Moses Luna has been practicing workers’ compensation law in California for roughly half a century. On May 12, 2021, the district attorney charged him in an amended complaint with 22 counts of felony insurance fraud pursuant to Penal Code section 550, subdivision (b)(3) (Penal Code section 550(b)(3)). At the preliminary hearing, the district attorney presented evidence Luna opened a side business called Adelante Interpreters in 2011. Although Luna controlled and ran the business, he did not mention that on the incorporation papers. Instead, he listed his daughters as its acting officers. When Luna’s legal clients needed interpreter services in connection with their workers’ compensation claims, he invariably enlisted Adelante for those services. Adelante then made insurance claims for the cost of those services. All told, it received payments totaling over $100,000 from 22 different insurance carriers between 2016 and 2020. The parties stipulated those benefits would not have been paid had the carriers known of Luna’s interest in Adelante. He was bound over for trial at the conclusion of the preliminary hearing. Luna filed a Penal Code section 995 motion to dismiss the information. Luna argued the Williamson rule barred his felony prosecution under Penal Code section 550(b)(3) because his alleged misconduct is specifically addressed in Labor Code section 139.32, which, inter alia, makes it a misdemeanor for workers’ compensation attorneys to refer clients to a business in which they have a financial interest. Luna also argued dismissal was warranted because section 139.32 is unconstitutionally vague, and his conduct falls within the safe harbor provisions of the statute. The trial court concluded the Williamson rule precluded Luna’s felony prosecution under Penal Code section 550(b)(3). Although Luna prevailed on that issue, the trial court rejected his vagueness argument, and it found his safe harbor argument premature because it presented factual issues that needed to be fleshed out at trial. The court then amended the information by interlineation to change all 22 of the felony charges to misdemeanors under section 139.32. However, upon reconsideration, and at the parties’ request, the court vacated its amendments and dismissed the information altogether. The Court of Appeal affirmed the trial court dismissal in the unpublished case of People v Luna -G062297 (December 2023). This appeal turns on the applicability of the Williamson rule, which precludes criminal prosecution under a general statute if there is a more specific statute that applies to the defendant’s conduct. (In re Williamson (1954) 43 Cal.2d 651 (Williamson).) Generally, when the defendant’s conduct violates more than one statute, prosecutors have the discretion to decide which statute to charge under. However, that discretion is not unlimited. Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute. In effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be prosecuted under either statute. The general statute at issue here is Penal Code section 550(b)(3), which makes it unlawful for any person to “[c]onceal, or knowingly fail to disclose the occurrence of, an event that affects any person’s initial or continued right or entitlement to any insurance benefit or payment, or the amount of any benefit or payment to which the person is entitled.” The special statute at issue is Labor Code section 139.32. Under subdivision (b) of the statute, all interested parties in the workers’ compensation system, including attorneys representing injured employees, are required to disclose any financial interest they have in an entity that provides services to an employee. Thus "the rule precludes the prosecution from charging Luna pursuant to Penal Code section 550(b)(3) because his culpability under that general statute hinges on whether he violated section 139.32, a special statute which fits Luna’s alleged misconduct to a tee." Since it was expected the prosecution will charge Luna with violating section 139.32 the Court of Appeal addressed his arguments respecting that prospect. To satisfy due process, a statute must give fair notice of the conduct proscribed and be sufficiently definite to prevent arbitrary and discriminatory enforcement. On the core vagueness question, it agreed with Luna that subdivision (b) of section 139.32 is unconstitutional. The "statute does not provide any guidance as to whom disclosure must be made. Nor does it shed any light on when or how the requisite disclosure must be proffered. These shortcomings make the disclosure requirement both difficult to obey from a defense perspective, and difficult to enforce from a prosecutorial perspective. Since the requirement is susceptible of multiple interpretations and fails to provide reasonable notice of what it entails, we conclude it is too vague to enforce against Luna in this case." While "we strike down subdivision (b) of section 139.32 on vagueness grounds, we see no reason to invalidate the remaining portions of the statute." "The trial court’s order dismissing the felony charges against Luna is affirmed. If the district attorney files misdemeanor charges against Luna under section 139.32, he cannot rely on subdivision (b) of the statute, which is void for vagueness." ...

The CWCI reports that initial data on fiscal year (FY) 2022/23 public self-insured claims experience in the California workers’ compensation system show that public self-insured’s total claim volume, spurred by a sharp drop in indemnity claims, fell 16.8% in the 12 months ending June 30 of this year, which helped drive down public self-insured total incurred losses for the second time since the pandemic hit, while public self-insured total paid losses fell for the first time since the 2012 workers’ comp reforms were implemented a decade ago. The annual summary of public self-insured data issued on December 5 by the Office of Self-Insurance Plans (OSIP) offers the first look at the workers' comp experience of cities, counties, and other public self-insured entities for the 12 months ending June 30 of this year. The summary notes the number of medical-only and indemnity claims filed and the total paid and incurred losses on those claims. Compared to the initial summary from FY 2021/22, the new report shows California's public self-insured work force increased by 3.4 percent to nearly 2.09 million workers last year, with wages and salaries for those workers totaling just under $162 billion. The public self-insured employers reported 120,328 claims last year, 24,348 fewer than the record 144,676 claims in the FY 2021/22 initial report, prompted in part by the influx of COVID-19 claims among public sector employees. The distribution of the $510.3 million in total payments on the FY 2022/23 public self-insured claims at first report shows indemnity payments accounted for $317.1 million, $67.0 million (17.4%) less than in the prior year, while medical payments accounted for $193.2 million, $7.7 million (3.8%) less than in FY 2021/22. However, with far fewer claims last year, that works out to an average benefit payment of $4,241 for the FY 2022/23 claims, 4.9% more than the comparable figure from FY 2021/22. The breakdown of the average payment shows public self-insureds averaged $2,636 in indemnity payments on FY 2022/23 claims, nearly matching the record $2,654 from the prior year’s first report, but average paid medical climbed to $1,605, up 15.6% from FY 2021/22. The first report data on incurred losses (paid amounts plus reserves for future payments) show a slightly different pattern for public self-insured claim costs. Aggregate incurred losses on the FY 2022/23 claims totaled just under $1.54 billion, 8.3% less than the first report total from the prior year. In this case, the one-year decline in total incurred can be completely attributed to the decline in public self-insured claim volume, as unlike the average paid data, where the average indemnity payments were flat, the incurred results showed sharp increases in both the average incurred indemnity (+7.7%) and the average incurred medical (+12.5%), but the combined impact of those increases was not enough to offset the 16.8% reduction in claim volume, which drove the average incurred loss per claim up from $11,608 in FY 2021/22 to $12,309 in FY 2022/23 (+10.0%). OSIP also compiles private self-insured claims data, which is reported on a calendar year basis rather than on a fiscal year basis, so the private self-insured data, which was posted in June, now lags the public self-insured data by 6 months. The next report on private self-insured experience should be released next summer. In the meantime, CWCI has issued a Bulletin that includes exhibits and additional details on the most recent public self-insurer paid and incurred losses, including comparative results from the past decade. Institute members and subscribers may access the bulletin by logging in at www.cwci.org. OSIP's annual summaries for private and public self-insured employers from the past dozen years are posted online. This is a correction to the WorkCompAcademy story published on December 18 which had incorrect data and conclusions. May we thank Bob Young at the CWCI for pointing out our mistake. Our apologies to our readers and the CWCI for our incorrect post ...

On March 3, 2015, six officers in the Whittier Police Department, including Joseph Rivera filed a complaint against the City of Whittier in the Los Angeles County Superior Court. The complaint alleged the police department instituted 'an unlawful citation and arrest quota in violation of California Vehicle Code sections 41600 et seq. on its officers, and illegally compared officers using shift averaging as a means of determining a benchmark for performance." The complaint further alleged the police department "retaliated against those [who] refused to participate in and/or reported the unlawful citation and arrest quota," including, inter alia, "negative language and/or documentation being placed in [plaintiffs’] personnel packages about their refusal to comply with the unlawful quota, unwarranted counseling sessions, unwarranted increased scrutiny, unwarranted transfers, [and] disparaging comments made about them." The City notified Everest National Insurance Company and Starr Indemnity and Liability Company about the Rivera action, advising that the plaintiffs sought damages exceeding $1 million and there was a potential for coverage under the insurers’ policies. Everest issued four public entity excess liability insurance policies to the California Insurance Pool Authority (CIPA), and included the City of Whittier as a named insured and member agency. The policies provided coverage for employment practice liability of $10 million per "wrongful act" in excess of a retained limit of $1 million. The Starr policies provided coverage for employment practice liability of $10 million per "wrongful act" in excess of a retained limit of $1 million. Prior to trial, the City’s counsel notified the insurers of an upcoming mediation session and demanded that they attend. Everest’s and Starr’s coverage counsel attended the mediation, at which the City negotiated a settlement with the Rivera plaintiffs and agreed to pay $3 million to resolve the action. Neither Everest nor Starr consented to the settlement. The City paid the $3 million, and the Rivera action never went to trial or resulted in a judgment. On December 24, 2019, counsel for CIPA and the City tendered the Rivera settlement to Everest and Starr for indemnity under their respective policies. The insurers denied the request for indemnity. The City filed a civil action against Everest and Starr, asserting causes of action for declaratory relief, breach of contract, and bad faith. The insurers each moved for summary judgment, and the City moved for summary adjudication. The insurers contended retaliation claims under Labor Code section 1102.5 can be established only through proof of an employer’s willful acts, and Insurance Code section 533 therefore barred indemnity. Starr argued in the alternative that its policy required indemnification only of "damages" which did not include amounts paid in prejudgment settlement. In its motion, the City contended section 533 did not bar indemnity and therefore the insurers were in breach of the insurance contracts. The trial court agreed with the insurers, after an agreed upon referee found no triable issue existed as to whether the insurers owed the City indemnification of the Rivera settlement. The referee reasoned that section 533 prohibits coverage for loss caused by an insured’s willful act, and whistleblower retaliation under Labor Code section 1102.5 an only be established by evidence of an employer’s motive and intent to violate or frustrate’ California’s Whistleblower laws. The referee granted the insurers’ motions for summary disposition and denied the City’s motion. The trial court adopted the referee’s statement of decision as its own. The Court of Appeal reversed as to Everest in the partially published case of City of Whittier v. Everest Nat. Ins. Co. -B321450M (December 2023). In the unpublished portion of this opinion, the Court of Appeal agreed with Starr’s alternative argument that its specific policy language does not obligate it to indemnify the City for the settlement, and affirmed the judgment as to Starr under Starr’s alternative argument. This appeal presents a question of first impression: whether Insurance Code section 533 under which "[a]n insurer is not liable for a loss caused by the wilful act of the insured," bars indemnification for claims under Labor Code section 1102.5. Labor Code section 1102.5 prohibits, inter alia, retaliation against employees for reporting activity they have reasonable cause to believe is unlawful, or for refusing to participate in activity that actually is unlawful. Section 533 reflects a fundamental public policy of denying coverage for willful wrongs and discouraging willful torts. However the Court of Appeal "found no case in California or elsewhere addressing whether section 533 bars coverage of claims under Labor Code section 1102.5. The trial court and the insurers analogize to B & E Convalescent Center v. State Compensation Ins. Fund (1992) 8 Cal.App.4th 78 and federal district court cases applying it, all of which address retaliation claims in contexts other than Labor Code section 1102.5." Here, the parties rely on jurisprudence, first developed in underlying sexual molestation and assault cases, that equates "willful" with inherently harmful or intentional. The Court of Appeal concluded that not all Labor Code section 1102.5 claims involve necessarily willful conduct, but rather some involve conduct more akin to negligence, the trial court erred when it found to the contrary in granting summary judgment in favor of Everest and Starr. The Court noted "This is an important question whose answer will influence enforcement of our employment laws. How so? Retaliation claims are the most common employment claims in California. For fiscal years 2016 through 2022, retaliation claims of all types were the majority of charges filed in California with the United States Equal Employment Opportunity Commission. (See EEOC, FY 2009-2022 EEOC Charge Receipts for CA.) In 2019, retaliation was the most common basis for right-to-sue requests filed with the California Department of Fair Employment and Housing. (DFEH, 2019 Annual Report, at p. 9.)" And after reading state federal case authorities it went on to say "Given the significant number of retaliation cases in our courts and importance of insurance in resolving those cases and securing compensation for injured employees, we tread carefully in applying the above jurisprudence to a new category of claims." "The employer’s conduct in our scenario is not comparable to that in B & E Convalescent Center, where the employer retaliated against the employee for refusing to engage in activity that was illegal under clearly established law. Although whistleblower protections themselves are clearly established, the illegality of the underlying conduct the whistleblower is resisting may not be." "Doctrinally, the employer’s conduct in our scenario is closer to negligence than intentional misconduct. The employer intends the act - the adverse employment action - but not the consequence - a violation of the employee’s rights under Labor Code section 1102.5, rights that do not become clear until a court has decided the legality of the conduct in which the employee refused to participate." ...

The U.S. Attorneys Office for the Southern District of California announced that Phillips Respironics, a manufacturer of durable medical equipment based in Pennsylvania, has paid $2,471,359.25 to resolve allegations that it violated the False Claims Act by giving kickbacks to sleep laboratories. The Anti-Kickback Statute prohibits paying money or giving goods to induce referrals for medical services or items covered by a federal health care program, such as Medicare, Medicaid or TRICARE. Claims submitted to these programs in violation of the Anti-Kickback Statute give rise to liability under the False Claims Act. The settlement resolves allegations that from 2016 through 2021, Philips RS North America LLC f/k/a Philips Respironics, Inc. provided sleep labs with free masks used to treat and diagnose sleep-related respiratory disorders to induce the labs’ physicians to write referrals or prescriptions for Respironics-brand masks that suppliers would fill and bill to federal health care programs. "Respironics’ improper inducements corrupted the integrity of federal healthcare programs, including the Department of Defense's (DoD) TRICARE program," said Bryan D. Denny, Spec ial Agent-in-Charge of the DoD Office of Inspector General, Defense Criminal Investigative Service (DCIS), Western Field Office. "DCIS will continue to pursue those who defraud or attempt to defraud TRICARE, because those deceptive actions ultimately harm those defending our country and their families." This settlement was the result of a coordinated effort by the U.S. Attorney’s Office for the Southern District of California; the Defense Criminal Investigative Service; the Department of Health and Human Services, Office of Inspector General and Office of Counsel to the Inspector General; the Defense Health Agency Office of General Counsel; the Civil Division of the United States Department of Justice; and the National Association of Medicaid Fraud Control Units. This case was prosecuted by Assistant U.S. Attorney Dylan M. Aste. The claims resolved by the settlement are allegations only, and there has been no determination of liability. The kickback allegations are separate from the ongoing issues surrounding the recall of millions of Philips CPAP machines initiated in June 2021, due to concerns about a toxic sound abatement foam. Approximately 5.5 million CPAP, BiPAP, and mechanical ventilator devices are affected globally, due to concerns about potential health risks associated with the sound abatement foam used in these machines. The specific models and serial numbers involved can be found on the FDA website. The degraded foam can potentially release particles, chemicals, and volatile organic compounds (VOCs) that users can inhale or swallow. These exposures may lead to irritation, inflammation, headaches, chest discomfort, and other respiratory problems. In some cases, more serious risks like lung cancer and other long-term health effects are also a concern. Multiple lawsuits have been filed against Philips in the US and other countries, alleging negligence and harm caused by the defective devices. In September 2023, Philips agreed to a partial $479 million settlement to compensate US patients for financial damages related to the recall. Bellwether trials, intended to set precedents for future lawsuits, are now expected to begin in 2025 ...

In the case of Olson v. California, 62 F. 4th 1206, decided in March 2023 by the Ninth Circuit Court of Appeals, a California-based Uber driver, Nicole Olson, challenged the constitutionality of Assembly Bill 5 (A.B. 5), the California law that redefined many app-based workers as employees instead of independent contractors. WorkCompAcademy reported on this case soon after it was published. A.B. 5, as amended, codified the "ABC test" adopted by the Supreme Court of California in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, 4 Cal. 5th 903 (2018), to categorize workers as employees or independent contractors for the purposes of California Labor and Unemployment Code provisions..However, A.B. 5 exempted a broad swath of workers from the Dynamex presumption. Within a year of its enactment, A.B. 5 was amended by A.B. 170 and A.B. 2257. Both bills exempted even more workers from the Dynamex presumption. Lydia Olson, Miguel Perez, Uber, Inc. and Postmates, Inc. filed a law suit in federal court to enjoin the State of California and the Attorney General of California , from enforcing California Assembly Bill 5 against them. The trial court denied a preliminary injunction, and the plaintiffs appealed. The 9th Circuit Court of Appeals heard argument in that case on November 18, 2020. However, on November 3, 2020, shortly before argument, Proposition 22 was adopted through California’s ballot initiative process. Olson argued that A.B. 5 violated the Equal Protection Clause of the Fourteenth Amendment by creating an exemption for certain app-based businesses, like errand-running and dog-walking, while not exempting ride-sharing and delivery drivers like herself. This, she claimed, constituted unfair discrimination against a specific class of workers. The trial court ruled against her, and she appealed. The 9th Circuit panel held that, even under the fairly forgiving rational basis review, Plaintiffs plausibly alleged that A.B. 5, as amended, violated the Equal Protection Clause for those engaged in app-based ride-hailing and delivery services. Thus, Plaintiffs plausibly alleged that the primary impetus for the enactment of A.B. 5 was the disfavor with which the architect of the legislation - Assemblywoman Lorena Gonzalez - viewed Uber, Postmates, and similar gig-based business models. ng Additionally, it ruled that Plaintiffs plausibly alleged that their exclusion from the wide-ranging exemptions, including for comparable app-based gig companies, could be attributed to animus rather than reason. The district court therefore erred by dismissing Plaintiffs’ equal protection claim. The 9th Circuit panel therefore remanded the case for the district court to reconsider Plaintiffs’ motion for a preliminary injunction, considering the new allegations contained in the Second Amended Complaint. This case was decided and published on March 17, 2023. Subsequently the Attorney General of California filed a Petition for Rehearing on April 28, 2023. The Attorney General argued in it's 62 page Petition that the decision was "a highly unusual departure from this Court’s consistent practice of affording States "wide latitude ... in managing their economies." And went on to provide examples such as "The equal-protection analysis in the panel opinion conflicts with the Court’s recent decision in American Society of Journalists (Am. Soc’y of Journalists & Authors Inc. v. Bonta 15 F.4th 954 (9th Cir. 2021)) - and many other decisions of this Court and the Supreme Court treating rational-basis review as "a paradigm of judicial restraint." Court Docket entries show a flurry of Amicus briefs were then filed by various interest groups arguing positions supporting the Petition for Rehearing including the states of Arizona, Washington, Connecticut, District of Columbia, Hawaii, Illinois, Maine, Maryland, Commonwealth of Massachusetts, Michigan, Minnesota, New Jersey, New York, Nevada, Commonwealth of the Northern Mariana Islands, Oregon and Vermont. On December 18, 2023 The Court of Appeals for the 9th Circuit granted the Petition for Rehearing. The order said "Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opinion is vacated." En banc oral argument will take place during the week of March 18, 2024, in San Francisco, California. The date and time will be determined by separate order ...

A federal grand jury indictment was unsealed charging Jasbir S. Thandi, Sandeep Sahota, and Jaspreet Padda with insurance fraud crimes related to the collapse of Global Hawk Risk Retention Group, an insurance company headquartered in Livermore, California, announced United States Attorney Ismail J. Ramsey, FBI Special Agent in Charge Robert K. Tripp, and San Francisco Division Postal Inspector in Charge Rafael Nuñez. According to the indictment, Thandi 67, of El Sobrante, was the president and treasurer of Global Hawk, The indictment alleges that between 2017 and 2019, Thandi, misappropriated over $19 million in Global Hawk funds, including sending over $1 million to an entity domiciled in the British Virgin Islands, and over $7 million to other outside entities controlled by Thandi. The indictment further alleges that Thandi, Sahota, 47, resident of Concord, and Padda, 40, of Elk Grove, submitted false and fraudulent financial statements to insurance regulators that overstated Global Hawk’s assets by tens of millions of dollars and concealed the misappropriations. Sahota was Global hawk’s vice president and secretary and Padda was the company’s outside investment advisor. Global Hawk’s primary business was providing automobile liability insurance coverage for truck drivers and small trucking companies. In May 2020, after regulators discovered the misappropriation and Global Hawk’s insolvency, Global Hawk was declared insolvent and was liquidated pursuant to a court order. The indictment charges Thandi, Sahota, and Padda with conspiracy to commit insurance fraud, in violation of 18 U.S.C. § 371 as well as two counts of insurance fraud (false statements to regulators), in violation of 18 U.S.C. §§ 1033(a) and 2. The indictment also charges Thandi with two counts of insurance fraud (misappropriation) in violation of 18 U.S.C. § 1033(b). The indictment also charges Thandi with two counts of bank fraud, in violation of 18 U.S.C. § 1344. The indictment alleges that in 2016, Thandi obtained a $6.4 million bank loan based on false representations, and in 2017, obtained another $14.75 million bank loan, also based on false representations. The conspiracy count has a maximum statutory sentence of five years in prison and a fine of $250,000. Each insurance fraud count has a maximum statutory sentence of 10 years in prison (or 15 years if the fraud jeopardized the safety and soundness of an insurer and was a significant cause of such insurer being placed in conservation, rehabilitation, or liquidation by an appropriate court) and a maximum fine of $250,000. Each bank fraud count has a maximum statutory sentence of 30 years in prison and a maximum fine of $1,000,000. For all counts, the court also may order a term of supervised release, fines or other assessments, restitution, and forfeiture, if appropriate. However, any sentence following conviction would be imposed by the court after consideration of the U.S. Sentencing Guidelines and the federal statute governing the imposition of a sentence, 18 U.S.C. § 3553. Sahota was arrested yesterday morning and made an initial appearance before the Hon. Alex G. Tse, U.S. Magistrate Judge for the Northern District of California. Padda was arrested in the Eastern District of California. An indictment merely alleges that crimes have been committed, and all defendants are presumed innocent until proven guilty beyond a reasonable doubt in a court of law. Assistant United States Attorneys David Ward and Abraham Fine are prosecuting the case with assistance from Kay Konopaske, Kathleen Turner, and Kevin Costello. The prosecution is a result of an investigation by the FBI and the United States Postal Inspection Service. Individuals who believe that they may be a victim in this case should contact the United States Attorney’s Office for the Northern District of California’s victim specialists by email at: USACAN.DCVictimAsst@usdoj.gov ...

Retired Workers' Compensation Judge David William "Billy" O'Brien bid a peaceful farewell on December 15th, 2023 at 95 years of age, leaving behind a tapestry of memories woven through his remarkable life. Raised in a humble New Hampshire town, David's journey began at Plymouth Teacher's College in 1950, followed by honorable service in the Korean War's United States Army Counter Intelligence Corps, a testament to his devotion to duty and country. In 1960, David's pursuit of knowledge led him to graduate from the University of San Francisco with a law degree. His legal acumen flourished, establishing him as a distinguished figure in workers' compensation law. For decades, he served as a respected Judge, author and scholar, leaving an indelible imprint on the legal landscape. Beyond his professional achievements, David's magnetic storytelling illuminated every gathering, endearing him to all who crossed his path. His warmth, wisdom, and boundless humor resonated with friends, family, and acquaintances. David is survived by his cherished family, his cherished colleagues and the many friends he made in his life. David's absence leaves a void felt deeply by his community. His legacy as a devoted family man, accomplished legal luminary, and captivating raconteur will endure i n the hearts of those privileged to have shared in his extraordinary life. Professionally he was a member of the California and New Hampshire bars, was admitted to the U.S. District Courts, of New Hampshire and California. He is also a member of the American Bar Association. He served as a Workers’ Compensation Judge with the California Workers’ Compensation Appeals Board, as an Administrative Law Judge with the California Unemployment Insurance Appeals Board, as a Deputy Commissioner of Corporations for the State of California, and as a Senior Counsel for the State Compensation Insurance Fund. He has also devoted many years to the private practice of law as both a defense and plaintiff attorney, serves as an expert witness in civil cases and is a Certified Administrator for Self-Insurance Plans. At 95 he was actively engaged as a partner with the firm of Floyd Skeren Manukian Langevin, LLP at its Westlake Village office. Judge O'Brien is the author of the textbook "California Workers' Compensation Claims and Benefits" as well as a pamphlet entitled "California Workers' Compensation Insurance, Employee Rights and Responsibilities" approved by the Administrative Director for use in educating employees as to their rights and responsibilities in the event of an industrial injury. And he is the author of a second treatise "California Unemployment, Disability and Paid Family Leave Insurance Programs." Contributing authors to these texts are his daughter Bernadette O'Brien Esq., and Brianne Uebelhardt, Esq., who are attorneys with Floyd Skeren, and the firms senior partner John Floyd Esq., Both texts are available by subscription at JudgeOBrien.com ...

Carlos Uribe suffered an industrial injury in September 2010 during his employment with XCEL Mechanical Systems, Inc., and he thereafter filed a workers’ compensation claim. At the time of Uribe’s injury, XCEL was insured for workers’ compensation by Reliance Insurance. Reliance was subsequently declared insolvent and placed in liquidation. CIGA assumed administration of Uribe’s claim. Nearly 20 years after Uribe’s injury, on August 3, 2020 CIGA petitioned to join Zurich in the workers’ compensation proceeding based on a December 17, 2018 report prepared by the WCIRB showing that Zurich provided coverage for XCEL during the policy period from February 1, 2000 through February 1, 2001. On September 1, 2020 the Board ordered Zurich joined as a party defendant, and Zurich subsequently denied liability. The parties arbitrated the issue of Zurich's liability for payments made on Uribe’s claim. The arbitrator denied CIGA’s petition, finding CIGA’s claim that Zurich provided coverage for XCEL with respect to Uribe’s injury was not supported by substantial evidence. Therefore, CIGA was required to continue to administer Uribe’s claim and pay all lawful benefits, without reimbursement from Zurich. CIGA filed a petition with the Board for reconsideration of the arbitrator’s ruling on August 31, 2021.On December 7, 2021, Zurich requesting the Board dismiss it from the proceeding because the arbitrator’s decision had become final. Zurich noted the Board did not act on the petition before the 60-day deadline, and CIGA did not file a petition for review in the Court of Appeal pursuant to section 5950 within 45 days from the date the petition for reconsideration was denied by operation of law. CIGA submitted a reply brief in which it argued the Board retained jurisdiction over CIGA’s petition for reconsideration because the petition had not been forwarded to the Board’s reconsideration unit until October 6, 2021, a month and a half after CIGA filed its petition. The Board failed to act (again) until June 13, 2022. By this time, more than nine months had passed since CIGA had filed its petition for reconsideration. The Board issued an order granting the petition for reconsideration for the purpose of allowing an opportunity for further study of the factual and legal issues (a "grant-for-study" order). Zurich filed a petition for writ of mandate in the Court of Appeal requesting it issue an order directing the Board to rescind its June 13, 2022 order and dismissing Zurich as a defendant. The Court of Appeal issued an order to show cause requesting the Board address the issues raised by Zurich. The Board sought to justify its late decision on the basis its delay was the result of an "administrative irregularity" in the workers’ compensation appeals process that delayed transmission of CIGA’s timely filed petition to the Board. The Court of Appeal rejected the Board's argument and agreed with Zurich in the published case of Zurich Am. Ins. Co. v. Workers' Comp. App. Bd - B321864 (December 2023). Under Labor Code section 5909, the last day for the Board to act on CIGA’s petition was November 1, 2021, the first business day following expiration of the 60-day period. (See Cal. Code Regs. tit. 8, § 10600, subd. (b) ["Unless otherwise provided by law, if the last day for exercising or performing any right or duty to act or respond falls on a weekend, or on a holiday for which the offices of the Workers’ Compensation Appeals Board are closed, the act or response may be performed or exercised upon the next business day."].) The Board relies on an exception to section 5909's 60-day deadline recognized over three decades ago by the Court of Appeal in Shipley v. Workers’ Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104 (Shipley), which found the 60-day deadline was tolled because the claimant diligently inquired into the status of his petition for reconsideration and the Board misled the claimant to believe his petition would be considered once the lost file on his case was retrieved or reconstructed. However the Court of Appeal responded that "Because section 5909 divests the Board of jurisdiction to consider a deemed-denied petition for reconsideration after 60 days has passed, we disagree with the conclusion in Shipley, supra, 7 Cal.App.4th at page 1108 that a petitioner has a due process right to review by the Board after the deadline." "But even if Shipley can be read to apply equitable principles to allow the Board to consider a petition for reconsideration beyond the statutory deadline, the exception must be applied only (1) where a diligent petitioner’s rights were violated due to the fault of the Board (such as a lost petition), and (2) the Board misled the petitioner in a manner that deprived the petitioner of a right to review by the Board or the appellate courts." The Board also argued that "the workers’ compensation appeals process system is inefficient, with petitions electronically filed or submitted to a district office being lost or, as here, the arbitrator failing to submit the arbitration record to the Board." In response the Court of Appeal said "We reject the Board’s assertion it is powerless to address these failures. Nor is the remedy for the Board to ignore the Constitutional mandate in article XIV, section 4 that the Board "expeditiously" determine matters under the Workers’ Compensation Act (§ 3201 et seq.). Petitioners must be diligent-promptly inquiring of the Board as to the status of their petitions and, if the Board does not act within the 60-day time period, seeking review of the deemed-denied petition under section 5950 within 45 days. Had CIGA timely filed a petition for review, it could have obtained judicial review of the arbitrator’s initial decision." The Court of Appeal then held that after 60 days the administrative process is final, and a petitioner has 45 days under section 5950 in which to seek a writ of review of the decision of the workers’ compensation judge or arbitrator by the Court of Appeal or Supreme Court. It therefore issued a writ of mandate directing the Board to rescind its order granting CIGA’s petition for reconsideration and ordering Zurich dismissed as a party defendant from the proceeding ...

The California Civil Rights Department (CRD) announced reaching an approximately $54 million settlement agreement to resolve allegations that Activision Blizzard, Inc., Blizzard Entertainment, Inc., and Activision Publishing, Inc. (Activision Blizzard) discriminated against women at the company, including by denying promotion opportunities and paying them less than men for doing substantially similar work. Under the agreement, which is subject to court approval, Activision Blizzard will take additional steps to help ensure fair pay and promotion practices at the company and provide monetary relief to women who were employees or contract workers in California between October 12, 2015 and December 31, 2020. After more than two years of investigation, CRD filed a lawsuit against Activision Blizzard in 2021 for alleged violations of California’s Equal Pay Act and Fair Employment and Housing Act - key civil rights laws that help protect Californians against discrimination. In the lawsuit filed before the Los Angeles County Superior Court, the department sought relief on behalf of the State of California and a class of women employees and contract workers who allegedly experienced discrimination in compensation, promotions, and other aspects of Activision Blizzard’s workplace. Headquartered in Santa Monica, California, Activision Blizzard is a video game company known for many popular video game franchises played around the world, including "Call of Duty," "World of Warcraft," "Guitar Hero," and "Diablo." Today’s announcement is in addition to measures Activision Blizzard has implemented through a separate 2021 consent decree with the U.S. Equal Employment Opportunity Commission and other proactive recruitment and retention steps as described in the company’s 2022 Environmental, Social, and Governance Report. If approved by the court, the settlement agreement will require Activision Blizzard to: - - Pay approximately $54,875,000 to cover direct relief to workers and litigation costs. Of the total, approximately $45,750,000 will go to a settlement fund dedicated to compensating workers. - - Distribute any excess settlement funds to charitable organizations focused on advancing women in the video game and technology industries or promoting awareness around gender equality issues in the workplace. - - Retain an independent consultant to evaluate and make recommendations regarding Activision Blizzard’s compensation and promotion policies and training materials. - - Continue its efforts regarding inclusion of qualified candidates from underrepresented communities in outreach, recruitment, and retention. Women who worked as employees or contract workers for Activision Blizzard in California between October 12, 2015 and December 31, 2020 may be eligible to receive compensation. At this time, no action is needed by individuals covered under the proposed agreement and additional information will be posted on CRD’s website upon approval by the court. If the court approves the settlement, covered workers will receive further information and updates from a settlement administrator. The settlement announced today comes as a result of the efforts of attorneys in CRD’s Legal Division and at Outten & Golden LLP, with support from CRD investigators ...

Since 2018, the U.S. Department of Labor has seen a 69 percent increase in children being employed illegally by companies. In the last fiscal year, the department found 835 companies it investigated had employed more than 3,800 children in violation of labor laws. As the U.S. Department of Labor’s Wage and Hour Division and Office of the Solicitor continue to find serious illegal employment practices in the meat and poultry processing industries, a California poultry processor and supplier to supermarkets and food distributors has agreed to pay nearly $3.8 million in back wages, damages and penalties after the department found the company endangered young workers recklessly in Southern California. Division investigators found that The Exclusive Poultry Inc. and related companies established by owner Tony Bran employed children as young as 14 years old to debone poultry using sharp knives and operate power-driven lifts to move pallets. The children also worked excessive hours in violation of federal child labor regulations. The company also retaliated against employees for cooperating with investigators by cutting their wages. Bran and The Exclusive Poultry are subject to a consent judgment entered by the U.S. District Court for the Central District of California on Nov. 16, 2023, after an investigation and litigation by the department. The investigation included two poultry plants controlled by Bran in City of Industry and La Puente, California. Investigators found that Bran set up several front companies to employ workers at these plants. Those front companies were Meza Poultry LLC, Valtierra Poultry LLC, Sullon Poultry Inc. and Nollus’s Poultry LLC. The department has also obtained consent judgments against these companies and their owners. The judgments resolve the lawsuit filed by the department based on the division’s findings that, in addition to their unlawful employment of children and retaliation against workers, the employers failed to pay workers their required wages. Specifically, the division determined that Bran, The Exclusive Poultry and their associated companies willfully failed to pay required overtime wages to their employees, paying them either a piece rate or a straight time hourly rate even when they worked 50 or 60 hours per week. Investigators also found the employers failed to maintain required records when they intentionally omitted workers from payroll records. Upon substantiating the child labor and overtime violations, the department’s Office of the Solicitor obtained from the U.S. District Court a temporary restraining order and an injunction to prevent Bran and The Exclusive Poultry from shipping into commerce any "hot goods," in this case, poultry produced in violation of the Fair Labor Standards Act and any goods from a location where the department observed child labor. As directed by the consent judgment, Bran and The Exclusive Poultry must pay $3.5 million in back wages and damages to affected workers. Of that total, $300,000 in punitive damages and $100,614 in back wages will be paid to workers who faced retaliatory conduct. In addition, the employers must pay $201,104 in civil money penalties assessed by the division for the child labor and willful violations. The judgment also requires Bran and The Exclusive Poultry to retain a monitor for three years to ensure future compliance and to show a hiring preference for those workers they fired following the department’s search of the poultry plants. Under that preference, Bran and The Exclusive Poultry must offer these workers employment first before hiring others. The division’s West Covina District Office conducted the investigation and the department’s Office of the Solicitor in Los Angeles filed the complaint and secured the consent judgments. In conducting the enforcement action, the department worked with the Los Angeles County Office of Immigrant Affairs and its community partners, who provided support services to workers, and with the U.S. Marshals, who assisted with the execution of a search warrant at the two poultry processing plants. The department is seeking any current or former employees of The Exclusive Poultry, Meza Poultry, Valtierra Poultry, Sullon Poultry or Nollus’s Poultry who believe they may be owed back wages. These employees should contact the West Covina District Office at (626) 966-0478. The consent judgment is part of the department’s ongoing effort to combat child labor abuses and wage theft in the poultry and meat processing industries. The action follows the division’s investigation of Packers Sanitation Services Inc. and its assessment of $1.5 million in penalties for child labor violations in February 2023. In that case, investigators discovered that the company employed at least 102 children - from 13 to 17 years of age - in dangerous occupations and had them working overnight shifts at 13 meat processing facilities in eight states. In March 2023, the department recovered $353,141 in back wages for 322 workers in Alabama and North Carolina who were denied overtime wages. Between 2020 and 2023, the department obtained judgments against three La Puente poultry processing companies requiring them to pay more than $1.2 million for denying overtime wages to 113 workers deliberately and using intimidation to hide their wage thefts. Investigators are also probing into the death of a 16-year-old worker at a Mississippi poultry plant ...

The Occupational Safety and Health Standards Board just approved an emergency temporary standard on respirable crystalline silica to protect workers from silicosis. The standard will go into effect on December 29, 2023. Cal/OSHA proposed the emergency temporary standard to protect workers in the stone fabrication industry from silicosis. Workers who breathe in silica particles can develop silicosis - an incurable, progressive disease that causes serious and fatal health effects. The workers most at risk are those who cut artificial stone countertops. The California Department of Public Health has identified 95 cases of workers developing silicosis since 2019, 10 of whom have died from the disease. The emergency temporary standard includes important requirements to protect workers engaged in high-exposure tasks such as cutting, grinding, polishing and cleanup of artificial stone containing more than 0.1% crystalline silica and natural stone containing more than 10% crystalline silica. Employers will be required to implement the following new protections when workers perform these tasks: Methods of Compliance Use wet methods without exception. Properly handle all waste materials. Monitor air to confirm respirable crystalline silica levels are below the action level. Do not: Use compressed air. Dry sweep. Allow employees or equipment to move through dust. Rotate employees to reduce exposure. Respiratory Protection Use a full-face, tight-fitting, powered air-purifying respirator (PAPR), or equally protective alternative. Use an organic vapor cartridge for artificial stonework, with certain exceptions. Use a supplied air respirator under certain conditions. Housekeeping Employ safe clean-up methods without exception. Communicating with Employees Ensure training and information is appropriate for the language and literacy of employees. Include text pertaining to permanent lung damage and death in English and Spanish on signs posted at regulated areas. Train employees on symptoms of respirable crystalline silica exposure and how to prevent exposures. Encourage reporting of symptoms of respirable crystalline silica exposure without fear of retaliation. Exposure Assessment Conduct exposure monitoring at least every 12 months to assess the effectiveness of exposure controls. Regulated Areas Conduct all "high-exposure trigger tasks" in a clearly designated area with signage warning of respirable crystalline silica hazards. Imminent Hazards Cal/OSHA must issue an Order Prohibiting Use (OPU) when dry operations are observed. Cal/OSHA may issue an OPU when violations are found related to prohibited activities, respiratory protection, reporting of silicosis and carcinogen reporting. Silicosis Reporting Employers must report employees with confirmed silicosis or lung cancer to Cal/OSHA and CDPH. Healthcare providers contracted by employers to evaluate their employees must report confirmed silicosis cases to Cal/OSHA. Complete details on the emergency temporary standards are posted on Cal/OSHA’s website ...

James Suess, was employed as a police corporal by the City of Pomona. In May 2016, the Pomona Police Department Internal Affairs Unit received a citizen complaint against Suess, filed by Vasken Asadourian, a relative of one of Suess’s neighbors, alleged that Suess assaulted him. On July 9, 2016, Suess’s neighbor, Neshan Boymoushakian, filed another complaint against Suess regarding his harassment of his family. Suess was notified of both complaints and was interviewed during both investigations, and was placed on paid administrative leave pending completion of these investigations. On June 7, 2017, the City served Suess with a Notice of Intent to Terminate on the basis of misconduct including battery, unabated harassment of his neighbor, and dishonesty during his interviews. Suess requested a pre disciplinary meeting with his department, which was held on July 18, 2017. At that meeting, Suess suggested he "suffered physical, mental and emotional trauma’ and need[ed] proper care and treatment." While it was unclear to Pomona Police Chief Paul Capraro whether Suess was suggesting his conduct was the result of a disability, he "did not provide any documentation substantiating [his] alleged disability or request any accommodations related to this incident near the time of incident or early in the investigation." On August 3, 2017, the City notified Suess he was terminated from his employment as a police corporal effective August 4, 2017. The City provided Suess with notice of his right to appeal the decision within 15 days. Suess did not appeal. In April 2017, several months before his termination, Suess filed a workers’ compensation claim based on his involvement in a 2012 officer-involved shooting incident which occurred on February 26, 2012. After a high-speed chase on that date, a suspect pointed a shotgun at Suess and another police officer from a different jurisdiction (West Covina) who pursued the suspect into Pomona. The other officer shot and disarmed the suspect. The suspect was later convicted of attempted murder of Suess and other officers. Suess did not request psychological services at the time. He continued to perform his duties as a police officer until his off duty misconduct led to disciplinary proceedings in 2016. His workers' compensation claim was "denied based on a violation of [the] statute of limitations L[abor] C[ode ]5410, and the lack of current substantial medical evidence." As with his termination, Suess did not appeal the denial of his workers’ compensation claim. In April 2019, twenty months after his termination of employment from the City, Suess filed a disability retirement election application with respondent CalPERS based on posttraumatic stress disorder, among other disabling conditions. CalPERS determined he was "not eligible for disability retirement." Accordingly, on July 22, 2019, CalPERS denied Suess’s application. An ALJ affirmed the denial of his CalPERS claim after an administrative appeal challenging CalPERS’s decision. His petition for a writ of mandate was denied by the Superior Court. And the decision of the trial court was affirmed by the Court of Appeal in the unpublished case of Suess v. California Public Employees Retirement System -G062730 (December 2023). On appeal Suess contends that the ALJ misapplied the Haywood (Haywood v. American River Fire Protection District (1998) 67 Cal.App.4th 1292) and Smith cases (Smith v. City of Napa (2004) 120 Cal.App.4th 194), which Suess argues "were inapposite to this case." The Court of Appeal disagreed. As explained in Haywood, "where, as here, an employee is fired for cause and the discharge is neither the ultimate result of a disabling medical condition nor preemptive of an otherwise valid claim for disability retirement, the termination of the employment relationship renders the employee ineligible for disability retirement . . . ." "Nor are disability retirement laws intended as a means by which an unwilling [-to-faithfully-and-competently-perform] employee can retire early in derogation of the obligation of faithful performance of duty. The pension roll is a roll of honor - a reward of merit, not a refuge from disgrace; and it would be an absurd construction of the language creating it to hold that the intention of the Legislature was to give a life annuity to persons who, on their merits, as distinguished from mere time of service, might be dismissed from the force for misbehavior." In Smith, the appellate court held that a terminated employee may qualify for industrial disability retirement if he or she had a "matured" right to do so before his or her termination for cause. Smith recognized an exception to the rule set forth in Haywood: "[c]onceivably, there may be facts under which a court, applying principles of equity, will deem an employee’s right to a disability retirement to be matured and thus survive a dismissal for cause." But Smith held the disability evidence must be "unequivocal" to constitute a matured right. Suess claims Smith and Haywood are distinguishable because he was "deprived of the ability to present medical evidence of his condition [by] a violation by the City [of] its own policy regarding the provision of professional counseling to officers following an officer-involved shooting." Suess suggests he would have had more compelling evidence of a disabling PTSD condition if the City had adhered to that policy. He also suggests CalPERS "abused its discretion" in denying his application for disability retirement "without obtaining medical evidence available to it from Respondent City of Pomona." The Court of Appeal again disagreed. The ALJ correctly observed in her ruling, "an applicant for disability retirement has the burden of proving . . . that he is entitled to it." (Glover v. Board of Retirement (1989) 214 Cal.App.3d 1327, 1332.) Suess did not establish an unequivocal matured right to disability retirement under Smith where his own testimony indicated he was not incapacitated by the 2012 shooting ...

The Labor Commissioner’s Office collected $1.1 million in wages and penalties resulting from a prevailing wage assessment against general contractor Stronghold Engineering and its subcontractor, Perry Coast Construction, both based in Riverside. The wages collected will compensate 74 workers for underpayment of prevailing wages owed for their time working at the Monterey Conference Center, as well as nearby Portola Plaza in Monterey. California Public Works laws were enacted to protect and benefit workers and the public. The laws guarantee minimum wages on publicly funded projects and provide opportunities for employment to apprentices. "The law requires that workers on construction projects financed with $1,000 or more in public funds must be paid no less than the prevailing wage," said Labor Commissioner Lilia García-Brower. "These workers were cheated out of their hard-earned wages, and contacted my office to hold Stronghold Engineering and Perry Coast Construction accountable for their actions." The Labor Commissioner’s Office opened its investigation in May 2017 after a complaint of public works violation was filed by a worker claiming underpayment of prevailing wages, as well as unpaid overtime and holiday rates, fringe benefits, and travel expenses. The investigation also found that Perry Coast Construction failed to comply with apprenticeship standards or with public works contractor registration requirements. The Labor Commissioner’s Office cited Stronghold Engineering and Perry Coast Construction in October 2020 for underpayment of prevailing wages to 74 workers, liquidated damages and interest on the wages, and training funds. Both the contractor and subcontractor filed a joint request for review in December 2020, but eventually agreed to resolve all claims with the Labor Commissioner’s Office for $1.1 million to be paid to the affected workers, and withdrawing their joint request for review in July 2023. The Department of Industrial Relations’ Division of Labor Standards Enforcement, also known as the California Labor Commissioner’s Office, combats wage theft and unfair competition by investigating allegations of illegal and unfair business practices. All workers employed on public works projects must be paid the prevailing wage determined by the Director of the Department of Industrial Relations, according to the project’s type of work and location. Failure to comply with public works requirements can result in civil penalties, criminal prosecution, or both. Employees with questions about their rights may call the Labor Commissioner’s Office at 833-LCO-INFO (833-526-4636) ...

The U.S. Department of Health and Human Services (HHS), through the Office of the National Coordinator for Health Information Technology (ONC), announced that nationwide health data exchange governed by the Trusted Exchange Framework and Common AgreementSM (TEFCA) is now operational. ONC has led a multi-year, public-private process alongside its Recognized Coordinating Entity®, The Sequoia Project, Inc., to implement TEFCA, which was envisioned by the 21st Century Cures Act. As a result, patients will have increased access to their records, and health care providers and plans can improve their secure exchange of electronic health information. The interoperability framework, called TEFCA, was mandated by the 21st Century Cures Act back in 2016 and was designed to create an infrastructure to enable data sharing between health information networks. The framework provides the policies, procedures and technical standards necessary to exchange patient records and health information between providers, state and regional health information exchanges and federal agencies. "In many ways, I feel like we're watching the Big Bang occur in 2023," said Health and Human Services (HHS) Secretary Xavier Becerra said during an event held at HHS headquarters in Washington, D.C. on Tuesday. Five organizations were officially designated as Qualified Health Information Networks (QHINs) during the HHS event on Tuesday - eHealth Exchange, Epic Nexus, Health Gorilla, KONZA and MedAllies. Those five organizations have gone live with TEFCA exchange, and two others are completing their implementations These designated QHINs can immediately begin supporting the exchange of data under the Common Agreement’s policies and technical requirements. QHINs are the pillars of TEFCA network-to-network exchange, providing shared services and governance to securely route queries, responses, and messages across networks for eligible participants including patients, providers, hospitals, health systems, payers, and public health agencies. QHINs are the pillars of TEFCA network-to-network exchange, providing shared services and governance to securely route queries, responses, and messages across networks for eligible participants including patients, providers, hospitals, health systems, payers and public health agencies. Epic customers, including 498 hospitals, have already pledged to join TEFCA."As of this week, over 200 hospitals and around 3,000 clinics that use Epic plan to be early adopters of this framework," Rob Klootwyk, director of interoperability for Epic Nexus, a subsidiary of Epic,said during the event. "At full rollout, we do expect to help around 2,700 hospitals and 70,000 clinics go live on TEFCA." In a Health Affairs Forefront blog, Micky Tripathi, Ph.D., national coordinator for health information technology and Mariann Yeager, CEO of The Sequoia Project, said TEFCA, going live marks "one of the most important milestones in our nation’s digital health history." "In February 2023 we announced that TEFCA would be operational by the end of the calendar year, and we are delighted to achieve this goal" said Micky Tripathi, Ph.D., national coordinator for health information technology. "This would not have happened without tremendous stakeholder support, considerable investment of resources and expertise by the QHINs, and the hard work of the RCE and ONC staffs." "Designating these first QHINs is just the beginning," said Mariann Yeager, CEO of The Sequoia Project and RCE lead. "Now, we hope to see the rapid expansion of TEFCA exchange as these pioneering networks roll-out the benefits of TEFCA to their customers and members, while additional QHINs continue to onboard." "Collectively, these QHINs have networks that cover most U.S. hospitals and tens of thousands of providers; they process billions of annual transactions across all fifty states. With these QHINs working together under TEFCA, their users will now be able to connect with each other, regardless of which network they’re in," Tripathi and Yeager wrote. Common Agreement Version 2.0, which is anticipated to include enhancements and updates to require support for Health Level Seven (HL7®) Fast Healthcare Interoperability Resources (FHIR®) based transactions, is actively under development and scheduled to be adopted by the QHINs within the first quarter of 2024. Attendees at the 2023 ONC Annual Meeting in Washington, DC on December 14, 2023, will have the chance to hear two plenary sessions providing TEFCA updates. Learn more at oncannualmeeting.com ...

MyNews LA and other media sources report that a Los Angeles jury has awarded $41.49 million to a former nurse who said Kaiser Foundation Hospitals and Kaiser Foundation Health Plan Inc. retaliated against her for complaining about patient safety and quality of care and fired her in 2019 over a minor policy violation. The jury reportedly awarded Maria Gatchalian $11.49 million in compensatory damages, including $9 million for the emotional distress, plus $30 million in punitive damages. "Maria had the courage to speak up about patient safety but Kaiser tried to silence her," plaintiff’s attorney David deRubertis said. "This diligent jury spoke in a loud and clear voice telling Kaiser that it needs to put patients over profits. We hope this verdict will get Kaiser to focus more on patient safety and quality of care and less on the business of medicine." The Los Angeles Times reported that David deRubertis has been lead counsel in single-plaintiff employment settlements totaling almost $55 million, with an average settlement of over $2 million for individual employment cases. In the employment class action arena, deRubertis claims he has secured sizeable confidential pre-litigation resolutions in matters such as #MeToo cases and high-level executive whistleblowing cases. Gatchalian worked for the Woodland Hills Kaiser Permanente Hospital since 1989, first as an NICU registered nurse, then as a Neonatal Intensive Care Unit charge nurse following her promotion in 2006. In their court papers, Kaiser attorneys maintained that the 30-year employee admitted that in 2019 she took off her shoes and socks and placed her bare feet on an isolette, a medical device that holds sick or premature newborn babies. The defense attorneys included a photo of Gatchalian doing so in their court papers. "Plaintiff’s conduct was unacceptable, made even more so by the fact that she was a charge nurse, a leader of the nursing team and a long-term employee who knew better," Kaiser lawyers stated. Having lost confidence in Gatchalian, Kaiser "made the difficult decision to terminate her employment" in 2019, according to the defense lawyers’ court papers. But according to the suit filed in April 2021, Gatchalian raised repeated concerns to management about quality of care and patient safety, mostly stemming from Kaiser’s alleged understaffing. Multiple witnesses said during trial that the facility was undermanned. Gatchalian maintained that Kaiser management repeatedly discouraged her from submitting formal complaints through the normal process, which her attorneys maintained was done so Kaiser could avoid conducting an investigation and taking corrective action. The plaintiff’s lawyers further maintained that Kaiser placed the value of profits ahead of patient well-being. "We stand by her termination and are surprised and disappointed in the verdict," Murtaza Sanwari, senior vice president and area manager for Kaiser Permanente Woodland Hills/West Ventura County, told Becker's Hospital Review in a statement. "Kaiser Permanente plans to appeal this decision and will maintain our high standards in protecting the health and safety of all our patients." We work hard to make Kaiser Permanente a great place to work and a great place to receive care," Mr. Sanwari said. "The allegations in this lawsuit are at odds with the facts we showed in the courtroom." "To be clear, this charge nurse's job was to be a leader for other nurses, ensure the standards of care were followed and to protect the neonatal babies entrusted to our care. She was terminated in 2019 following an incident where she was found sitting in a recliner in the neonatal intensive care unit, on her personal phone and resting her bare feet on an isolette with a neonatal infant inside. Neonatal intensive care units are critical care units designed for critically ill babies most often born prematurely and very susceptible to infections ...

Matthew Vann, a firefighter with the San Francisco Fire Department (SFFD), responded to an emergency on Spear Street between Market Street and Mission Street in the City and County of San Francisco. Louis Yu, a bus driver with the San Francisco Municipal Transportation Agency (SFMTA), then drove a bus through the location of the active emergency. The bus went over a firehose, which became entangled with the bus’s wheels and stretched until it broke off the fire engine it was attached to. When the firehose broke away, it hit Vann's legs, sweeping him off his feet and causing him to slam backwards onto the ground. His helmet flew off, and the back of his head struck the street surface. As a result, he sustained catastrophic injuries, including a traumatic brain injury, a fractured left clavicle, an internal hemorrhage in his right eye, and damage to his throat and vocal chords. On November 4, the City sent Vann a "Notice Regarding Disability Pay/Labor Code section 4850 benefits." The notice stated that the "City and County of San Francisco is handling Van's workers’ compensation claim on behalf of SF Fire Dept.," and that he was receiving workers’ compensation benefits for the injuries he sustained in the November 2, 2020 incident. On November 8, Van filed a form complaint against the City and Yu, alleging causes of action for motor vehicle negligence, general negligence, and negligence per se. The complaint is sparse on detail: it alleges "Defendants negligently operated an SF Muni Coach 8800," before briefly describing how the incident caused appellant’s injuries, and also alleges "Defendants violated [Vehicle Code sections 21707 and 21708]." Defendants filed a demurrer on various grounds, including that the Workers’ Compensation Act (§ 3200 et seq.) provides the exclusive remedy for Vann’s claims against the City as his employer (§§ 3600, subd. (a), 3602, subd. (a)), and against Yu as his co-employee (§ 3601, subd. (a)). The the trial court issued an order sustaining the demurrer to the complaint without leave to amend. The Court of Appeal affirmed the trial court in the published case of Vann v. City and County of S.F. -A165231 (December 2023). Section 3600, subdivision (a) provides that, with exceptions not relevant here, an employer’s liability to pay compensation under the Workers’ Compensation Act is "in lieu of any other liability whatsoever" if specified "conditions of compensation concur . . . ." (§ 3600, subd. (a); Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal.5th 993, 1006.) So, when the statutory conditions for recovery are met, the employer is immune from civil damages liability for on-the-job injuries because workers’ compensation is the injured employee’s "exclusive remedy." (§§ 3600, 3601, 3602, subd. (a).) A parallel exclusive remedy provision is section 3601, subdivision (a), which "prohibits actions against coemployees for injuries they cause when [acting within the scope of their employment.]" (Hendy v. Losse (1991) 54 Cal.3d 723, 730.) As to Yu, Vann asserted he and Yu were not coemployees because (1) Vann was employed by San Francisco Fire Department (SFFD), while Yu was employed by San Francisco Municipal Transportation Agency,(SFMTA), and (2) SFFD and SFMTA are separate legal entities akin to separate businesses within a multiunit corporate enterprise. As to the City, Vann argued there were no facts at that procedural juncture to support the conclusion that the City, as opposed to SFFD, was his employer as a matter of law. His arguments treat the City, SFMTA, and SFFD as three separate legal entities. Bauer v. County of Ventura (1955) 45 Cal.2d 276, 288-289 (Bauer), which both parties cite, is instructive on whether a public entity is independent or a subsidiary of another entity. The Supreme Court rejected the "assumption that the district is a governmental agency separate and distinct from the county," Factors that may be considered in determining if an entity is independent include whether there is "[a]n express statutory declaration that the entity is a body corporate and politic"; whether the entity has "[a] governing body separate from that of the city, county, or district"; or whether it has "[s]tatutory power to own property, levy taxes, or incur indebtedness in its own name." (California Governmental Tort Liability Practice (Cont.Ed.Bar 4th ed. Cal. 2023) § 3.5, citing Bauer, supra, 45 Cal.2d at pp. 288-289; Johnson v. Fontana County Fire Protection Dist. (1940) 15 Cal.2d 380, 385'387; Elliott v. County of Los Angeles (1920) 183 Cal. 472, 474-475; Anaheim Sugar Co., supra, 181 Cal. at pp. 217−220.) The Court of Appeal concluded that additional case authorities and arguments "compels the conclusion that because SFFD and SFMTA are merely parts of the same entity, the City, it is the City that effectively employs both appellant and Yu. It follows that workers’ compensation provides the exclusive remedy for appellant’s claims against the City as his employer (§§ 3600, subd. (a), 3602, subd. (a)), and against Yu as his coemployee (§ 3601, subd. (a)). To the extent appellant attempts to draw an analogy between SFMTA and SFFD and two separate business entities within a multiunit corporate enterprise, such an analogy was rejected in Walker and Colombo. (See Walker, supra, 97 Cal.App.2d at pp. 903-904; Colombo, supra, 3 Cal.App.4th at p. 598.) And we reject it here." ...

The California Attorney General issued a consumer alert reminding Californians of their right to access hospital price information online pursuant to federal regulations that went into effect on January 1, 2021. According to the Attorney General announcement, "a significant number of hospitals, including those in California, have refused to comply. In fact, the regulations were amended in 2022 to increase penalties for noncompliance in response. Recent reports have indicated that many hospitals are still not in compliance. With today’s alert, DOJ strongly urges hospitals to comply with these laws and encourages consumers to assist DOJ's efforts in tracking noncompliance by filing a complaint with the department here." The federal government has strong laws in place to provide healthcare transparency, which includes requiring hospitals to publish online annually the price of all their items and services, such as supplies and procedures, room and board, facility fees, physician professional charges, and shoppable services, such as imaging and laboratory services, medical and surgical procedures, and outpatient clinic visits. In today’s alert, Attorney General Bonta urges Californians seeking medical attention to do their research to learn more about the price transparency information available to them, including: - - A Description of Each Item, Service, or Shoppable Service: This may include any code used by the hospital for accounting or billing purposes. - - Gross Charge: The charge that applies absent any discounts. - - Payer-Specific Negotiated Charge: The discounted rate the hospital has negotiated with a third-party payer, such as your medical insurer.Each charge must be clearly associated with the name of the third-party payer and plan. - - De-Identified Minimum Negotiated Charge: The lowest charge the hospital has negotiated with a third-party payer, including with your medical insurer. - - De-Identified Maximum Negotiated Charge: The highest charge the hospital has negotiated with a third-party payer, including with your medical insurer. - - Discounted Cash Price: The price for those who pay cash. Hospitals that do not provide a cash discount for a shoppable service must provide the gross charge for the service. If a hospital is not complying with these requirements, a complaint can be filed with the Centers for Medicare & Medicaid Services (CMS) here. You may also file a consumer complaint with the California DOJ here. More hospital price transparency information through CMS ...

Dr. Gary Martinovsky graduated from the University of California, Berkeley, as a bachelor of science and from Stanford University as a medical doctor. He completed a residency in anesthesiology and acute care at Stanford School of Medicine, and a postgraduate fellowship in Pain Medicine at the University of California, Davis. He holds board certification in Pain Medicine from the American Board of Anesthesiology. NBC Bay Area reports that Dr. Gary Martinovsky was first arrested on Thursday, March 20, 2014 and charged with insurance fraud and unlawful dispensing of medicine. About half of his patients at the time were injured workers, and investigators claimed he was bilking the California workers’ compensation system. Inspectors for the Alameda County District Attorney’s Office, the agency behind an undercover investigation into Martinovsky, accused him of running a medical mill and using injured workers for his own financial gain. They would claim in court documents that his office billed an insurance company for services he never performed and that Martinovsky had a "cavalier attitude" toward dispensing drugs. But the case against Martinovsky was dismissed in Alameda because it had been filed in the wrong county. Prosecutors then filed a a single felony count for violating Cal. Penal Code § 550(a)(7) (knowingly submitting a claim for a health care benefit not used by, or on behalf of, the claimant) was filed in Contra Costa County Superior Court. During the preliminary hearing, which was not completed, the charge was reduced to a misdemeanor. That case was dismissed after Martinovsky completed a one-year diversion program. He never entered a guilty plea or admitted guilt of any kind. In 2016 Dr. Martinovsky filed a civil rights lawsuit in federal court against the Alameda County District Attorney's Office and an investigators for the Department of Insurance. He alleged that because "of the search of the clinic, and the defamatory statements made by Defendants, word spread quickly through the regional medical community, legal professionals and insurance industry that Dr. Martinovsky had been arrested and charged with felony drug and insurance fraud charges. The effect was immediate and devastating for Plaintiffs’ otherwise spotless reputation and growing medical practice, and caused severe emotional distress". The federal civil rights case was resolved and dismissed with prejudice based upon a stipulation and a settlement between the parties in May 2018 for undisclosed terms. Now, on December 7, 2023, the San Francisco District Attorney Brooke Jenkins announced that a 51 year old Doctor Gary Martinovsky, who lives in San Francisco; and his 68 year old office assistant and mother-in-law, Raisa Rikoshinsky, who lives in San Bruno; and one of the businesses he owns, Integrated Pain Care (IPC), have been criminally charged with 40 violations of insurance fraud under (PC 550(a)(5), PC 550(a)(7), and PC 550(a)(8)), for fraudulent billing, double billing, and billing for services not rendered. Gary Martinovsky MD is listed as a QME in Anesthesiology, and also in Pain Managment. DWC Medical Unit records reflect 10 Northern California Offices for each specialty, or a total of 20 addresses. According to the California Department of Industrial Relations, Dr. Martinovksy has 3,005 liens worth $29,443,467 outstanding as of October 2023. As alleged in court documents in this newest case, Dr. Martinovsky, IPC, and Raisa Rikoshinsky allegedly filed liens with the State of California Division of Workers Compensation asking for payment of bills which had already been paid in full or in part. California’s Workers Compensation law allows a doctor to file a lien against an insurance provider for payment for services rendered to an injured worker, where the bill has not been paid. In support of the filed liens, prosecutors allege the defendants submitted fraudulent documents and/or failed to disclose that they had already received payments for the billed services. In addition, Dr. Martinovsky and IPC billed three insurers for services not rendered, by claiming $625 numerous times for services not provided to injured workers. In terms of number of liens filed from 2022 to the present, prosecutors claim Integrated Pain Care was second in the State of California only to the Employment Development Department, the state agency that administers California’s Unemployment Insurance, Disability Insurance, and Paid Family Leave programs and maintains records for more than 19 million workers. Dr. Martinovsky and Ms. Rikoshinksy are scheduled to be arraigned on January 12, 2024, at 9A in Department 10 at the Hall of Justice. If convicted of all charges, Dr. Martinovsky and Ms. Rikoshinsky each face over five years in State Prison. This case was developed through an investigation conducted by the San Francisco District Attorney’s Office Economic Crimes Unit, with the California Department of Insurance assisting in the arrests. Although charges have been filed, this remains an active investigation. Anyone with information is asked to call the San Francisco District Attorney’s Investigations Tip Line at 1-628-652-4362. You may remain anonymous ...

Google has reached a $27 million settlement with its California employees who accused the tech giant of unfair labor practices, setting a record for the largest agreement of its kind, according to California state court documents. The settlement covers individuals who worked at Google and Alphabet from Oct. 16, 2015, to Sept. 15, 2023, excluding temporary employees, vendors, or contractors and those of senior vice president positions or higher. In the December 4 settlement approval order, the trial court granted attorneys’ fees of $9 million to plaintiffs’ counsel Outten & Golden LLP and Baker Curtiz & Schwartz PC. Named plaintiffs John Doe and DeWayne Cassel each will receive $20,000 in incentive awards with $10,000 each to Paola Correa and David Gudeman. The net $17.66 million settlement will be split with 75% going to the California Labor and Workforce Development Agency and 25% to the class. Each of the 96,939 aggrieved employees receives a fixed payment of $20 and a max payment of $79 depending on pay periods, the plaintiffs said in a supplemental filing. The settlement is effective Feb. 3. Plaintiffs in this case alleged that Google, Inc. and Alphabet, Inc., and Adecco USA, Inc. require their employees to comply with various confidentiality policies. John Doe, David Gudeman, and Paola Correa, who were current and former Google and Adecco employees, sued Google and Adecco under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.), alleging the employers’ confidentiality policies restricted their employees’ speech in violation of California law. The trial court sustained defendants’ demurrers without leave to amend, concluding plaintiffs’ claims were preempted by the National Labor Relations Act (NLRA or Act) (29 U.S.C. § 151 et seq.) under San Diego Bldg. Trades Council v. Garmon (1959) 359 U.S. 236, 244-245 (Garmon). In September 2020, the California Court of Appeal reversed the trial court in the published case of Doe v. Google, Inc., 54 Cal. App. 5th 948. It held that the claims fall within the local interest exception to Garmon preemption and may therefore go forward. Plaintiffs’ third amended complaint alleged 17 causes of action under PAGA based on defendants’ confidentiality policies. Plaintiffs’ confidentiality claims fall into three subcategories; restraints of competition, whistleblowing, and freedom of speech. In their competition causes of action plaintiffs alleged that Google’s confidentiality rules violated state statutes by preventing employees from using or disclosing the skills, knowledge, and experience they obtained at Google for purposes of competing with Google. For example, the policies prevented Googlers from disclosing their wages in negotiating a new job with a prospective employer, and from disclosing who else works at Google and under what circumstances such that they might be receptive to an offer from a rival employer. Plaintiffs’ whistleblowing causes of action alleged that Google’s confidentiality rules prevent employees from disclosing violations of state and federal law, either within Google to their managers or outside Google to private attorneys or government officials. (See Bus. & Prof. Code, §§ 17200 et seq.; Lab. Code, § 1102.5.) They also allege the policies unlawfully prevent employees from disclosing information about unsafe or discriminatory working conditions, or about wage and hour violations. In their freedom of speech claims, plaintiffs alleged that defendants’ confidentiality rules prevent employees from engaging in lawful conduct during non-work hours and violate state statutes entitling employees to disclose wages, working conditions, and illegal conduct. The 2016 lawsuit was among the first glimpses of employee activism that swept through the tech industry over the past seven years. It stemmed from the termination of a worker at Google-owned Nest, who was fired for posting complaints about the company’s management on Facebook. In the years that followed, Google, Facebook, Netflix and others faced employee walkouts, whistleblowers, and public letters, which led to firings, town halls, and revamped policies as tech companies grappled with how to contend with increasingly vocal staff. The California Labor and Workforce Development Agency submitted comments regarding the proposed settlement agreement in this action in response to the Court’s invitation. The Agency told the court the $27 million settlement in this action "is the largest PAGA-only settlement, and second largest civil penalty recovery, in a PAGA action to date." And the agency went on to say "to our knowledge this is the first PAGA case which has obtained remedies of this nature, which clearly further labor law enforcement. And undoubtedly, as Plaintiffs state, 'knowledge of this $27,000,000 PAGA settlement against Google should serve to deter Alleged Speech Restrictions by other employers.' " ...

A South Bay woman has been sentenced to 180 months in federal prison for billing Medicare more than $24 million by submitting fraudulent claims for medically unnecessary durable medical equipment - mostly power wheelchairs (PWC) - and PWC repairs, many of which were never performed, the Justice Department announced today. Tamara Yvonne Motley, 55, a.k.a. "Tamara Ogembe," of Redondo Beach, was sentenced Tuesday by United States District Judge Stanley Blumenfeld Jr., who also ordered her to pay $13,107,422 in restitution as well as an additional $2,300 in special assessments. At the conclusion of a five-day trial, a jury on June 27 found Motley guilty of 20 counts of health care fraud, two counts of aggravated identity theft, and one count of conspiracy to commit money laundering. Judge Blumenfeld ordered her remanded into federal custody that same day after the verdict was read. From July 2006 to August 2014, Motley was the de facto owner of the Hawthorne-based Action Medical Equipment and Supplies. From January 2013 to November 2016, Motley was the de facto owner of the Ventura-based Kaja Medical Equipment & Supply. Both companies were enrolled with Medicare in the names of Motley’s out-of-state relatives. Motley orchestrated a scheme in which she paid marketers for patient referrals and then directed them to take patients to corrupt physicians, who prescribed medically unnecessary durable medical equipment, such as PWCs, that Motley’s companies used to submit fraudulent bills to Medicare. In January 2011, when Medicare changed the reimbursement rules for PWCs to make the upfront payments less lucrative to suppliers, Action switched to billing Medicare for PWC repairs, and continued that scheme at Kaja once Action was shut down. These repairs were not medically necessary not only because the patients did not need the PWCs to begin with, but also because those repairs were not needed to make the PWCs serviceable in any event and often were never performed. These repairs were expensive - often billed for $3,000 to $4,000 each - and accounted for nearly half of Action’s billings and almost all of Kaja’s. Over an eight-year period, Action billed Medicare more than $18.2 million for DME - most for PWCs, but also for PWC accessories, knee braces and back braces - and the repair or replacement of PWCs. Medicare paid Action nearly $10.3 million. Between July 2013 and November 2016, Kaja billed Medicare $6.3 million, primarily for PWC repairs. Medicare paid Kaja approximately $2.8 million for those claims. "[Motley] manipulated those around her to serve her criminal ends," prosecutors argued in a sentencing memorandum. "She used relatives and employees to conceal her role in the scheme, and even used her infant’s caretaker to carry out the illegal activities of her scheme. She took advantage of vulnerable Medicare beneficiaries in far-flung places like Calexico who were elderly and often non-English speaking. She deceived inspectors to preserve her companies’ accreditation with Medicare." Two other defendants were convicted in this case: - - Cynthia Karina Marquez, 48, of Paramount, who worked as an office manager at both Action nd Kaja, pleaded guilty in December 2019 to two counts of making false statements affecting a health care program. She received a time-served sentence, was placed on supervised release for three years, and was ordered to pay $9,886,646 in restitution. - - Juan Roberto Murillo, 47, of Montebello, who worked at both medical supply companies as a repair technician, pleaded guilty in November 2019 to one count of conspiracy to commit money laundering. He was sentenced to three years’ probation and was ordered to pay $2,504,119 in restitution. The United States Department of Health and Human Services, Office of Inspector General; the FBI; and the California Department of Justice investigated this matter.Assistant United States Attorneys Kristen A. Williams of the Major Frauds Section and David H. Chao of the General Crimes Section prosecuted this case ...