Omaha National Group Inc., offers AM Best A- (Excellent) rated workers’ compensation coverage through more than 2,500 agencies. Since its marketing launch in 2017, the company has grown to more than 250 employees and is approaching $200 million of in-force premium. Omaha National announced that it has acquired Sutter Insurance Company, a California domiciled insurance carrier that has been renamed Omaha National Casualty Company. Omaha National also owns Omaha National Insurance Company, which is domiciled in Nebraska. "The acquisition of a carrier licensed in California, which is our largest market, is a major step forward in operating as a national full-stack carrier," CEO Reagan Pufall said. "Since inception, our plan has been to combine strong growth with exceptional underwriting results and that’s what we’ve achieved. We’re approaching $200 million in-force premium while at the same time our loss ratio, including allocated loss adjustment expenses, has been below 60% every year we’ve been in operation." "We are now licensed to issue policies in 37 states and continue to expand toward nationwide coverage," Omaha National General Counsel Jim Hempel said. "We enjoy excellent relationships with our fronting partners but writing on our own paper immediately enhances our underwriting results and allows us to better serve our policyholders and broker partners." In another milestone, Omaha National is now implementing Oncore Underwriting, the company’s proprietary underwriting and policy management application. "One of our core strategic principles is that we design and develop our own operational software entirely in-house," said Bryan Connolly, Omaha National’s Chief Operating Officer. "When we implemented Oncore Claims in 2021 it generated remarkable improvements in our claims results, and we expect Oncore Underwriting to have a similarly profound impact. When Oncore CRM is implemented in 2025 all key functions within the company will be performed within a single proprietary application." ...

Former chiropractor Peyman Heidary owned and oversaw a network of medical clinics to generate fraudulent billings to workers’ compensation and insurance carriers. As a non-attorney, he also allegedly controlled the day-to-day operations of various law firms, including California Injury Lawyers.He allegedly controlled or directed hiring and firing, legal decision making, and income flow to and from the law firm. Codefendants Cary Abramowitz, a lawyer, and Ana Solis allegedly assisted Heidary in these operations. Heidary also allegedly formed and controlled several health clinics in Southern California. Each was staffed by front and back room support staff for scheduling and basic medical services . Included were chiropractors operating as primary treating physicians, allegedly providing blanket, cookie-cutter services to each patient at Heidary’s direction and making as many medical specialist referrals as possible. Despite their qualifications, they also wrote medical legal reports using Heidary’s templates, the most expensive report in workers’ compensation. Medical doctors, or specialists, allegedly provided blanket treatment and medlegals on Heidary’s orders. Billings were made in each provider’s name, and payments were made to their accounts. However, Heidary required fee-splitting and he was the only one allowed to withdraw funds. Heidary also had the doctors sell their accounts-receivables (AR) to him, which he then sold to third parties. Under the alleged fraud scheme, injured workers appeared at the law firm, which would fill out boilerplate paperwork and, on Heidary’s order, direct the workers to one of his clinics to begin treatment. At the clinic, the workers underwent treatments, regardless of need, such as massage, chiropractic, acupuncture, psychiatric and other services. After the maximum number of visits, they were discharged regardless of medical status. A Riverside County grand jury returned an indictment against Heidary and his codefendants Cary Abramowitz, Ana Solis, and Gladys Ross. The criminal defendants filed a demurrer, and later a motion to dismiss this indictment, challenging in part whether they had received notice of the charges and whether the indictment improperly aggregated multiple acts into single counts. The trial court denied both requests. Heidary appealed. The Court of Appeal summarily denied the petition on August 8, 2017. On October 11, 2017, the California Supreme Court intervened directing the Court of Appeal to address these issues. After this ordered review, the trial court ruling was affirmed by the Court of Appeal in the published case of Heidary v Superior Court. Heidary, is described in court records as a chiropractor and suspected architect of a "massive, fully integrated criminal enterprise" designed to commit workers’ compensation insurance fraud. According to the indictment, Heidary went by the aliases Brian Heidary, Number One and The Godfather. Heidary owned or ran numerous businesses, including law firms and health clinics, and relied on other people to disguise his involvement and create a complex and illegal ownership structure, according to court records. The criminal activity dates back to at least 2009, according to investigators. Heidary was originally charged in July 2014, but an indictment filed in Riverside County Superior Court expands the case and named new co-conspirators. Heidary was convicted by a Riverside County jury in January 2024 of 68 counts of insurance fraud, conspiracy, money laundering, and various other charges. Although originally charged with $98 million in fraud, evidence presented at trial, including Heidary’s testimony, revealed that the actual damage was about $150 million. During the sentencing hearing on April 12, 2024, Judge Charles Koosed noted that Heidary possessed deep knowledge of the workers’ compensation system, stating, "’[Heidary] took advantage of that knowledge based on greed." On April 12, 2024, Heidary was sentenced to 54 years, eight months in state prison and ordered to pay more than $23 million in fines for his role in orchestrating a massive workers’ compensation fraud scheme totaling $150 million. "The California workers’ compensation system is designed to help injured workers get back on their feet without ruining them financially," said Riverside County District Attorney Mike Hestrin. "Sophisticated criminals like Mr. Heidary don’t just steal money, they take advantage of innocent patients. The sentence handed down today sends a strong message that these types of offenses will not be tolerated in Riverside County." Heidary used the sham law firm to recruit thousands of legitimately injured patients, referring them to his network of clinics to create unnecessary billing. One of the injured workers, Denise Rivera, slipped and fell while working as a certified nurse assistant for special needs children. Ms. Rivera testified that she was recruited into Heidary’s scheme, but never received any effective treatment. "[Heidary’s employees] released me," Rivera told jurors. "They told me - basically I was okay. My knee was okay." When asked during the trial if her knee actually was OK, she simply responded, "No." ...

In 2022 the United States Supreme Court issued its opinion in Southwest Airlines Co. v. Saxon, 142 S. Ct. 1783 (2022), a closely watched employment law case involving arbitration clauses in employment contracts. The opinion was a divergence from the Court’s tendency in recent years to favor arbitration. Instead of a company or industry wide exemption for mandatory arbitration, courts must instead use a fact-specific test focused on actual job duties of employees. In the 2022 case, Latrice Saxon, was a ramp supervisor for Southwest Airlines at Chicago Midway International Airport. SCOTUS ruled that Saxon belongs to a "class of workers engaged in foreign or interstate commerce" to which the Federal Arbitration Act §1’s exemption applies. However, the Supreme Court rejected the contention that all airline workers are exempt from the FAA and instead used a fact-specific test focused on actual job duties. California is home to over 1.5 million transportation workers. Of these workers, about 312,080 are truck drivers in a variety of industries, and many of these workers are directly related to the movement of goods, even if they do not directly work for a trucking company. For these many California transportation workers, this week's unanimous United States Supreme Court decision in the case of Bissonnette v. LePage Bakeries Park St., LLC, et al., clarified the scope of the exemption under the FAA will have a substantial impact on employment law litigation with many of these transportation workers. . In this new case SCOTUS reversed the Court of Appeals for the Second Circuit and held that transportation workers do not need to work in the transportation industry to be exempt from the Federal Arbitration Act’s (FAA) arbitration requirements. The employer in this case is Flowers Foods, Inc., is a multibillion-dollar producer and marketer of baked goods. that are distributed nationwide. It is the second-largest producer and marketer of packaged bakery foods in the United States It employs approximately 9300 workers. One of its flagship products is Wonder Bread, Flowers also makes and markets other baked goods such as tortillas, bagels, Butterscotch Krimpets, and Jumbo Honey Buns in more than 40 bakeries located in 19 States. From there, these products are distributed across the country. Some of its subsidiaries use a direct-store-delivery" system in which franchisees buy the rights to distribute Flowers products in particular geographic territories. Those distributors purchase the baked goods from Flowers and then market, sell, and deliver them to retailers. Neal Bissonnette and Tyler Wojnarowski were franchisees who owned the rights to distribute Flowers products in certain parts of Connecticut. Flowers baked the bread and buns and sent them to a warehouse in Waterbury. Bissonnette and Wojnarowski picked them up and distributed them to local shops. They allegedly spent at least forty hours a week delivering Flowers products in their territories. But their jobs extended beyond carrying the products from Point A to Point B. They also found new retail outlets, advertised, set up promotional displays, and maintained their customers’ inventories by ordering baked goods from Flowers, stocking shelves, and replacing expired products. To purchase the rights to their territories, Bissonnette and Wojnarowski signed Distributor Agreements with Flowers. Those contracts incorporate separate Arbitration Agreements that require "any claim, dispute, and/or controversy" to be arbitrated under the Federal Arbitration Act. In 2019, Bissonnette and Wojnarowski brought a putative class action claiming that Flowers had underpaid them in violation of state and federal law. Flowers moved to dismiss or to compel arbitration under the FAA, arguing that the contracts required the distributors to arbitrate their claims individually. The District Court dismissed the case in favor of arbitration. The Second Circuit Court of Appeals affirmed on the aground that Bissonnette and Wojnarowski" are in the bakery industry" and not the transportation industry. And under Circuit law, the panel explained, §1 of the FAA exempts only " 'workers involved in the transportation industries.' " A month after the Second Circuit decided the appeal in Flowers, SCOTUS decided Southwest Airlines Co. v. Saxon, 596 U. S. 450 (2022). In that case, SCOTUS determined that a ramp supervisor who "frequently load[ed] and unload[ed] cargo" from airplanes belonged to a "class of workers engaged in foreign or interstate commerce." Id., at 463. It held that a "class of workers" is properly defined based on what a worker does for an employer, "not what [the employer] does generally." Id., at 456. The Second Circuit granted panel rehearing in the Flowers case - in light of Saxon - but adhered to its prior decision. In the present Flowers case, SCOTUS again was asked to consider the scope of the FAA §1 exclusion clause as it did in Saxon, where it expressly declined to adopt an "industry wide" approach of the sort Flowers advances here. It concluded "A transportation worker need not work in the transportation industry to fall within the exemption from the FAA provided by §1 of the Act. The Second Circuit accordingly erred in compelling arbitration on the basis that petitioners work in the bakery industry." "In other words, any exempt worker 'must at least play a direct and ‘necessary role in the free flow of goods’ across borders.- 596 U. S., at 458 (quoting Circuit City, 532 U. S., at 121). These requirements "undermine[] any attempt to give the provision a sweeping, open-ended construction," instead limiting §1 to its appropriately "narrow" scope. Id., at 118. * * "The judgment of the Second Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion." ...

Kent Bo Fridolfsson, 67, of Benicia, pleaded guilty to six charges of insurance fraud and grand theft after a joint investigation with the California Department of Insurance, Solano County District Attorney’s Office and the Employment Development Department (EDD) revealed he underreported payroll by nearly $1 million to illegally save on workers’ compensation insurance and taxes. Fridolfsson was placed on formal probation, ordered to pay over $725,000 in restitution, and ordered to surrender his contractor’s license. The joint investigation began after one of Fridolfsson’s employees sustained a work-related injury and contacted State Compensation Insurance Fund (State Fund), who provided insurance coverage to Fridolfsson’s business. Fridolfsson was the former president and owner of the construction company Diversified Specialists and had been a licensed contractor in California since 1986. Fridolfsson had insurance coverage with State Fund from 2010 to 2021 and was required to report payroll during each policy period. From 2010 to 2019 Fridolfsson reported zero payroll to State Fund; however, in January 2019 one of his employees contacted State Fund after sustaining a work-related injury. After being contacted by State Fund, the Contractors State License Board conducted a site inspection of Fridolfsson’s business and interviewed a number of his employees. The joint investigation found that Fridolfsson underreported his payroll by $989,823. The failure to report employee payroll resulted in the illegal reduction of workers’ compensation insurance premiums, leading to approximately $382,104 in premium owed to State Fund. The underreported payroll also resulted in an unpaid payroll tax to Employment Development Department of approximately $347,520. Fridolfsson was convicted on April 5, 2024. This case was prosecuted by the Solano County District Attorney’s Office ...

The final two members of a massive conspiracy to bilk TRICARE, the military’s healthcare program, out of more than $65 million have been sentenced in federal court. Former U.S. Marine Joshua Morgan and former U.S. Navy Sailor Kyle Adams were sentenced to 21 months and 15 months, respectively, and ordered to pay millions in restitution and forfeit the fruits of their criminal activity. Morgan and Adams have admitted that they recruited fellow servicemembers and their dependents to receive expensive prescription compounded drugs, while others in the conspiracy wrote bogus prescriptions and filled out duplicitous paperwork to process fraudulent insurance reimbursements, resulting in at least $65 million in losses to TRICARE. Both the defendants were working for Jimmy and Ashley Collins, a married couple living in Birchwood, Tennessee, who quarterbacked the scheme. Jimmy Collins received a 10-year prison sentence; Ashley Collins was sentenced to 18 months in home confinement. To account for all the fraud, the couple was ordered to pay $65,679,512.71 in restitution to Defense Health Agency and TRICARE. Other patient recruiters, including Daniel Castro, Jeremy Syto and Bradley White were previously sentenced to custody. According to plea agreements, the servicemembers that Morgan and Adams recruited agreed to receive the pricey compounded medications in return for a monthly kickback of approximately $300. For young Sailors and Marines-turned-straw-beneficiaries, this money was equivalent to a significant portion of their monthly paycheck. Morgan noted that “it took very little work to sign people up to receive free money.” For recruiting bogus patients, defendants Morgan and Adams were paid an illegal kickback of between 3 and 7 percent of the total TRICARE reimbursement paid to the pharmacy for the drugs sent to their recruits. By the time this fraud scheme was in full swing, the average cost for these compounded drugs was over $13,000 for a 30-day supply, peaking at around $25,000 for individual drugs. Over the course of the conspiracy, those illegal kickbacks amounted to at least $2,633,942.69 for Morgan, which, in recognition of his role as the top-level recruiter in this multi-level marketing scheme, was more than twice as much as the next nearest patient recruiter. Meanwhile, Adams earned more than $1 million for his efforts. To fund these kickbacks, based on false pretenses and representations, TRICARE paid at least $11,490,654.00 in insurance reimbursements for compounded medications prescribed to straw beneficiaries directly recruited by defendant Adams. During the same period, TRICARE paid at least $4,418,709 for compounded medications prescribed to straw beneficiaries directly recruited by defendant Morgan, although that amount underrepresents the severity of his criminal conduct due to his role as a top-level recruiter responsible in part for the losses to TRICARE caused by various sub-recruiters. The doctors, Carl Lindblad and Susan Vergot, and a nurse practitioner, Candace Craven, who wrote the fraudulent prescriptions and filled out other duplicitous paperwork, were previously sentenced. The pharmacy that filled the fraudulent prescriptions, CFK, Inc., also previously pleaded guilty. According to the pleadings, the sharp increase in the number of bogus prescriptions for compounded drugs was the result of multiple fraud schemes, including this one, that popped up around the country. As a result, the TRICARE program faced a $2 billion explosion in liability for compounded prescription drugs. During the course of the investigation, authorities seized numerous items and properties purchased by the Collinses and others with the proceeds of the fraud, including an 82-foot yacht; multiple luxury vehicles, including two Aston Martins; a multimillion-dollar investment annuity; gold and silver bars; cashier’s checks; dozens of pieces of farm equipment and tractor-trailers; and three pieces of Tennessee real estate. “NCIS will not stand by as individuals shamelessly attempt to disrupt the lives of those who have and continue to serve our country, and steal from what they rightfully earned,” said Director Omar Lopez, Naval Criminal Investigative Service. “This case highlights NCIS’ investigative capabilities and our commitment to collaborate with our law enforcement partners in detecting and dismantling these criminal acts of fraud.” “Today’s sentencing demonstrates the Defense Criminal Investigative Service’s (DCIS) unwavering commitment to hold accountable those individuals who commit TRICARE fraud and imperil our military healthcare system,” said Kelly Mayo, Director DCIS. “The outstanding work of the investigative team ensured the perpetrators were held criminally accountable. I want to thank the U.S. Attorney’s Office and the Naval Criminal Investigative Service for their continuing dedication to the pursuit of justice.” ...

NuSil Technologies manufactures silicone and resins. NuSil utilized hazardous chemicals in the production and manufacture of products at its facility in Bakersfield, California. NuSil posted material safety data sheets with information about dangerous chemicals used at the facility. Kevin O’Bryan worked for NuSil from 2006 to May 2016 at its facility in Bakersfield. O’Bryan’s work duties necessitated exposure to hazardous chemicals. NuSil provided training to O’Bryan about the chemicals he worked with and the use of personal protective equipment. Those trainings did not address formaldehyde. None of the material safety data sheets provided by NuSil mentioned formaldehyde. In 2009, O’Bryan expressed concern to his supervisor about being exposed to chemicals. Around 2011 or 2012, O’Bryan again expressed concern about exposure to chemicals and was issued a full-face respirator. In 2013, O’Bryan’s doctor diagnosed him with “problems” that caused O’Bryan to be concerned about his workplace exposure. Around 2013, O’Bryan complained to the manufacturing supervisor about swelling and numbness in his hands, as well as extreme fatigue. At some time between 2013 and May 11, 2016, O’Bryan complained to the site manager, that he believed formaldehyde was being generated by the distillation column on process at the facility. O’Bryan assumed there was formaldehyde because the smell was like “at the mortuary. On May 11, 2016, O’Bryan took a disability leave of absence from work due to health symptoms he attributed to chemical exposure in the workplace at NuSil.O’Bryan filed a workers’ compensation claim against NuSil on June 27, 2016, alleging a cumulative trauma injury through May 10, 2016, to his hands, head, joints, respiratory system, central nervous system, and circulatory system from “exposure to toxic chemicals.” At some point, O’Bryan filed a complaint about NuSil to California’s Division of Occupational Safety and Health. In its report, OSHA cited NuSil based on its finding that employees worked with formaldehyde in manufacturing rooms at the facility. O’Bryan was unaware of the presence of formaldehyde at the facility prior to OSHA’s report and learned of the presence of formaldehyde in approximately “May[ or] June” of 2017. On September 18, 2018, O’Bryan settled his workers’ compensation claim for $235,000 by compromise and release which "does not resolve (or affect) any civil action (or right) applicant (may bring forth against NuSil) regarding this claim." On January 17, 2019, the O’Bryans filed a complaint against NuSil alleging two causes of action: fraudulent concealment on behalf of O’Bryan and loss of consortium on behalf of Tiffany O’Bryan. NuSil raised several affirmative defenses in its answer including that the claims were barred by the statute of limitations. The parties stipulated and the trial court agreed to bifurcate the issues and try NuSil’s statute of limitations defense in a bench trial before trying the remaining issues. On July 1, 2022, “[p]hase 1” of the bench trial was conducted on the sole issue of the statute of limitations.The O’Bryans’ counsel conceded during closing argument that the applicable statute of limitations for the fraudulent concealment claim is two years. On July 27, 2022, the trial court entered judgment for NuSil against the O’Bryans on “all claims in Plaintiffs’ Complaint in its entirety.” The Court of Appeal affirmed the trial court in the unpublished case of O'Bryan v. NuSil Technology -F084899 (April 2024). An employee injured during the course of employment is generally limited to remedies available under the Workers’ Compensation Act. Certain types of injurious employer conduct bring the employee outside the compensation bargain. One exception to the exclusive remedy rule was identified by our Supreme Court in Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465. The fraudulent concealment exception outlined in Johns-Manville was codified in 1982 as Labor Code section 3602, subdivision (b)(2). This statutory subdivision allows a civil suit “[w]here the employee’s injury is aggravated by the employer’s fraudulent concealment of the existence of the injury and its connection with the employment, in which case the employer’s liability shall be limited to those damages proximately caused by the aggravation.” (Lab. Code, § 3602, subd. (b)(2).). A fraudulent concealment claim under Labor Code section 3602, subdivision (b)(2) requires the employee show three conditions: “(1) the employer must have concealed ‘the existence of the injury’; (2) the employer must have concealed the connection between the injury and the employment; and (3) the injury must have been aggravated following the concealment.” (Jensen v. Amgen Inc. (2003) 105 Cal.App.4th 1322.) The parties agree the statute of limitations for the O’Bryans’ fraudulent concealment claim is two years pursuant to Code of Civil Procedure section 335.1. The question of when a “cause of action accrued is a mixed question of law and fact.” The O’Bryans filed their initial complaint on January 17, 2019. Thus, the O’Bryans’ cause of action was time-barred if all the elements of their fraudulent concealment claim accrued prior to January 17, 2017, absent an applicable exception to the general rule of accrual. Here, O’Bryan suspected NuSil’s alleged wrongful conduct had injured him well before filing his civil complaint. By at least May 11, 2016, O’Bryan knew his health had been damaged by toxic chemical exposure at NuSil and suspected this exposure included formaldehyde, a chemical that was purportedly not being produced at the facility. At multiple times before May 11, 2016, O’Bryan expressed concern that his health was at risk from chemical exposure during his employment at NuSil. The Court of Appeal rejected the O’Bryans’ contentions they could not assert their cause of action until the May 30, 2017 OSHA report confirmed the presence of formaldehyde at NuSil’s facility. This argument misapprehends the necessary facts to assert a cause of action. “A plaintiff need not be aware of the specific ‘facts’ necessary to establish the claim; that is a process contemplated by pretrial discovery.” ...

The California Restaurant Mutual Benefit Corporation (CRMBC) is endorsing the upcoming changes in workers' compensation classifications for California's restaurant and hospitality sectors, as announced by the Workers' Compensation Insurance Rating Bureau of California (WCIRB). CRMBC is a California Self-Insured Group (SIG) formed BY restaurant owners FOR restaurant owners. Choosing to opt out of commercial insurance that uses premiums to boost their substantial profits and overhead, CRMBC is a group of business-savvy restaurant owners who joined forces to self-insure their work comp for sustainable cost savings. This significant update to the classification system will take effect on September 1, 2024. This update, a result of a comprehensive study, introduces six new classifications within the restaurant and hospitality sectors to better reflect the diverse operations and risk profiles across the industry. The six new classifications, effective September 1, 2024, are: - - 9058, Hotels, Motels or Short-Term Residential Housing – food or beverage employees - - 9080, Restaurants – full service - - 9081(1), Restaurants – N.O.C. - - 9082, Caterers – not restaurants - - 9083, Restaurants – fast food or fast casual - - 9084, Bars or Taverns – not restaurants The following classifications will also be included in the Food and Beverage Service Industry Group: - - 8078(1), Sandwich Shops - - 8078(2), Beverage Preparation Shops - - 8078(3), Ice Cream or Frozen Yogurt Shops - - 9081(2), Concessionaires ​​​​​ - - - - Classification Code changing from 9079(2) effective September 1, 2024 Previously consolidated under broad categories, these new classifications aim to provide a more accurate representation of risk, thereby enabling fairer premium assessments. The changes are designed to capture the evolving dynamics of the restaurant industry, addressing the need for granularity in risk assessment and insurance rate determination. This strategic adjustment is part of WCIRB's ongoing efforts to enhance the standard classification system, ensuring it remains relevant and responsive to industry trends. Kaya Stanley, CEO and Board Chair of CRMBC urges workers' compensation brokers and restaurant owners to engage actively with the forthcoming changes. "Understanding the implications of the new classifications on policies and rates is crucial," Stanely said. "While the immediate impact on rates is expected to be neutral, the long-term benefits of more accurately identifying risks and performance cannot be understated. This reclassification will enable more strategic decisions regarding loss prevention, safety programs, and overall risk management - ultimately benefiting the entire industry." According to the WCIRB, the changes to workers' compensation classifications are more than administrative adjustments; they are a forward-looking approach to better serve the needs of California's diverse restaurant industry. By breaking down the broad Classification 9079(1) category into six detailed classes, insurance will better align with businesses' actual risks and operations. Bill Mudge, WCIRB President and CEO, commented, "We appreciate the opportunity to educate all workers' compensation system colleagues, including CRMBC members and restaurant owners across California, on the upcoming changes to Classification 9079, Restaurants or Taverns, as approved by the Insurance Commissioner and effective September 1, 2024. Stakeholders can find our latest interactive and educational resources on our website." ...

The WCAB just published en banc orders that involve a course of conduct that appears to have occurred across eight (8) cases, involving attorney Susan Garrett and hearing representative Lance Garrett’s representation of seven applicants and one lien claimant. "It appears that in each of these cases Garrett Law Group through Susan Garrett or its hearing representative Lance Garrett, while supervised by attorney Susan Garrett, requested a series of continuances of multiple trial dates. However, the requests for continuance due to calendar conflict were not filed when the notice of hearing was issued. Instead, they waited until days before trial to request a continuance." "When the WCJ denied the request for continuance, they waited until the day of trial to file petitions for reconsideration in lieu of appearing for trial and to prevent the matters from proceeding, even though they were given notice by the Appeals Board in a prior decision that reconsideration is not proper from an order setting the matter for trial." "That is, based upon the timing of their filings, it appears that they filed the petitions for reconsideration solely to delay the trial proceedings in each case, as evidenced by their action of not appearing at trial in each case and not ensuring that their client appeared." "We emphasize that filing a petition for reconsideration does not by itself excuse any party from appearing at a properly noticed hearing because only the Workers’ Compensation Appeals Board can excuse an appearance. Moreover, their delay in seeking a continuance and filing for removal on or near the day of trial would not have provided sufficient time for the Appeals Board to act." Consequently, on April 10, 2024, the Appeals Board issued an en banc order consolidating eight cases and issued a notice of intention to impose costs and sanctions collectively up to $20,000.00 against attorney Susan Garrett (CA BAR #195580) in eight (8) instances where it appeared that she filed petitions for reconsideration with willful intent to disrupt or delay the proceedings of the Workers’ Compensation Appeals Board or with an improper motive, or where it appeared that such actions were indisputably without merit. The Appeals Board issued a second notice of intention to impose costs and sanctions collectively up to $20,000.00 against hearing representative Lance Garrett in eight (8) instances where it appeared that he filed petitions for reconsideration with willful intent to disrupt or delay the proceedings of the Workers’ Compensation Appeals Board or with an improper motive, or where it appeared that such actions were indisputably without merit. In the en banc notice of intent, the Appeals Board makes clear that a request for a continuance is not a final order as it does not resolve any threshold issue. Where a party files a petition for reconsideration without good cause, a notice of intent to impose sanctions may issue. "In each of these cases, eight (8) instances total, attorney Susan Garrett and hearing representative Lance Garrett each appear to have engaged in the similar tactic of requesting trial continuances, then filing a petition for reconsideration of the order denying the trial continuance on or near the day of trial and then failing to appear at trial". Filing petitions for reconsideration designed to delay a trial can be described as frivolous and/or bad-faith conduct, which is sanctionable. (See United States Fire Ins. Co. v. Workers’ Comp. Appeals Bd. (Palafox) (2013), 78 Cal.Comp.Cases 1021 [2013 Cal. Wrk. Comp. LEXIS 137].) "Based upon our review of the record, it appears that the following same or similar sanctionable conduct has occurred in each of these cases." Both Susan and Lance Garrett have 20 plus 5 days to file a response to the notice. En banc decisions of the Appeals Board are binding precedent on all Appeals Board panels and workers’ compensation administrative law judges. (Cal. Code Regs., tit. 8, § 10325; City of Long Beach v. Workers’ Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298, 316, fn. 5 [70 Cal.Comp.Cases 109]; Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418, 1424, fn. 6 [67 Cal.Comp.Cases 236].) This en banc decision is also adopted as a precedent decision pursuant to Government Code section 11425.60(b). It is interesting that the WCAB has elevated these cases to an en banc effort. One possible reason is that the WCAB intends to deal with frivilous petitions for reconsideration/removal more aggressively ...

Insurance is among the industries already deploying and expanding the potential of commercial drones,eyeing two strategic objectives: better risk management through improved data collection, analysis, and actionable insights; and reduced operational costs through improved efficiency and effectiveness in claims adjudication, claims processing, and customer experience. Several leading insurance companies were first in the air, securing FAA permission as early as 2015 to use drones for aerial data collection, catastrophe response, research and development, underwriting, and claims resolution support. Since then, more insurance companies, both national and regional, have begun using drones. Sensing disruptive potential, numerous insurance technology (insurtech) firms have entered the drone domain to offer both comprehensive and specialized services to the insurance industry. For example,Betterview, an insurtech devoted to using drones for property inspections, has executed more than 6,000 rooftop inspections in the last two years. the company signed a partnership agreement with Loss Control 360, which makes software for insurance companies and inspectors. According to it's website "Betterview is the Property Intelligence & Risk Management Solution the insurance industry depends on to identify and mitigate property risk, improve underwriting and inspection efficiency, and build a more transparent customer experience.​" Nearmap, one of the world’s largest location intelligence and aerial imagery solutions providers, has signed an agreement to acquire Betterview. According to a report by Deliotte drone deployment is rapidly expanding and evolving, with current and potential applications spanning the insurance value chain. For example: Pre-loss - - Risk engineering and pricing - Aerial site assessments can identify property features that allow the owner either to seek a reduced risk profile or to take appropriate actions to lower overall risk and justify premium discounts. - - Natural disaster monitoring - Drones can be quickly and safely deployed to monitor areas threatened by natural disasters. Governments working with insurance companies can monitor a situation and alert local residents to potential danger. Post-loss - - Inspection - Drones can provide a safer, faster, and more cost-effective way to conduct a site inspection, particularly in challenging working conditions. - - Risk assessment - Drones may allow insurers to engage a generalist, rather than a specialist, to perform field assessments and obtain high-quality visuals. - - Claims adjudication - The precise photos that drones take can potentially improve the quality of the claims adjudication process. - - Fraud prevention - The moment a property claim is reported (First Notice of Loss), a drone could be deployed to inspect the claims site, increasing information capture accuracy and timeliness. But Deloitte cautions that "Courts have upheld trespass claims involving aircraft operated below navigable airspace that interfered with a property owner’s use of their land.In addition, drone operators may be liable for trespassing for physically entering on land to retrieve a drone. In addition, where risk assessment is conducted by drone, regulators may expect insurers to seek prior approval from insureds. Because drones are capable of flying at lower altitudes than manned aircraft, common-law nuisance claims against drone operators might be successful." However, according to a recent report from The Wall Street Journal aerial home inspections are something insurance companies claim their customers give consent to when they purchase a policy, and that it allows them to "respond more quickly to disasters and charge rates that better reflect a property’s risk." The companies also claim that aerial home inspections are "less intrusive" than visiting customers’ homes to do inspections. Major insurance companies such as American International Group, State Farm and Allstate have gained approval from the Federal Aviation Administration to use drones for insurance adjustment claims over the past few years ...

In May 2021, the Attorney General established the COVID-19 Fraud Enforcement Task Force to marshal the resources of the Justice Department in partnership with agencies across government to enhance efforts to combat and prevent pandemic-related fraud. The task force bolsters efforts to investigate and prosecute the most culpable domestic and international criminal actors and assists agencies tasked with administering relief programs to prevent fraud by, among other methods, augmenting and incorporating existing coordination mechanisms, identifying resources and techniques to uncover fraudulent actors and their schemes, and sharing and harnessing information and insights gained from prior enforcement efforts. The Justice Department’s COVID-19 Fraud Enforcement Task Force (CFETF) just released its 2024 report detailing the efforts of the task force and its member agencies in response to widespread fraud involving many COVID-19 relief programs targeted by fraudsters and other criminals who sought to exploit the government’s relief efforts for their personal gain. To date, the efforts of the task force’s member agencies has led to criminal charges against more than 3,500 defendants for losses of over $2 billion, civil enforcement actions resulting in more than 400 civil settlements and judgments of over $100 million, and over $1.4 billion seized or forfeited. In addition to the efforts noted above, the CFETF has established five strike forces to focus on the most complex and harmful pandemic fraud - often committed by overseas, organized, or violent actors. Those strike forces, located in the U.S. Attorneys’ Offices across the country including the Districts of Maryland, New Jersey, Colorado, the Southern District of Florida, and a joint task force co-located in the Eastern and Central Districts of California, are responsible for indicting 250 defendants to date, including gang members, inveterate fraudsters, and overseas rings committing a myriad of cyber-enabled fraud against our citizens and government programs. The Eastern and Central Districts of California joint COVID Fraud Strike Force was formed in August 2022. As strike force district, the Eastern and Central Districts of California oversee agents, analysts, and AUSAs to bring the most impactful criminal pandemic fraud cases, often involving multiple CARES Act programs, foreign actors, violent perpetrators, or large loss amounts. Since the inception of the Strike Force, the Eastern District of California has criminally charged 17 cases with associated actual losses of over $20 million. The Central District of California has joined with FBI, IRS CI, SBA-OIG, HHSOIG, DOL-OIG, TIGTA, USSS, and several local law enforcement agencies to initiate 37 criminal cases involving 72 individuals suspected of committing PPP, EIDL, UI, and ERC fraud, with losses identified of more than approximately $126 million. Approximately 15 of the 35 cases involve fraudulent UI claims with collective losses of more than $53 million. CDCA’s cases have covered a broad spectrum of criminal activity in its diverse population with a view CFETF members also established the National Unemployment Insurance Fraud Task Force, a first-of-its-kind task force that developed a data sharing and lead development process within OCDETF’s International Organized Crime Intelligence Operation Center (IOC-2), using data from pandemic relief programs. The NUIFTF has used that process to disseminate over 100 leads and intelligence associated with over $3 billion in suspected pandemic fraud. While this report highlights these accomplishments, much work remains in the fight against COVID-19 fraud. CFETF members have seen their budgets cut, straining resources to develop investigations and prosecute offenders. The first years of the pandemic fraud response were dedicated to coordination, data collection, and the establishment of interagency data sharing to generate actionable leads ...

Currently, California has the highest unemployment rate in the nation. The Bureau of Labor Statistics reports the California unemployment rate at 5.3% as of February 2024. The unemployment rates shown are a percentage of the labor force. Meanwhile its unemployment insurance trust fund is empty, relying on nearly $20 billion in loans from the federal government. By contrast, 26 states opted out of pandemic unemployment programs before the 2021 deadline and many of them are solvent and have a surplus, such as Alabama and Utah. By contrast, 26 states opted out of pandemic unemployment programs before the 2021 deadline and many of them are solvent and have a surplus, such as Alabama and Utah. The Golden State is facing an impending fiscal earthquake. Since families and businesses are already fleeing the state in record numbers, straining businesses with higher taxes to refill the unemployment insurance trust fund will only make people run away faster. Therefore, California cannot tax its way out of this problem. The State of California finally published its fiscal year 2022 audited financial statements on March 15, 2024, 350 days later than the March 31, 2023 deadline required by the municipal bond market and the federal government. Even worse, the tardy audit revealed that California had overstated its "Net Position" by about $29 billion. The FY 2022 filing delay of 350 days represents a slight improvement from FY 2021, reversing a trend toward worsening delays. Further, California State Controller Malia Cohen set out a goal of getting back to timely financial reporting by FY 2025. As she stated in her submittal letter attached to the newly released FY 2022 ACFR: "The SCO [State Controller’s Office] will continue to work earnestly toward the goal of publishing the 2024–25 ACFR in March 2026. The SCO’s statewide ACFR process improvement initiative will increase efficiencies and data quality to advance the fiscal integrity of the state into a position to support our continued economic growth. These efforts include establishing an ACFR compilation governance structure, streamlining manual processes, and optimizing technology. The SCO will build upon our work with partner agencies to provide departments the technical assistance and resources needed to accurately and timely submit financial reports." Information technology problems also plague the state’s Economic Development Department (EDD), which is still struggling to address pandemic-​era unemployment insurance fraud. The state auditor had to give California a qualified audit opinion because: "The Employment Development Department had inadequate internal control over its financial reporting for federally funded unemployment insurance (UI) benefits, including not properly estimating the total population of ineligible payments. As a result, the department was unable to provide complete and accurate information for certain accounts within the federally funded portion of the UI program. We were therefore unable to obtain sufficient and appropriate audit evidence to conclude that the department’s balances regarding 100 percent of Other Liabilities, 11 percent of Intergovernmental Revenues, and 12 percent of Health and Human Services Expenditures within the Federal Fund are free from material misstatement." The California State government was obliged to add $29 billion of net liabilities to its balance sheet to recognize the amount of improper UI payments that may have to be remitted back to the federal government. Bureau of Labor Statistics found that California was one of the easiest states to access unemployment insurance during the pandemic, with 83% of all applicants (about a tenth of California adults) successfully receiving benefits. Research shows that recipients are likely to wait to get back to work until just before these benefits run out ...

Skillz Inc., is a mobile gaming company founded in 2012 by Andrew Paradise and Casey Chafkin. The company provides an online platform where users can play video games and compete with others on their mobile devices. Paradise is Skillz’s Chief Executive Officer and Chafkin is its Chief Revenue Officer. The company is headquartered in Las Vegas and has offices in San Mateo, Seattle, Vancouver and Los Angeles. Gautam Shah joined Skillz as an employee in 2015 as Director of Skillz Live, a new program Skillz was launching at the time. Shah’s title later changed to Director of Finance and Strategy in mid-2017. Like many people in Silicon Valley who join startups, Shah accepted less cash compensation in exchange for options to buy Skillz stock at a predetermined exercise price. For startup employees like Shah, the hope is that the company will undergo an initial public offering (IPO) - which would allow those employees to sell their stock on the open market at a significant profit. Indeed, the primary value of stock options like the ones granted to Shah lies with the ability to cash out those options if the company is successful and goes public. On January 18, 2018 Shah met with Chafkin and told him he wanted a promotion and more compensation. Chafkin responded that a promotion was not appropriate given Shah’s current performance. Shah commented that it did not make sense for him to remain at the company if Skillz did not plan to promote him or increase his compensation. On January 22, 2018, Shah forwarded an email from his work account to his personal email account. That email contained a confidential business report prepared by Mike Termezy. Termezy was a consultant hired by Skillz to analyze its "most confidential business data to determine where [it] had opportunities to grow [its] business in . . . a very competitive market space." After a forensic investigation confirmed that he had taken a personal copy of this report he was terminated for cause. Skillz had an IPO in December 2020. But Shah was not able to realize the Silicon Valley dream because he lost all of his stock options when Skillz terminated him for cause in 2018. As a result, Shah could not exercise his options and sell the Skillz stock he would have acquired upon doing so at a huge profit after the IPO like other former and current Skillz employees. Shah sued Skillz for breach of contract, alleging that Skillz did not have cause to terminate him and wrongfully prevented him from exercising the stock options he had earned as a Skillz employee. A jury found that Skillz breached its contracts with Shah and awarded Shah over $11.5 million in damages for the lost options. The trial court, however, conditioned the denial of Skillz’s new trial motion on Shah’s acceptance of a remittitur in the amount of $4,358,358. After Shah accepted the remittitur, the court entered judgment for Shah in that amount. Both parties appealed. Skillz contends that the judgment must be reversed due to defects in the jury instructions and special verdict forms. Skillz further contends that the damages awarded to Shah are "contrary to law" because they were not measured as of the date of breach, requiring either a far lower award or a new trial on damages. Meanwhile, Shah contends that the jury verdict in excess of $11.5 million should be reinstated because of errors in the trial court’s new trial orders and remittitur. Shah also contends that the court erred in dismissing his tort claims before trial because his stock options are "wages" under the Labor Code. The Court of Appeal affirmed in part, and reversed in part in the partially published case of Sah v Skillz Inc., -A165372 (April 2024). In the published component of the decision, it was concluded that "stock options are not wages under the Labor Code." The reasoning of this conclusion is very relevant to the employment law community. "In the last argument of his cross-appeal, Shah contends we should reverse the trial court’s directed verdict dismissing his tort claims for retaliation and wrongful termination. According to Shah, the court erred when it concluded that stock options are not "wages" under the Labor Code. Shah therefore requests that we remand these claims for a new trial so he may pursue "tort damages, including punitive damages and attorneys' fees.' We review de novo a directed verdict and find no error here." The Court of Appeal agreed with Skillz that stock options are not wages because they "are not 'amounts.' They are not money at all. They are contractual rights to buy shares of stock." (International Business Machines Corp. v. Bajorek (9th Cir. 1999) 191 F.3d 1033, 1039 (IBM); see Falkowki v. Imation Corp. (9th Cir. 2002) 309 F.3d 1123 [stock " 'options are not "wages" 'under [the Labor Code’s] definition of the term 'wages' "].) This conclusion comports with the purpose behind Labor Code section 221. As the Ninth Circuit explained in IBM, "[t]he amount of money for which the shares can be sold on the market varies unpredictably from time to time, so it is not ‘fixed or ascertainable’ by any method of calculation when the agreements are made or exercised." (Ibid.) Thus, the purposes behind Labor Code section 221 of "avoiding secret kickbacks enabling an employer to avoid minimum wage laws" and "protecting employees’ reliance interests in their expected wages, do not apply to stock options." (IBM, at p. 1039.)" ...

According to a recent article in Forbes, in "healthcare, the presence of AI is clearly evident. From optimizing data processing, enhancing patient experience and aiding in medical evaluation and diagnosing, the uses of AI are continuously being tested and expanded." At the forefront of AI’s revolution in healthcare is a new executive in the C-suite: the chief AI officer. As this role takes shape, healthcare leaders should be looking closely at the ways AI can be harnessed to responsibly drive patient satisfaction and business objectives. From saving time to minimizing errors and staying on top of patient communication - a key element of patient satisfaction - chief AI officers should be guiding the ways technology can streamline and automate routine tasks. Through harnessing robotic process automation (RPA), organizations can see significant cost-savings, increases in claims processing, decreases in process times and more. Opportunities to incorporate AI into daily administrative tasks include: - - Processing insurance claims. - - Assigning medical and billing codes. - - Scheduling appointments and coordinating patient reminders/follow-ups. - - Streamlining employee scheduling. - - Managing compliance regulation. Healthcare systems are vast labyrinths that house the clues to how healthcare will continue to evolve. Similar to AI models used in diagnosing that comb through thousands of data sets to quickly identify abnormalities, this technology can also be used to pinpoint trends in how healthy patients are, the services they are utilizing, the ailments they suffer from and how they are interacting with medical professionals. With this data, healthcare executives can engage in forecasting and decision-making for the longevity of their operations and to proactively and holistically approach the healthcare system. And an article in Modern Healthcare also claimed "As more healthcare organizations adopt artificial intelligence, there's a newcomer in some C-suites: the chief AI officer." According to Becker's Hospital Review, Cleveland Clinic is hiring for a chief artificial intelligence officer, hoping to harness the power of the growing technology for healthcare. The new chief AI officer will guide the integration of the technology across Cleveland Clinic, "ensuring AI innovations align with our vision and objectives," according to a March job posting. "Our ambition is to embrace and leverage AI to transform not just the Cleveland Clinic but the industry at large," the health system wrote. A handful of other health systems have named AI chiefs in recent months, including Mayo Clinic Arizona, UC San Diego Health and Atlanta-based Emory Healthcare. At Cleveland Clinic, the chief AI officer will work closely with other C-suite executives, as well as IT, data science and clinical leaders and build a team of AI specialists, data scientists and analysts. The health system is looking for someone with a master's or PhD in computer science, AI, data science or a related field. The hourly pay ranges from $125.61 to $257.52, or about $261,000 to $537,000 annually. Despite fears that artificial intelligence would kill jobs, the technology has helped create the "hottest new role in corporate America": the chief AI officer, The New York Times reported Jan. 29. "It helps to have a coordinating function with the depth of expertise," Richard Gray, MD, CEO of Mayo Clinic in Arizona, told the newspaper. "We're really trying to foster some of these data and AI capabilities throughout every department, every division, every work group." In 2023, 122 chiefs or vice presidents of AI joined a forum on company review site Glassdoor, compared to 19 the year prior, The Times reported. However, a 2023 Harvard Business Review article contended that chief AI officers are "set up for failure" because of the risks of the new technology, while LinkedIn's chief economist told the newspaper that AI-specific job titles will eventually go away because the technology will become so ubiquitous ...

The case of Thomas Perez was initially set for a priority conference on June 7, 2022. At that time, the case was set for trial commencing on November 15, 2022, on the issue of employment On June 24, 2022, defendant SCIF filed a Petition to permit remote witness trial testimony of defense witnesses Jeff Hinkley and John Eastman. On June 29, 2022, the WCJ issued an Order denying defendant’s petition on the basis that no good cause had been shown for allowance of such remote testimony. No evidence was identified, nor was any record made or testimony taken prior to denial by the WCJ of the Petition. Then, on July 7, 2022, defendant filed a Petition for Removal of the June 29, 2022 Order. On November 30, 2022, the WCAB issued an "Opinion and Order Granting Petition for Removal and Decision After Removal," remanding the matter back to the trial judge to make a record, in order to enable us to understand the basis for the WCJ’s decision per Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473 (Appeals Board en banc). A trial hearing took place on April 25, 2023, at which time the sole issue to be decided was whether Mr. Hinkley should be granted a remote appearance for purposes of testimony in any future trial related to the case. The stipulations of the parties included the statement that there were no objections to the remote testimony of Mr. Hinkley. On June 12, 2023, the WCJ issued the F&O denying SCIF’s petition on the basis that defendant failed to demonstrate good cause. So, once again filed a Petition for Removal, which was granted, and the WCJ's decision was rescinded in the panel decision of Perez v Cleanco Construction et.al, -ADJ2030301 (April 2024). Any decision of the WCJ granting or denying a petition to allow an electronic appearance or electronic testimony must be reduced to writing and be based upon an adequate record, after providing the parties an opportunity to be heard, in the same manner as any other order touching on the parties’ due process rights. (Lab. Code § 5313; Cal. Code Regs., tit. 8, § 10833; Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, citing Evans v. Workmen’s Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350, 351].) A party intending to appear electronically may seek permission to appear electronically at a hearing pursuant to WCAB Rule 10816, by filing a petition pursuant to WCAB Rule 10510. A witness seeking permission to testify electronically may likewise file a petition pursuant to WCAB Rule 10817. The person seeking to appear electronically or testify electronically must demonstrate good cause. A stipulation between the parties constitutes such good cause, and obviates the need to provide an opportunity to be heard or to create a record. (Cal. Code Regs., tit. 8, § 10835.) Here, the parties stipulated that Mr. Hinckley could testify electronically. By doing so, the parties demonstrated good cause. Thus, as explained below, in order to disregard the stipulation, the WCJ was required to demonstrate good cause to set it aside. Stipulations are binding on the parties unless, on a showing of good cause, the parties are given permission to withdraw from their agreements. (County of Sacramento v. Workers’ Comp. Appeals Bd. (Weatherall) (2000) 77 Cal.App.4th 1114, 1121 [65 Cal.Comp.Cases 1] (Weatherall).) As defined in Weatherall, "A stipulation is ‘An agreement between opposing counsel . . . ordinarily entered into for the purpose of avoiding delay, trouble, or expense in the conduct of the action,"(Ballentine, Law Dict. (1930) p. 1235, col. 2) and serves ‘to obviate need for proof or to narrow range of litigable issues (Black’s Law Dict. (6th ed. 1990) p. 1415, col. 1) in a legal proceeding. - (Weatherall, supra, at p. 1119.). It is true the Appeals Board has the discretion under section 5702 to reject factual stipulations. (See Frankfort General Ins. Co. v. Pillsbury (1916) 173 Cal. 56, 58-59 [159 P. 150]. However, the Appeals Board should not reject a stipulation clarifying the issues in controversy absent good cause. (See Robinson v. Workers’ Comp. Appeals Bd. (1987) 194 Cal.App.3d 784, 790-791 [52 Cal.Comp.Cases 419]; Weatherall, supra, p. 1119; See Bailey v. Taaffe (1866) 29 Cal. 422, 424 [exercise of discretion should not be capricious].) "We see no basis on the existing record for the WCJ to have rejected the stipulation. The WCJ’s rejection of the agreement at trial to allow the witness’ remote testimony was stated as '[i]n order to properly assess the credibility of a witness, a trier of fact (as well as the other parties in a case) is best served by being able to observe the witness in ‘real life’ rather through a monitor or on a phone.' (Report, p. 7.) Based on our review, we do not believe that this is a sufficient reason to reject the stipulation." Thus, the Order denying defendant’s petition to permit remote testimony of Jeff Hinkley in light of the stipulation of the parties at trial resulted in substantial prejudice and irreparable harm to defendant, as well as unnecessary delay ...

Stern Produce Co., an Arizona-based company, operates a wholesale produce distribution center in Phoenix. Since at least 2015, United Food and Commercial Workers, Local 99, has been trying to unionize Stern Produce’s warehouse employees and truck drivers. In 2015 and 2016, this union filed unfair labor practice charges against Stern Produce, alleging that the company interfered with a scheduled representation election. In 2020, the union again lodged charges against the company. Stern Produce had laid off all its hourly workers at the start of the COVID-19 pandemic and then brought back some drivers when business resumed. The union claimed that Stern Produce had selectively failed to recall pro-union employees and had done so in order to dilute union support in its workforce. These charges were resolved by litigation and/or settlement. In this current case one of the charges against Stern Produce involves a text message a supervisor sent to delivery truck driver Jose Ruiz. The other charge relates to a written warning a supervisor issued to another driver, Uvaldo Ponce. The evidence with respect to each charge was as follows. While driving a truck for the company in July 2021, Ruiz parked to take a lunch break and covered the truck’s inward- facing camera. Ruiz’s truck, like virtually all Stern Produce trucks, was equipped with a system transmitting real-time data to the company about the vehicle’s location and operation. The truck was also fitted with one camera with a street view and another with a view of the driver and the truck’s cab. At some point later, Ruiz’s supervisor, transportation manager Nick Barr, sent Ruiz a text message: "Got the uniform guy for sizing bud, and you cant cover the camera it’s against company rules." When Ruiz saw the message several hours later he replied: "OK Bud muy [sic] lunchtime." The evidence showed that manager Barr did not know that Ruiz was on a lunch break. There was no set time for drivers to stop for lunch. Ruiz testified that after this solitary incident, manager Barr "never once touched the subject ever again." In August 2021, Ponce was at the Stern Produce facility when he heard two fellow drivers, Joe Metzgar and Mohamed Chayko, jokingly call each other "baby." Ponce told Chayko, "you know they kill people like that in your country." When Chayko asked Ponce to clarify, Ponce replied, "gays." Chayko then asked Ponce where he thought Chayko was from. Ponce guessed Afghanistan and then Iraq; Chayko told Ponce he was wrong and left the room. After concluding their investigation, owner Stern and manager Barr consulted with human resources and concluded that because Ponce had insulted Chayko based on his perceived race, ethnicity, and sexual orientation, Ponce’s conduct warranted a written warning. The written warning stated that Ponce’s comments violated "company policy around the use of disparaging or abusive words, phrases, slurs, and negative stereotyping." The union filed unfair-labor-practice charges based on these two incidents. The Board’s General Counsel issued a complaint, alleging that Stern Produce had created an impression of surveillance of organizing activities by making Ruiz aware that he was being watched, and that Ponce’s union support motivated Stern Produce’s decision to give him a written warning for a first-time offense. The Administrative Law Judge sided with Stern Produce. The ALJ found that the message to Ruiz did not create an impression of surveillance, since manager Barr had engaged in "mere observation" in line with "longstanding company policies" about truck cameras. As for the warning to Ponce, the ALJ determined that it had not been motivated by Ponce’s prounion activities. The ALJ found that Stern Produce had issued the warning without knowing if Ponce was still involved with the union, and that the company had acted based on Ponce’s offensive and discriminatory comments, rather than any antiunion animus. The National Labor Relations Board reversed the ALJ on both issues. Stern Produce Co., 372. N.L.R.B. No. 74, 2023 WL 2913118 (Apr. 11, 2023). Stern Produce’s petition for judicial review by the Court of Appeals for the D.C. Circuit presents the question whether the Board’s conclusions are "supported by substantial evidence on the record as a whole." The D.C. Circuit reversed the NLRB and found that the "Board lacked substantial evidence to find that Stern Produce violated the National Labor Relations Act. Stern Produce’s petition for judicial review is therefore granted, and the Board’s decision and order are vacated. The Board’s cross-application for enforcement was therefore denied in the case of Stern Produce Compay Inc., v NLRB - No. 23-1100 (March 2024). "The Board’s misguided attempt to find a labor-law violation in one text message is 'the product of a familiar phenomenon': years ago the Board took an expansive view of the scope of the Act and then, over time, it 'presse[d] the rationale of that expansion to the limits of its logic." NLRB v. Int’l Bhd. of Elec. Workers, Loc. 340, 481 U.S. 573, 597 (1987) (Scalia, J., concurring in judgment). The Board then focused its analysis here not on the statutory text - the 'authoritative source of the law' - but on its own constructions of (its own constructions of) the Act. Id. at 597-98. The Board extended the Act’s prohibition on 'coerc[ing]' employees to first reach acts that 'reasonably tend' to coerce, e.g., Blue Flash Express, Inc., 109 N.L.R.B. 591, 593 (1954); then acts that create an impression of surveillance, e.g., Harrington & Richardson, Inc., 136 N.L.R.B. 1095, 1098 (1962); and then 'out of the ordinary' actual or perceived surveillance of pro-union activity, e.g., Metal Indus., Inc., 251 N.L.R.B. 1523, 1523 (1980)." "Relying on that logical progression, the Board here went one step further, asserting that a single communication to a prounion employee referencing a generally applicable policy of employee monitoring fell within Section 8(a)(1)’s ambit as 'out of the ordinary' surveillance. That argument, as explained, stretches Board precedent so far that not even 'fidelity to [the] logic' of those prior decisions can sustain the Board’s finding." The Court of Appeals concluded by commenting "that the Board’s majority and its General Counsel, at least at the time of these proceedings, should have brushed up on the ancient and wise legal doctrine de minimis non curat lex - that is, the law does not concern itself with trifles. Or should not." ...

Medic Ambulance Service provides advanced life support ambulance services in the North San Francisco Bay area. They are the exclusive 911 ambulance provider for all of Solano County with the exception of Vacaville. Meghan Silva, an Emergency Medical Technician, filed a class action against Medic Ambulance Service, Inc. alleging it had violated labor laws by requiring that employees remain on call during their rest breaks. California voters subsequently approved a proposition enacting the Emergency Ambulance Employee Safety and Preparedness Act (EAESPA) (Lab. Code, § 880 et seq.). The EAESPA provides that emergency ambulance employees "shall remain reachable" throughout their work shift and is explicit that this provision is retroactive. In Calleros v. Rural Metro of San Diego, Inc. (2020) 58 Cal.App.5th 660 (Calleros), the Fourth District rejected an argument that retroactive application of the EAESPA was unconstitutional. When confronted with the EAESPA and Calleros, Silva’s counsel indicated they would proceed and appeal to the First District for a decision that disagreed with Calleros. Medic filed a motion for judgment on the pleadings (MJOP) and a motion for sanctions. The trial court granted the MJOP, and imposed a $2,000 sanction against Silva’s counsel. Silva and her counsel appealed, renewing their argument that Calleros was wrongly decided and contending that the trial court abused its discretion in imposing sanctions. The Court of Appeal for the First Appellate District affirmed the trial court, and Calleros in the partially published case of Silva et al. v. Medic Ambulance Service, Inc -A167098 (April 2024). In December 2016, the California Supreme Court issued its decision in Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257 (Augustus). The class action plaintiffs in that case worked as security guards for ABM Security Services and were required to remain on call during rest periods. Interpreting Wage Order 4 in Augustus, the California Supreme Court determined that the term "rest period" should be given its "most common understanding" as a period of rest during which employees are relieved from their work duties. Requiring employees to remain on call could not be reconciled with this reading. In February 2017, two months after the Augustus decision was issued, Silva filed a class action against Medic on behalf of herself and other emergency medical technicians, as well as paramedics, dispatchers, and supply service technicians employed by Medic. In December 2017, the Ninth Circuit certified questions to the California Supreme Court regarding the applicability of meal and rest period regulations to the employers of ambulance attendants working 24-hour shifts. (Stewart v. San Luis Ambulance, Inc. (9th Cir. 2017) 878 F.3d 883, 884 (Stewart I).) The Ninth Circuit explained that, while the California Supreme Court had interpreted Wage Order 4 to require off-duty rest periods, "Augustus does not control the interpretation of Wage Order 9." The Ninth Circuit noted that "for the past twenty- seven years, California courts have permitted employers of ambulance attendants to exclude sleep periods from compensable time without a written agreement, despite the fact that the employer retains control throughout the twenty-four hours to wake the employees from their sleep every time an emergency arises." (Stewart I, at pp. 886-887.) "This precedent, unique to the ambulance industry, makes the applicability of Augustus to Wage Order 9 a difficult open question." (Stewart I, at p. 887.) In November 2018 (with these questions still pending before the Court), California voters approved Proposition 11, which enacted the EAESPA. Section 887, subdivision (a) of the EAESPA provides: "In order to maximize protection of public health and safety, emergency ambulance employees shall remain reachable by a portable communications device throughout the entirety of each work shift." The California Supreme Court subsequently dismissed consideration of the questions posed by the Ninth Circuit in Stewart I. (Stewart v. San Luis Ambulance, Inc., S246255, Supreme Ct. Mins., Sept. 18, 2019.) It explained: "In light of the passage of Proposition 11, the Emergency Ambulance Employee Safety and Preparedness Act (Gen. Elec. (Nov. 6, 2018)[)], resolution of the questions posed by the Ninth Circuit Court of Appeals is no longer necessary . . . to settle an important question of law. " (Ibid.) In November 2020, the Fourth District issued its decision in Calleros. Calleros concluded that the EAESPA’s retroactive application satisfies constitutional requirements. After the Calleros decision was issued and requests for its depublication were denied, Silva’s counsel represented to the trial court that Silva "does not intend to dismiss the case and believes the opinion from the 4th District was erroneously decided and will go before the Court of Appeal to have the decision reversed." After reviewing the arguments of the parties, the Court of Appeal in Slliva affirmed the reasoning in Calleros and the trial court. "..we conclude that the EAESPA clarified existing law and therefore retroactivity analysis is unnecessary. The EAESPA applies to Silva’s claim and Medic was entitled to judgment on the pleadings." It also concluded that the trial court did not abuse its discretion in imposing sanctions against Silva’s counsel ...

The Contractors State License Board (CSLB), along with the Kern County District Attorney’s Office and California Department of Insurance, recently conducted a successful undercover operation targeting unlicensed contractors. This sting operation took place in Bakersfield on March 20 and 21 where CSLB cited 12 individuals for allegedly conducting contracting activities without the required license. These offenders were issued Notices to Appear in criminal court and could face legal consequences, including fines up to $15,000 and/or jail time. Engaging in contracting work without a contractor’s licnse is a misdemeanor offense in California. The individuals targeted during this operation submitted bids ranging from $600 to $6,500 for home improvement projects including fencing, landscaping, plumbing, painting, and concrete work. A California contractor’s license is required to bid or contract for construction work exceeding $500 in value, including materials and labor. In addition, nine stop orders were issued during the operation, halting work at job sites where contractors failed to provide workers' compensation insurance for their employees. Unlicensed contractors apprehended in this operation may also face additional charges for advertising their construction services without the necessary license. It is illegal in California to advertise construction or home improvement work without a valid license in the advertised classification. If unlicensed individuals advertise contracting services, they must explicitly disclose their lack of licensure and cannot bid or contract for work valued at more than $500. "CSLB is unwavering in our dedication to protect homeowners from the risks posed by unlicensed contractors," said CSLB Registrar David Fogt. "Our commitment includes providing continuous consumer education on the critical significance of hiring licensed contractors. We urge homeowners to verify a contractor's license on CSLB’s website before embarking on any construction project in California." Unlicensed contractors often use workers from the underground economy, who are paid in cash, and not protected by worker's compensation policies of insurance. Licensed contractors are required to provide worker's compensation coverage information to the Contractors State License Board as part of the regulatory process ...

Jasmin Vazquez started working for SaniSure through a staffing agency in July 2019. She was hired directly by the company as an at-will employee that November. Her employment was "for no definite period," and either she or SaniSure could terminate the employment relationship at any time. As part of her hiring, SaniSure provided Vazquez with onboarding documents, including agreements to "utilize binding arbitration as the sole and exclusive means to resolve all disputes that may arise out of or be related in any way to [her] employment." Subject to limited exceptions, she agreed that any claim she had against the company would "be submitted to and determined exclusively by binding arbitration." She also agreed to bring any claim individually, waiving her right to pursue a class or collective action. Changes to these agreements, if any, could be made only in writing. Vazquez terminated her employment with SaniSure when she resigned in May 2021. Four months later, she negotiated a new employment offer and returned to work for the company. During negotiations the parties did not discuss whether Vazquez would be required to sign arbitration agreements again or whether claims related to her employment would be subject to arbitration. Vazquez’s second stint of employment with SaniSure ended in July 2022. In October, Vazquez filed a class action complaint alleging that SaniSure failed to provide accurate wage statements during her second stint of employment. She also alerted both SaniSure and the Labor and Workforce Development Agency (LWDA) of her intent to add a derivative action under the Labor Code Private Attorney Generals Act (PAGA) (Lab. Code, § 2698 et seq.). SaniSure moved to compel arbitration. The trial court denied the motion. All the claims in Vazquez’s complaint arose out of her second stint of employment with SaniSure. But SaniSure failed to show that Vazquez agreed to arbitrate claims arising from that stint of employment. The court of appeal affirmed in the published case of Vazquez v SaniSure, Inc., -B329219 (April 2024.) SaniSure contends the trial court should have granted its motion to compel arbitration because it showed the existence of an arbitration agreement covering Vazquez’s second stint of employment. The court of appeal disagreed. "Here, we cannot say that SaniSure’s evidence was so uncontradicted, so unimpeached, and of such a character that it left no room for a judicial determination that it was insufficient to support the existence of an arbitration agreement governing Vazquez’s second stint of employment. "An arbitration agreement is tied to the underlying contract containing it." (Moritz v. Universal City Studios LLC (2020) 54 Cal.App.5th 238, 246 (Moritz).) Such an agreement can be revoked "upon such grounds as exist for the revocation of any contract." (Code Civ. Proc., § 1281.) At-will employment contracts can be revoked upon reasonable notice. (Consolidated Theatres, Inc. v. Theatrical Stage Employees Union (1968) 69 Cal.2d 713, 727, fn. 12.)" "Vazquez signed arbitration agreements during her first stint of at-will employment with SaniSure. But she revoked these agreements by terminating her employment in May 2021. The causes of action in Vazquez’s lawsuit are based on events that allegedly occurred only during her second stint of employment with SaniSure." "Thus, for her claims to be subject to arbitration, SaniSure must show that the parties agreed that the agreements Vazquez signed during her first stint of employment would apply to her second. (See Code Civ. Proc., § 1280, subd. (i) [arbitration agreement can be extended by implied agreement]; see also Litton Financial Printing Div. v. NLRB (1991) 501 U.S. 190, 205- 206 (Litton) [cause of action that arises after contract terminates may be subject to arbitration if arbitration agreement survives termination of the remainder of the contract].)" "SaniSure has not done so. Vazquez testified that she never agreed that the agreements she signed during her first stint of employment would govern her second. She also said that SaniSure never told her that getting rehired was contingent on agreeing to arbitration. And the documents she signed upon rehiring do not mention arbitration. SaniSure points to no evidence to the contrary. It has thus failed to carry its - 'almost impossible' - burden of showing that the trial court erred as a matter of law when it denied the motion to compel arbitration. (Gamboa, supra, 72 Cal.App.5th at p. 166.)" ...

While cranes play a vital role in the transportation, construction and agriculture industries, among others, operating this type of equipment can be especially dangerous if proper protocol is not followed. In fact, the Census of Fatal Occupational Injuries, or CFOI, reported a staggering 297 crane-related deaths between 2011 and 2017. As part of a collaboration with the NCCCO Foundation, and continuing its mission to advance safety in the workplace, the National Safety Council released a new report through its Work to Zero initiative, Understanding the Current State of Safety Hazards in the Crane Industry, highlighting lift-specific risks and best practices employers can adopt to keep workers safe. Research from the CFOI also shows more than half of workplace deaths that occur in the crane industry involve workers being struck by objects or equipment, and an additional 27% of fatalities occur as a result of falls and transportation incidents. For the report, the National Safety Council partnered with the NCCCO Foundation to survey certified crane operators and inspectors to identify the most common hazards in the industry, top risk factors and learn about technology solutions to eliminate or minimize injuries. Nearly 2,200 voluntary and anonymous responses from the NCCCO Foundation between July and August 2023 were used to develop this report. Notable findings include: - - Top hazardous situations: Working at height, vehicle-pedestrian interactions, and loading and unloading materials are the top hazardous situations on the job. Between 55% and 89% of participants said they were likely or very likely to be exposed to these circumstances. In 2020, NSC found these three hazardous situations resulted in 30% of non-roadway occupational fatalities. - - Most common risks: The two most common systemic risks contributing to workplace injuries in the crane industry are heat stress and fatigue. The report also found that survey participants reported heat and stress were some of the most likely exposures on the job. - - Most common causes of injuries: Situational risks remain prevalent in the crane industry, with falls from height and being struck by a falling object being the two most common causes of injuries. - - Safety training and compliance: Eight out of 10 survey respondents believe they have access to appropriate safety training before starting a task, but lack of proper training still accounted for 7% of personal injuries and 8% of on-site injuries. - - Technology implementation: The use of safety technology - including drones, proximity sensors and vital sign wearables - is fairly low. Depending on the specific type, only one to 13% of participants reported using technology at job sites. However, many of those surveyed indicated a willingness to try new safety technology solutions, while the primary barrier to adoption was concern over data privacy. The report also notes some recommended actions and potential technology solutions that employers can implement to help reduce the top safety risks in the crane industry, including: - - Heat stress: Working in high-heat environments can lead to both serious injuries and illnesses, including heat stroke, slips, trips, falls and dropping objects. It’s important employers develop heat stress prevention programs that include safety training on how to recognize the signs and symptoms. Potential technology solutions that may help mitigate these risks include wearables that monitor people’s vital signs. - - Fatigue: Fatigue can cause workers to have trouble focusing and remembering, which can lead to distractions and less muscle coordination, ultimately resulting in more injuries. Similar to heat stress, safety training should focus on how to recognize the signs and symptoms, and wearable technology can play an important role in monitoring this issue. - - Struck by falling objects and falls from height: Working at height risks, like being struck by an object or falling, can be reduced with fall protection training and instruction on how to properly use personal fall arrest systems. Potential technology solutions include utilizing drones for inspection and visualization purposes, which eliminate the need for a worker to be off the ground. This report builds on the Work to Zero Safety Innovation Journey to help organizations assess risks, identify technology solutions and ready workplaces for implementation. As the crane industry continues to navigate major safety challenges, NSC and the NCCCO Foundation plan to continue this work and provide additional resources to educate crane operators, inspectors and employers about potential workplace hazards and technology solutions that can help minimize risks ...

Kristina Gallo was employed as an Office Manager/Stock Clerk by Rooster T. Feathers Comedy Club on on 9/5/2014 when she suffered an injury to her back, trunk and lower extremities. A QME, Dr. Renee Ownbe, diagnosed her with right ankle fracture, right hip trochanteric bursitis that resulted in a 16% WPI to the ankle and 3% WPI for pain add on. The case was resolved by Compromise and Release agreement on 11/20/2107 for $60,000. She then filed an application for Subsequent Injuries Benefits Trust Fund (SIBTF) benefits on 08/03/2018 alleging injury to the back, right side, right lower extremity with pre-existing disability to internal organs, bilateral upper and lower extremities, spine and psyche. Dr. Christopher Chen, Dr. Joshua Kirz and Dr. Massoud Mahmoudi served as applicant's SIBTF QMEs. SIBTF did not seek its own med-legal report. Applicant testified during trial she had varicose vein starting in her early 30s, that she had symptoms prior to her 9/5/2014 subsequent injuries and had to change her work activities as a result. She also testified that during marathon training in 2005, she fell on her left side, injuring her left hip, left knee, and lower back and may have been seen by Dr. Rodney Wong. Applicant testified that she started limping on the left side shortly after the 2005 injury and continued every day but episodic. However, the WCJ noted that "applicant's testimony was not supported by any evidence whatsoever. Based on Dr. Kirz, he reviewed in excess of 1000 pages of records dating back to the 1990s. Yet, based on Dr. Chen, Dr. Kirz and Dr. Mahmood's reports, there were no documents nor history of any lower extremities complaints, treatment, nor any documented history of limping. Applicant relied on Dr. Chen's opinion to support her SIBTF claim which stated that in part that "medical records" showed applicant had back problems going back to 2001 and that applicant "likely" had left L4 radiculopathy since 2005, which affected the opposite and corresponding lower extremity under LC §4751. The WCJ however could not find any "records" that Dr. Chen stated to support this opinion. The WCJ went on to write "While there is no doubt that applicant had prior low back complaints as well as other symptoms, evidence failed to show prior or pre-existing labor disabaling condition to the opposite and corresponding left lower extremity. Dr. Chen miserably failed to point to a single evidence supporting "chronic left L4 radiculopathy" despite having reviewed extensive medical records. He did not support his reason for his opinion that applicant "likely" had left L4 radiculopathy since 2005 when the records he reviewed only related to low back pain." Applicant alleges that per Dr. Chen, varicose vein has latency period and genetic factors. Dr. Chen did not provided any opinion regarding latency of varicose vein. He did not specify the latency period nor any medical literature or evidence to support that applicant's varicose vein was present and developed over many years. As for the genetic factor, again, Dr. Chen failed to provide any evidence. While medical record did confirm family history of heart disease in maternal grandparents and hyperlipidemia in applicant's mother, where applicant's mild hypertriglyceridemia was most likely genetic, records were silent as to any family history of varicose vein. The undersigned can only logically conclude Dr. Chen's opinion is speculative or relying on facts not supported by any evidence. On July 16, 2021 the WCJ issued a Findings and Order which found that "applicant has not established through substantial medical evidence that she had permanent partial disability to her left lower extremity, specifically varicose vein, as of the date of her subsequent industrial injury to the opposite and corresponding member on [September 5, 2014]." The Findings and Order was affirmed by the WCAB in the case of Gallo v Subsequent Injuries Benefits Trust Fund -ADJ10049929 (March 2024). "We agree with the WCJ that the opinion of Christopher Chen, M.D., is not substantial medical evidence. To be considered substantial evidence, a medical opinion 'must be predicated on reasonable medical probability.' (E.L. Yeager Construction v. Workers’ Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687];McAllister v. Workmen’s Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413, 416–17, 419 [33 Cal.Comp.Cases 660].) A physician’s report must also be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions. (Yeager Construction v. Workers’ Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (Appeals Board en banc), 70 Cal.Comp.Cases 1506 (writ den.).)" On reconsideration, applicant argued that she had "newly discovered evidence" to support her claim. However, the WCAB panel noted that "we note that applicant has failed to comply with the requirements of WCAB Rule 10974" which requires that the petition must contain an offer of proof which includes "a full and accurate statement of the reasons why the testimony or exhibits could not reasonably have been discovered or produced before submission of the case." "A petition for reconsideration sought upon these grounds may be denied if it fails to meet the requirements of this rule, or if it is based upon cumulative evidence." ...