. Additionally, all parties to a workers’ compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. Additionally, a determination akin to summary judgment is not permitted in workers’ compensation proceedings. (See Cal. Code Regs., tit. 8, former § 10490, now § 10515 (eff. Jan. 1, 2020).)

The matter was remitted to provide both parties with an opportunity to present their arguments regarding this dispute and create an evidentiary record ...
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/ 2021 News, Daily News
Dr. Robert Wallace Malone is an American virologist and immunologist. His work has focused on mRNA technology, pharmaceuticals, and drug repurposing research.

He was a pioneer who helped develop mRNA vaccine technology, raised concerns about potential long-term autoimmune issues and other complications potentially arising from mRNA jabs. He showed concerns about the possibility that 'imperfect' vaccines might actually help foster more virulent COVID variants due to a phenomenon called "ADE"- antibody-dependent enhancement. Essentially, what doesn't kill the virus makes it stronger.

He has been highly criticized during the beginning of the COVID pandemic for these views.

His views are gaining traction. A British scientist and academic named Professor Sir Andrew Pollard, who is the director of the Oxford Vaccine Group. During a briefing, Sir Pollard warned Parliament that the UK likely won't ever achieve herd immunity, thanks to the delta variant.

In remarks that risked undermining the government's vaccination campaign, Sir Pollard, a professor of pediatric infection and immunity, warned Parliament on Tuesday that achieving herd immunity is likely "not a possibility" thanks to variants like delta.

Recently, a group of scientists estimated that the threshold for herd immunity might now be as high as 90% due to the delta variant. According to Pollard, we're learning for the first time that herd immunity is magical thinking - and has always been magical thinking.

Since those who are vaccinated can still be infected by variants, "there is virtually nothing the UK can do" to eradicate COVID completely.

"We know very clearly with coronavirus that this current variant, the Delta variant, will still infect people who have been vaccinated, and that does mean that anyone who's still unvaccinated, at some point, will meet the virus," Pollard said.

He said it was unlikely that herd immunity will ever be reached, saying the next variant of the novel coronavirus will be "perhaps even better at transmitting in vaccinated populations."

Pollard also shared what sounded like a subtle criticism of masks by saying that "We don't have anything which will stop that transmission to other people." As an example, he pointed to Israel, which saw new cases and hospitalizations nearly disappear before the new variant took hold, causing cases and hospitalizations to surge once again. Now, there have even been a handful of patients who have tested positive even after receiving their third dose of the Pfizer jab (which the US has only just approved for a third dose as well).

Even the White House is finally acknowledging that vaccines aren't nearly as effective as they once believed, which is why the FDA has decided to approve the third dose. "I think everybody believes this wanes over time, the question is to what extent," a senior Biden official told Axios. "Nobody wants to be behind the eight-ball here. We want to catch it before there’s an issue, and that’s why there is very intense scrutiny." ...
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/ 2021 News, Daily News
Maryam Hedayati suffered catastrophic injuries when Auto Club’s insured, Maurice Vanwyk, ran a red light and struck her in a pedestrian crosswalk. The accident severed one of Hedayati’s legs at the scene, shattered the other, and left her in a coma with broken bones throughout her body. Forty-three years old and a recent medical school graduate at the time, Hedayati was struck while walking as she took a break from studying for her medical board examinations.

The insured driver immediately notified Auto Club of the accident and authorized the Club to disclose his policy limits ($25,000); he also informed Auto Club he had no other insurance or assets. Auto Club’s policy with its insured required him to relinquish to the Club his right to negotiate settlement of potential tort claims falling within the policy. When he inquired about a release, Auto Club inaccurately told its insured driver Hedayati was not willing to sign one.

Despite repeated requests during settlement negotiations from Hedayati’s attorney, Auto Club initially declined to disclose the insured’s policy limits; eventually it relented, but even then Auto Club declined to provide written proof of those limits, which the Club knew was common practice to facilitate a settlement. Auto Club then withheld from Hedayati’s counsel the insured’s written declaration which indicated he had no other insurance, which the Club had confirmed, and the insured’s statements that he had no assets.

Auto Club also, despite multiple requests from Hedayati’s lawyer, failed to provide a copy of its insured’s policy which Hedayati’s lawyer needed to verify its terms.

Auto Club ultimately failed to settle the matter within its $25,000 policy limits. Hedayati subsequently obtained a $26 million judgment against the insured driver, along with assignment of the insured’s claim against the Club for breach of the covenant of good faith and fair dealing implicit in its policy with him.

In following litigation filed by Hedayati for bad faith against Auto Club, Auto Club moved for summary judgment, which was granted by the trial court. The Court of Appeal reversed in the published case of Hedayati v Auto Club.

The trial court explained it "must be guided by how case law defines bad faith" and agreed with "the definition [of bad faith] as an unreasonable refusal to accept a settlement offer within policy limits." The court, however, reiterated its conclusion that Auto Club "never refused any of plaintiff’s policy limits settlement demands." According to the court, "All plaintiff has shown is that defendant failed to respond by plaintiff’s self-imposed, arbitrary deadline to a demand defendant received the day before Thanksgiving for not just $25,000, but also for a signed declaration from the insured attesting to certain facts."

The Court of Appeal carefully reviewed the law of insurance bad faith, and pointed out several errors in the ruling by the trial court. Good faith and fair dealing requirements obligate insurers to make reasonable efforts to settle claims against their insureds. An insurer that unreasonably fails to accept a settlement demand that falls within the policy limits of its insured acts in bad faith. An insurer may also be liable if it breaches other duties owed to the insured, such as the duty to investigate or the duty to communicate, and that breach prevented the insurer from settling the claim within policy limits. A liability insurer has a duty to communicate to its insured any settlement offer that could affect the insured’s interests, particularly where action is required by the insured to secure the settlement.

There was therefore a triable issue of bad faith, and summary judgment was not justified ...
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/ 2021 News, Daily News
The California Department of Public Health (CDPH) issued a new public health order on August 11, requiring all school staff to either show proof of full vaccination or be tested at least once per week.

The new policy for school staff will take effect August 12, 2021, and schools must be in full compliance by October 15, 2021. Robust and free testing resources are available to K-12 schools through the CA K-12 schools testing program.

In recent weeks, California claims it has led the nation in implementing measures to slow the spread of COVID-19, including:

- - Vaccine verification for state workers. Requires all state workers to either show proof of full vaccination or be tested at least once per week, and encourages local governments and other employers to adopt a similar protocol. Following California’s announcement, some of the largest California businesses and local governments followed suit, as did the federal government.
- - Vaccinations for health care workers. Requires workers in health care settings to be fully vaccinated or receive their second dose by September 30, 2021.
- - Universal masking in K-12 settings. Aligned with guidance from the CDC and American Academy of Pediatrics, California was the first state to implement universal masking in school settings to keep students and staff safe while optimizing fully in-person instruction.
- - Medi-Cal vaccination incentives. $350 million in incentive payments to help close the vaccination gap between Medi-Cal beneficiaries and Californians as a whole, significantly stepping up outreach in underserved communities.
- - Statewide mask recommendation. In response to the spike in COVID-19 hospitalizations and new CDC guidance calling for masking, the state recommended mask use for indoor public settings regardless of vaccination status.

​CDPH said that the COVID-19 pandemic remains a significant challenge in California. COVID-19 vaccines are effective in reducing infection, serious disease, hospitalization, and death. At present, 63% of Californians 12 years of age and older are fully vaccinated with an additional 10% partially vaccinated. Children under the age of 12 are not currently eligible for any authorized vaccines.

And the CDPH added that California is currently experiencing the fastest increase in COVID-19 cases during the entire pandemic with 22.7 new cases per 100,000 people per day, with case rates increasing tenfold since early June. The Delta variant, which is two times more contagious than the original virus, is currently the most common variant causing new infections in California ...
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/ 2021 News, Daily News
According to the Association of Air Medical Services, more than a half a million individuals are transported via air ambulance services each year. The majority of these transports are via helicopter in emergency situations; the remainder are fixed-wing transports for longer distances. Air ambulance companies successfully claimed that they were exempt from state fee schedules in litigation for more than a decade.

At one time, California Administrative Director Rule 9789.70(a) regulated ambulance services fees. The ambulance fee schedule as applied to air ambulance services was challenged by those providers in California.

Ultimately, the WCAB issued an en banc decision in 2013 ( Luis Enriquez (deceased) v Couto Dairy and Zenith Insurance Company ) conceding the preemption of federal law over Official Medial Fee Schedule limits if the air ambulance provider could establish that they were an "air carrier" that provides air transportation within the meaning of the Airline Deregulation Act, and that this Act would then preempt any California law.

This more or less ended the controversy in California workers' compensation. And decisions in other jurisdictions had a similar result until a recent Texas Supreme Court Decision.

Excessive helicopter transport bills were the crux of the lawsuit in PHI Air Medical, LLC v. Texas Mutual Insurance Company, et al. A trial court rendered judgment in favor of eight plaintiff insurers, which included Texas Mutual Insurance Company and Hartford Underwriters Insurance Company, who disagreed with PHI’s per-trip charge for medically transporting injured workers.

In Split June 26, 2020 Opinion, the Supreme Court of Texas Rejected the Preemption Argument in Worker’s Compensation Disputes in the case of Tex. Mut. Ins. Co. v. PHI Air Med., LLC, 610 S.W.3d 839 (Tex. 2020), cert. denied, _ S. Ct. _, 2021 WL 1602647 (Apr. 26, 2021).

However, a similar case made its way into the Federal court system in Texas, on the same issue. Air Evac EMS, Inc., is an air ambulance provider that offers medical transport services to a wide variety of patients. That includes patients who are injured at their workplace. The price that Air Evac may charge for such transportation is accordingly subject to conflicting regulatory regimes.

Two of the Fifth Circuit sister circuits have unanimously held that the ADA preempts price controls on air ambulance services set by state workers’ compensation regulations. See Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751 (4th Cir. 2018); EagleMed LLC v. Cox, 868 F.3d 893 (10th Cir. 2017).

Now the Fifth Circuit Court of Appeal agreed, and reversed the Texas Supreme Court position. In Air Evac EMS, Incorporated v Texas Commissioner of Insurance (2021).

"In doing so, we agree with our sister courts of appeals, which have unanimously held that the ADA preempts state price caps on air ambulance reimbursements, and that those state price caps are not saved by the McCarran- Ferguson Act. And we disagree with the Texas Supreme Court, which has reached contrary conclusions by a divided vote." ...
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/ 2021 News, Daily News
Courthouse News reports that a federal judge on Tuesday dismissed Amazon’s lawsuit seeking to block New York Attorney General Letitia James’s investigation into its worker safety protocols during the early days of the Covid-19 pandemic.

According to James, Amazon failed to institute reasonable safety measures at two facilities - a Staten Island fulfillment center called JFK8 and a Queens distribution center called DBK1 - that have a combined workforce of 5,000 employees.

In addition to ignoring its duty to follow cleaning and disinfecting requirements, according to the complaint, Amazon would fail to identify or notify employees potentially exposed to the virus through their contact with co-workers in the same facilities who wound up positive for the virus that causes Covid-19.

After workers complained and protested the pandemic conditions one was fired and another was issued a final written warning. James calls that action retaliatory, while Amazon argues the disciplinary measures were the result of the in-person protests thwarting social distancing rules.

The state matter took a trip to federal court but landed back in New York County in April and remains pending.

Separate from the ongoing state matter was the now-dismissed complaint in the Eastern District of New York, which Amazon - aware of James’ investigation - filed less than a week before James did.

The company had argued that the state was preempted by federal worker safety laws under the Occupational Safety and Health Administration.

U.S. District Judge Brian M. Cogan, a George W. Bush appointee, disagreed. "Here, the Attorney General’s state action seeks to enforce state labor laws and health and safety regulations, and to sanction an employer for allegedly illegal conduct that occurred within the state," he wrote in the 11-page order.

"In other words, the general nature of the Attorney General’s state case is the enforcement of the state’s laws, particularly those aimed at protecting the health and safety of its citizens. Such an action goes to a fundamental interest of the state as a sovereign," he added.

State court is an adequate forum to review Amazon’s federal claims, Cogan ruled, noting that Amazon has already asserted the same preemption arguments in a pending motion to dismiss the state proceeding.

The company failed to explain why it can’t seek the injunctive relief in wants through a counterclaim in the existing state court proceeding, the judge wrote ...
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A string of victories by plaintiffs in the several Monsanto Roundup cancer cases may be paving the way for workers' compensation subrogation, should those cases be filed by California farm workers as industrial injuries. A new published opinion in California continues to be favoring plaintiffs.

Alberta Pilliod and her husband, Alva Pilliod, each developed non-Hodgkin’s lymphoma after years of spraying Roundup herbicide on their property.

The Pilliods sued Monsanto Company, the manufacturer of Roundup, for damages based on claims of design defect and failure to warn. After a six-week trial, the jury found for the Pilliods, awarded Alberta over $37 million in compensatory damages, awarded Alva over $18 million in compensatory damages, and awarded each of them $1 billion in punitive damages.

The trial court conditionally denied Monsanto’s motion for new trial, contingent on the Pilliods’ acceptance of substantially reduced compensatory and punitive damages, resulting in a total award to Alberta of about $56 million (including about $45 million in punitive damages) and a total award to Alva of about $31 million (including about $25 million in punitive damages). The Pilliods accepted the reductions.

On appeal, Monsanto argues that the Pilliods’ claims are preempted by federal law, the jury’s liability findings are not supported by substantial evidence, the jury was improperly instructed as to the Pilliods’ design defect claim, the jury’s causation findings are legally and factually flawed, the trial court abused its discretion by admitting certain evidence, and the verdict is the product of attorney misconduct.

Monsanto also argues that the punitive damages awards should be stricken or further reduced because they are unsupported by evidence and constitutionally excessive.

In their cross- appeal, the Pilliods argue that the trial court erred in reducing the jury’s awards for compensatory and punitive damages.

The trial court was affirmed in the published option of Pilliod v Monsanto.

The 84 page decision carefully reviewed the scientific evidence, and the history of the plaintiffs' use of the evidence, and found that it supported the final result.

Monsanto argued that the Pilliods’ claims, which are brought under California common law, are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA, 7 U.S.C. § 136 et seq.), which governs the use, sale, and labeling of pesticides, including herbicides. On that basis, Monsanto contends that the Court of Appeal should reverse the judgment and direct the trial court to enter judgment for Monsanto.

The Court was not persuaded by their argument. The supremacy clause of the United States Constitution "makes federal law paramount, and vests Congress with the power to preempt state law." However, California common law does not impose any requirements that are different from or in addition to the requirements of FIFRA ...
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San Mateo County Medical Center and San Mateo County (collectively SMMC), located in California, have agreed to pay approximately $11.4 million to resolve alleged violations of the False Claims Act for submitting or causing the submission of claims to Medicare for non-covered inpatient admissions.

Medicare reimburses only services that are reasonable and necessary for the diagnosis or treatment of illness or injury.

The United States alleged that, from Jan. 1, 2013, through Feb. 28, 2017, SMMC admitted certain patients for whom inpatient care was not medically reasonable or necessary, including patients who were admitted for reasons other than medical status, including social reasons and lack of available alternative placements.

SMMC billed Medicare for such patients despite SMMC’s knowledge that the costs for admitting them were not reimbursable by Medicare.

In connection with the settlement, SMMC entered into a five-year Corporate Integrity Agreement (CIA) with the U.S. Department of Health and Human Services Office of Inspector General. The CIA requires SMMC to engage an independent review organization that will perform annual reviews of inpatient admissions that SMMC bills to federal health care programs.

The civil settlement includes the resolution of claims brought under the qui tam or whistleblower provisions of the False Claims Act by Felix Levy, a former employee of San Mateo County Medical Center.

Under those provisions, a private party can file an action on behalf of the United States and receive a portion of any recovery. The qui tam case is captioned United States ex rel. Levy v. San Mateo County and the San Mateo County Medical Center, C.A. No. 16-CV-5881 (N.D. Cal.).

The resolution obtained in this matter was the result of a coordinated effort between the Civil Division’s Commercial Litigation Branch, Fraud Section; the U.S. Attorney’s Office for the Northern District of California; and the Department of Health and Human Services Office of Inspector General.

The matter was handled by Trial Attorneys Danielle Sgro and Diana Cieslak and Assistant U.S. Attorneys Michael Pyle, Sharanya Sai Mohan and Jonathan Lee, with assistance from Jonathan Birch and Garland He.

The claims resolved by the settlement are allegations only, and there has been no determination of liability ...
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The San Francisco Sheriff’s Association, the union representing officers in the San Francisco Sheriff’s Department, said that many sheriff’s deputies would resign if the department sought to enforce a new coronavirus vaccine mandate.

In a Facebook post on Friday, the union wrote that the city's mandate, which threatens termination for noncompliance, was out of step with Gov. Gavin Newsom’s own mandate, which at least offered regular testing as an alternative:

- - The SFDSA has always promoted Covid-19 Safety and has given out masks as well as face shields to first responders and the public during the peak of the pandemic. We believe the data and science speaks for itself and that masking works.
- - The problem we are faced with now is the strict San Francisco Mandate which is vaccinate or be terminated. If deputy sheriffs are forced to vaccinate a percentage of them will retire early or seek employment elsewhere.
- - The majority of Deputy Sheriffs are vaccinated. Approximately 160 out 700 Deputy Sheriffs are not vaccinated prefer to mask and test weekly instead of being vaccinated due to religious and other beliefs. Currently, the staffing at the SFSO is at the lowest it has ever been due to the past 9-month applicant testing restriction placed on the Sheriff’s Office by the Mayor.
- - San Francisco cannot afford to lose any more deputy sheriffs or any first responders. If they retire early or quit this will affect public safety even more. We would like San Francisco to be in alignment with the state guidelines which are require vaccination or test weekly.

San Francisco already faces a crisis in law enforcement, with petty crime soaring and Mayor London Breed proposing to redistribute $120 million from law enforcement to social programs (the final budget increased police funding, using the city’s general fund to provide the money for alternatives to policing, rather than cutting police funding directly)

And other California employers are facing similar headwinds. Disney revealed its new policy last week requiring employees to be vaccinated. That, however, only applied to salaried, and non-union cast members and not the 38,000 union members who make the bulk of the workforce.

The president of Local 362, which represents many cast members, including those in attractions and custodial, says the six unions making up the Service Trades Council have been negotiating with Disney all week and plan to continue doing so.

And union opposition appears in other states as well. The New York State United Teachers union voiced opposition after Gov. Andrew Cuomo encouraged schools to adopt such requirements ...
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The Division of Workers’ Compensation (DWC) has posted an order adjusting the Physician and Non-Physician Practitioner Services section of the Official Medical Fee Schedule (OMFS) to conform to relevant 2021 changes in the Medicare payment system as required by Labor Code section 5307.1.

The Administrative Director update order adopts the Center for Medicare and Medicaid Services’ revised Medicare Telehealth List posted to the Centers for Medicare and Medicaid website July 19, 2021.

The revised list is adopted for services rendered on or after August 1, 2021. The Order can be found at the DWC OMFS physician fee schedule webpage.

On July 23, 2021, the Centers for Medicare & Medicaid Services (CMS) published its annual proposed changes to the Medicare Physician Fee Schedule (MPFS), which include several key telehealth and other virtual care-related proposals.

The proposals address long-standing restrictions that have historically limited the use of telehealth and virtual care, including geographic and originating site restrictions, and limitations on audio-only care, as well as coverage extensions for some services added during the COVID-19 public health emergency.

These proposals include: - - The implementation of the Consolidated Appropriations Act, 2021 (CAA) in-person visit requirement for mental health services that either do not meet Medicare’s typical geographic restrictions or occur when the originating site is the patient’s home, regardless of geography
- - The ability for certain mental health services to be delivered via audio-only communications when patients are located in their homes (however, in these cases, the provider would also be required to comply with the in-person visit requirement described above)
- - The extension of coverage of the services was temporarily added to the Medicare telehealth services list (Category 3 services) through the end of CY 2023 to allow more time for evaluation, and the rejection of proposed new, permanent Medicare telehealth services
- - The permanent adoption of HCPCS Code G2252 for extended virtual check-ins, which was established on an interim basis in the CY 2021 MPFS.

...
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The Physicians Foundation released the 2021 Survey of America’s Physicians, COVID-19 Impact Edition: A Year Later, that examines how COVID-19 has affected the nation’s physicians more than a year since the start of the pandemic, from increased burnout rates to the continued epidemic of physician suicide.

Over the past year, COVID-19 has greatly impacted physician wellbeing and mental health, with over 6 in 10 physicians (61%) reporting they experienced feelings of burnout.

This is a significant increase from the 40% of reported physicians in 2018. Yet only 14% of physicians reported they sought medical attention for their mental health symptoms.

Additionally, 8% of physicians indicated they have increased their use of medications, alcohol or illicit drugs weekly as a result of COVID-19’s effects on their practice or employment situation.

A total of 46% of physicians said they have isolated or withdrawn from other people in the last year, more than one in three said they felt hopeless or without a purpose, and 57% reported experiencing "inappropriate episodes of anger, tearfulness, or anxiety."

The report stated that "difficult working conditions such as a lack of personal protective equipment (PPE) and caring for patients who may be seriously ill for weeks -- along with burdensome administrative tasks, long hours, and grief over losing patients -- have become the norm, but little has been done to alleviate the heavy mental health toll on physicians."

Additional findings from the 2021 Survey include:

- - A significantly larger proportion of younger (64%) and female (69%) physicians reported frequently feeling burnout as compared to older (59%) and male (57%) physicians.
- - Physicians who were employed by hospitals or health systems experienced more frequent feelings of burnout (64%) as compared to independent physicians (56%).
- - Nearly 8 in 10 physicians indicated they experienced changes to their practice or employment as a result of COVID-19.
- - Almost half of physicians (49%) reported a reduction in income while 32% reported a reduction in staff as a result of the pandemic.
- - Nearly 70% of physicians indicated they anticipate continuing the use of telehealth in their ongoing practice.
- - Despite the high rates of burnout, nearly half (46%) of physicians said they would still recommend medicine as a career option to young people.

A total of 23% of physicians, across a range of demographics, said they want to retire in the next year, a drop from the 38% who reported wanting to retire in 2020 ...
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At least $63 billion in improper payments, much of it fraud, have been distributed by the Federal government since the pandemic struck in March 2020. In California alone, state officials admitted that as much as 27% of unemployment benefits payments may have been fraudulent.

"Unemployment insurance fraud is probably the biggest fraud issue hitting banks today," says Naftali Harris, co-founder and CEO at San Francisco’s SentiLink, which just closed a $70 million round of venture capital to expand its business of helping financial institutions detect fake and stolen identities for new account applications.

According to the report in Forbes, Craft Ventures, a San Francisco-based venture firm, led the Series B round which brings SentiLink’s total capital raised to date to $85 million. Felicis, Andreessen Horowitz and NYCA also joined SentiLink’s latest capital infusion.

SentiLink plans to use the capital raised to continue to help institutions with this recent increase in fraud instances spurred by the CARES Act. They also plan to expand their fraud toolkit to prevent other types of scams, such as "J1 fraud" and "same name" fraud, and investigate new ones.

Harris’ team has seen a huge uptick in fraud rates affecting their clients, as high as 90% among new applications, associated with the CARES Act COVID relief. Fraudsters have been using the same name, social security number or date of birth in several applications, filing in high volumes in several states.

According to Harris, his team is currently verifying around a million account openings per day, and is working with more than 100 financial institutions - due to a non-disclosure agreement Harris could not comment on which financial institutions his company serves.

The company says that beyond simply using artificial intelligence to detect fraud, they have a risk operations team that catches in real time cases of synthetic fraud - a form of identity theft in which the defrauder combines a stolen Social Security Number (SSN) and fake information to create a false identity - that would normally go unnoticed by their clients.

Harris discovered this type of fraud when he was working as a data scientist at Affirm in 2017. At the time, synthetic fraud was relatively unknown, so when he saw that crooks were creating brand new identities instead of stealing existing ones to apply for credit, he founded SentiLink to focus on tackling this new scam. "We realized this was a really big issue and that nobody in the financial services industry was talking about it," says Harris.

Now, criminals are creating new identities or stealing existing ones to tap into unemployment benefits. Harris says the problem is not only them stealing from the government, but uncovering the tactics they use to deposit the stolen funds.

"What a lot of people don’t realize is that as a fraudster you have to be able to use the money stolen, and put it into the financial system," Harris says ...
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