Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: Judicial and Regulatory Health Care Disruptions Expected Soon. DA Drops Charges in Premium Fraud Case – in 4th Week of Jury Trial. Home Health Care Agencies Cited for $2M in Worker Misclassification. SoCal VR School Executives Arrested for $1.7M Voucher Fraud. DWC Suspends 178 Medical Providers for Fraud Crimes in 2022. LA/OC Physician Pleads Guilty to $20M Pharmaceutical Scam. Pressure Building for Another Decennial Workers’ Comp Reform. State Bar Investigating LA Attorneys Disbursement of Class Action Funds. Proposed Regulations to Allow Unsupervised Care by Nurse Practitioners. Simply Business Partners with biBERK to Offer Comp Coverage. 
Raquel Betancourt worked at Fleming’s Steakhouse & Wine Bar on Olympic Boulevard in Los Angeles.as a server from 2008 through 2015. OS Restaurant Services, LLC and Bloomin’ Brands, Inc., were the owners or operators of the facility.
In August 2016, Betancourt filed a civil action alleging her employer regularly failed to give her full uninterrupted rest periods, and that they wrongfully terminated her in retaliation for her making internal complaints that the employer violated wage and hour laws and food safety laws.
She also alleged she was entitled to recover unpaid premium wages under section 226.7 for the rest break violations; penalties, costs and attorney fees under section 226 for failing to include rest break premiums on her itemized wage statements; and waiting time penalties under sections 201 through 203 for failure to pay all wages on termination, “including, without limitation, unpaid premium wages in lieu of rest periods.”
On October 13, 2017. the parties agreed to a settlement and Defendants agreed to pay plaintiff $15,375 in full settlement of her claims for failure to provide meal and rest periods under section 226.7, failure to provide accurate itemized wage statements under section 226, failure to pay all wages upon termination under sections 201 through 203, and “any and all wage-and-hour-related causes of action that were or could have been asserted in the complaint.” Plaintiff agreed to dismiss with prejudice and without any payment her claims for retaliation and wrongful termination. The parties agreed plaintiff could later file a motion for attorney fees incurred only on her wage and hour claims, “consistent with applicable law.”
The Labor Code mandates an award of reasonable attorney fees to the prevailing party in any action brought for the nonpayment of wages, if any party requests attorney fees at the initiation of the action. (Lab. Code, § 218.5, subd. (a).)
After substantial litigation over the award of attorney fees and costs, the trial court entered judgment on August 31, 2018, in the principal sum of $15,375 payable to Bentancourt as agreed, plus attorney fees of $280,794 and costs of $8,671.95.
In May 2020, the California Court of Appeal reversed the award of attorneys’ fees citing the 2012 California Supreme Court decision in Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1255, which concluded that an action brought for failure to provide rest breaks or meal periods (§ 226.7) is not “an ‘action brought for the nonpayment of wages” within the meaning of section 218.5.
While this decision was pending appeal, the Supreme Court held otherwise in the case of Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th 93. The California Supreme Court concluded that “extra pay for missed breaks constitutes ‘wages’ that must be reported on statutorily required wage statements during employment (Lab. Code, § 226) and paid within statutory deadlines when an employee leaves the job.
The Supreme Court therefore transferred this Bentancourt case back to the Court of Appeal with directions to reconsider its prior opinion in light of Naranjo. Accordingly, the Court of Appeal issued a new published opinion in Bentancourt v OS Restaurant Services, LLC – B293625A (September 2022) which affirmed the award of attorney fees.
“Here, plaintiff’s complaint sought penalties, costs and attorney fees under section 226 for failing to include rest break premiums on her itemized wage statements; and waiting time penalties under sections 201 through 203 for failure to pay all wages on termination. These were claims for nonpayment of wages. Under section 218.5, the court must award the prevailing party reasonable attorney fees and costs “[i]n any action brought for the nonpayment of wages,” if any party requested fees and costs at the beginning of the action.”
Two doctors have filed the first federal lawsuit to stop a new California law that they say shuts down doctors’ free speech rights, by restricting the medical advice they can give patients regarding COVID-19. The law, signed on Friday by Governor Gavin Newsom, authorizes the Medical Board of California to pursue professional sanctions and even license revocation against doctors who share information about COVID-19 that challenges the “scientific consensus.”
Mark McDonald, MD, a Los Angeles psychiatrist, and Jeff Barke, MD, an Orange County primary care physician, are represented by the Liberty Justice Center, a national nonprofit law firm dedicated to protecting Americans’ constitutional rights. The case was filed in the U.S. District Court for the Central District of California against the Medical Board of California and Attorney General of California. The plaintiffs also filed papers seeking a preliminary injunction to protect their free speech rights as the case unfolds.
Daniel Suhr, managing attorney at the Liberty Justice Center, said, “We rely on our doctors to give us their best medical advice, yet the State of California is stopping doctors from doing just that. That’s not just wrong, it’s unconstitutional. Doctors enjoy the same free speech rights as other Americans. The State of California cannot define a so-called scientific consensus on an issue and then punish anyone who dares challenge it.”
Under the terms of the new law, Assembly Bill 2098, the Medical Board is authorized to punish doctors who share “misinformation” with their patients, and then defines “misinformation” as anything that “is contradicted by contemporary scientific consensus.”
In his signing statement, Newsom acknowledged that he was “concerned about the chilling effect” of legislating doctor-patient conversations. Nontheless he signed the law because it was “narrowly tailored to apply only to those egregious instances in which a licensee is acting with malicious intent or clearly deviating from the required standard of care while interacting directly with a patient under their care.”
Critics argue that the text of the measure does not spell out what constitutes an egregious instance, or what metrics will be used to determine malicious intent.
Dr. Mark McDonald, a plaintiff and doctor in Los Angeles, said, “If this period has taught us anything, it is that the scientific and medical environments are constantly evolving, as new information and studies confirm or reject prior policies. Doctors need the freedom to explore alternatives and share opinions that challenge the scientific consensus – that is inherent in the nature of the scientific enterprise. California cannot insert itself into the physician-patient relationship to impose its views on doctors and end all debate on these important questions.”
The lawsuit, McDonald v. Lawson, was filed October 4, 2022, in the U.S. District Court for the Central District of California. The Motion for Preliminary Injunction was filed the same day.
A recent article on this new law by the Los Angeles Times notes that the new law was endorsed by the California Medical Assn., which represents nearly 50,000 physicians throughout the state.
But critics say they are worried that singling out a rapidly evolving and relatively new disease could have unintended harms.”I am concerned this bill will not take into account how quickly information changes in COVID-19,” said Dr. Monica Gandhi, an infectious disease specialist at UCSF.
She cited as an example the antiviral medication Paxlovid. The Food and Drug Administration’s guidelines for emergency use of the drug aren’t updated fast enough to reflect the latest research showing that while it helps senior citizens, it doesn’t do much for patients under 65.
California’s largest health care workers union is no stranger to taking its fights to the ballot – both statewide and locally. In the past five years, it has pitched to voters initiatives on issues ranging from staffing at dialysis clinics to price caps for specific health care providers.
CalMatters reports that this election season, Service Employees International Union-United Health Workers West is targeting the cities of Duarte and Inglewood, where on Nov. 8 voters will decide whether to set a minimum wage requirement of $25 per hour for some of the lowest paid workers at private hospitals, integrated health systems and dialysis clinics. These workers include patient care technicians, janitorial staff, food service workers and aides, among others.
Union leaders are betting that local wins this November could spur a larger statewide movement. Given California’s shortage of health care workers, supporters say a pay bump may help; opponents say these proposals are too narrow to make a difference and may instead backfire.
The union tried negotiating a statewide minimum wage with hospital leaders this summer, but that deal fell apart. And in the past, the union has pushed to raise the state’s general minimum wage, such as when it authored a $15 minimum wage measure for the statewide ballot. The union withdrew its measure when Gov. Jerry Brown signed a similar proposal into law.
Residents in a handful of other Southern California cities may have to make a decision on health care worker wages in later elections. For example, city councils in Los Angeles, Long Beach and Downey approved minimum wage hikes for health care workers at private facilities this summer. But an industry-backed campaign temporarily blocked the cities from implementing the ordinances after it collected enough signatures for a referendum. Those city councils either must repeal the ordinance or put the issue up to voters, likely in 2024.
The coalition of hospitals and clinics leading the opposition to the wage initiatives is calling the union’s proposals “deeply flawed” and the pay rate “arbitrary.” The hospital lobby and health systems across the state have poured at least $17 million into campaigns to defeat these two measures, according to campaign filings in Inglewood and Duarte. SEIU-UHW has allocated more than $1.2 million in support.
The opposition campaign’s argument to voters is that the measures are bad policy because they exclude a significant amount of health care workers in these cities. The measure applies only to private hospitals, their affiliated facilities and dialysis clinics, meaning workers employed at public hospitals would be excluded. Workers at nursing homes, private or public, are also not included in the measure.
Duarte’s Measure J would primarily apply to people employed by City of Hope, a private nonprofit hospital and cancer research center. In Inglewood, Measure HC would apply to workers at a number of dialysis clinics and Centinela Hospital Medical Center, a 362-bed facility operated by the for-profit system Prime Healthcare.
If approved, the $25 minimum wage rate could go into effect as early as December. Employers would then have to follow up with cost of living increases starting in 2024. The initiatives prohibit employers from funding the minimum wage hike by laying people off or reducing their benefits.
SEIU-UHW is also behind this year’s Proposition 29, a measure that asks voters statewide – for a third time – to decide on establishing new rules for dialysis clinics, including adding an extra medical provider on site. The union is known to routinely turn to voters and use the initiative process as a negotiating tactic. In the past, the union has proposed ballot measures and then pulled them after reaching agreements with hospital leaders.
In August, the union and the California Hospital Association tried to hash out a last-minute legislative deal that would boost the minimum wage for workers in both public and private facilities statewide (ranging from $19 to $24 an hour, depending on location) in exchange for the union’s support for a request to delay seismic upgrades due in 2030. But those negotiations fizzled.
For months, patients have been able to obtain a minimum data set specified under federal law, and applications such as Apple Health Records have already dramatically expanded access.
But the new rules taking effect Thursday throw open the floodgates to a much wider swath of information, including medical images, doctors’ notes, genetic data and other details normally kept under lock and key by “blocking rules.”
Health care organizations must now give patients unfettered access to their full health records in digital format.
This is the opposite of the situation previously in place. Health systems, data networks, and the companies that sell electronic medical records determine how much data patients can access, when, and under what circumstances.
And private data brokers made huge profits by amassing hundreds of millions of de-identified medical records and selling insights to drug companies, device makers, and insurers without patients’ knowledge or consent.
According to the report published by StatNews,the new federal rules – passed under the 21st Century Cures Act – are designed to shift the balance of power to ensure that patients can not only get their data, but also choose who else to share it with. It is the jumping-off point for a patient-mediated data economy that lets consumers in health care benefit from the fluidity they’ve had for decades in banking: they can move their information easily and electronically, and link their accounts to new services and software applications.
Information blocking is a practice by an “actor” that is likely to interfere with the access, exchange, or use of electronic health information (EHI), except as required by law or specified in an information blocking exception.
On October 6, 2022, the scope of the 21st Century Cures Act Information Blocking Rule expands to prohibit health care providers from blocking or interfering with patient access to any electronic information in a “designated record set,” as the term is defined under HIPAA. and excluding psychotherapy notes and information compiled in reasonable anticipation of, or for use in, a civil, criminal, or administrative proceeding.
Information Blocking pertains only to the access, exchange, and use of EHI. This should be contrasted to HIPAA, which covers paper, electronic, and verbal data as protected health information (PHI). Individuals still have the right to access their papers records under existing HIPAA rules.
Even with the rules now in place, health data experts said change will not be fast or easy. Providers and other data holders – who have dug in their heels at every step – can still withhold information under certain exceptions. And many questions remain about protocols for sharing digital records, how to verify access rights, and even what it means to give patients all their data. Does that extend to every measurement in the ICU? Every log entry? Every email? And how will it all get standardized?
Miguel Pena suffered severe industrial injuries while working for Aqua Systems on October 5, 2015, in an automobile accident involving Larry Hahn and Specialty Construction, Inc. Pena filed both an Application for Adjudication of Claim, and a civil lawsuit against Hahn and Specialty Construction.
Pena reached a third-party settlement with the insurance carriers for the third-party defendants for a payment of $997,500 to the Employee, and the workers’ compensation carrier, Great American Insurance Co., agreed to waive its subrogation recovery of in excess of $214,703, however it was stipulated that the carrier could claim credit against future workers’ compensation benefits in the amount of $474,705.79.
The matter proceeded to trial of the workers’ compensation case, and the parties stipulated that injury caused 100% permanent disability without apportionment. The start date for payment of the $907.69 per week award was agreed to be 2/3/18.
The settlement and agreement as to third party credit for $474,705.79 was received into evidence. It provided in part that “Petitioner shall be entitled to an immediate award of credit against any and all species of further and future workers’ compensation liability relating to any body parts affected by the Employee’s underlying October 5, 2015 incident, including but not exclusive to all awards of permanent disability benefits.”
Pena’s attorney, William Herreras requested a 15% attorney fee commuted off the far end of the award. He submitted a declaration that said he “was never consulted, considered, or notified of the third-party settlement in this case, netting the applicant $474,074.79.” Thus he contended that he was not bound by the stipulated agreement to immediately apply the $474,705.79 third-party credit against all unpaid benefits because he was not a party to the agreement, and, as such, he is entitled to have his fee commuted from the far end of the award.
The WCJ awarded permanent disability as stipulated, “less a fifteen percent (15%) attorney fee without commutation, with defendant entitled to a credit for amounts previously paid against the permanent disability and the attorney fees thereon.” And it then provided “upon exhaustion of all credit . . . applicant’s counsel has leave to request commutation of any remaining fee on future benefits.”
Pena’s attorney petitioned for reconsideration . A WCAB panel granted reconsideration in the panel decision of Pena v Aqua Systems ADJ10308959 (September 2022).
The panel cited case and statutory provisions that supported the rule that “Contracts such as releases purporting to exempt employers from liability for workers’ compensation benefits are prohibited and presumptively invalid unless and until the WCJ determines that they meet the requisite criteria for approval. (See also Steller v. Sears, Roebuck & Co. (2010) 189 Cal.App.4th 175, 180 (citing section 5001 for the proposition that no settlement is valid unless the WCAB approves the settlement).)”
Following this reasoning, the panel went on to say “the Stipulation to Credit purports to release applicant’s rights to future workers’ compensation benefits and is therefore presumptively invalid unless and until the WCJ inquires into its fairness and adequacy and determines that it meets the criteria for approval.”
And “inasmuch as the Stipulation to Credit does not appear to be duly executed by the proper persons, it fails to meet minimum statutory requirements for establishing the requisite fairness and adequacy for approval.“
For “the entire pendency of this action defendant has been on notice that applicant was represented by an attorney because the application for adjudication identifies Herreras as applicant’s attorney.” And “it is long-settled law that an applicant’s attorney’s appearance in a matter is tantamount to the filing of a lien claim because it puts the defendant on notice that a fee will be claimed.”
“Notwithstanding that it was on notice of Herreras’s lien, defendant made no attempt to secure his agreement for the lien to be subject ‘to an immediate award of credit.’ “
“Accordingly, we will rescind the F&A and substitute findings that defendant is entitled to a third-party credit of $474,705.79 that is not applicable to the attorney’s fee.”
However “Since it is unclear whether defendant’s credit should be applied against applicant’s future medical treatment, we conclude that the record should be developed as to that issue.”
This week 22 former Long Beach car wash workers finally got their paychecks after a five-year wage theft investigation. And thanks to new law that took effect this year, the Labor Commissioner’s Office recovered more than $282,000 for wage theft violations for the car wash workers who worked in Long Beach.
The investigation into Classic Castle Car Wash, Inc., which operates Klassic Car Wash & Detail Center and Castle Carwash in Long Beach began in 2017 after receiving a referral from the CLEAN Car Wash Campaign.
Investigators found that some workers were forced to wait up to three hours before clocking in, while others were only paid for hours when they performed car wash duties and were asked to remain onsite without pay when it wasn’t busy. The citations issued in 2017 for wage theft violations totaled $370,644.
Classic Castle Car Wash, Inc. appealed the citations, and a notice of finding issued by the hearing officer amended the total citations due to $241,641 on December 4, 2020. Classic Castle Car Wash, Inc. made payments on the citation totaling $54,272.93 from 2017 to 2020 but eventually stopped making payments.
In 2021, SB 572 (Hertzberg), the “enforcement lien” bill added Labor Code 90.8, which went into effect in January 2022. It authorized the Labor Commissioner to create, as an alternative to a judgment lien, a lien on real property to secure amounts due under any final citation, findings or decision. The bill requires the Labor Commissioner to include specified information on the certificate of lien to be recorded on the relevant party’s real property and to issue a certificate of release once the amount due, including any interest and costs, has been paid.
After a judgment was entered for the case at the end of 2021, workers learned that the business was going to be sold and reported this to the CLEAN Carwash Worker Center, which informed the Labor Commissioner’s Office.
On June 17, 2022, the Labor Commissioner’s Office recorded a certificate of lien after the enforcement lien bill went into effect in 2022. Classic Castle Car Wash, Inc. had been named in the citations, so the Labor Commissioner’s Office was able to file a lien on the owner’s real property to ensure workers were paid.
One month later, the Labor Commissioner received payment on the Classic Castle Car Wash citations.
The $282,000 recovered will pay workers approximately $229,000 for the overtime and minimum wages, liquidated damages and waiting time penalties owed; $53,000 in civil penalties will go to the state. The monies were secured after a lien on real property was filed by the Labor Commissioner’s Office on Classic Castle Car Wash, Inc.
“The new lien authority provides a practical tool to recover owed wages,” said Labor Commissioner Lilia García-Brower. “It has simplified and expedited the process to get into the pockets of workers and their families the money that is rightfully theirs. These courageous workers reported the wage theft and kept us informed of actions by the car wash owners, which ensured we could ultimately hold the employer accountable and ensure they received their stolen wages.”
With hours left to either sign or veto a stack of bills before they automatically become law on the last day of September, Governor Gavin Newsom plowed through more than 150 bills that were left to review. Now that the legislative year has ended, here are some highlights of his decisions to approve or veto proposed law that effect California employers. It is recommended that the entire law be reviewed by use of the provided link, instead of relying on the summary provided below.
After declaring that “Insurance fraud is rampant in the state, amounting to billions of dollars in damages annually, particularly within workers’ compensation insurance” the legislature passed and the Governor signed AB 1681. Existing law passed in 2010, Section 1879.1 of the Insurance Code, empowers the Insurance Commissioner to convene investigative debriefings with insurance carriers as a tool to fight fraud. This new law authorizes self-insured employers, including public entities that are self-insured employers, and district attorneys to participate in those debriefings if they are convened.
AB 1751 was signed, and extends the existing COVID-19 workers’ compensation injury presumptions set to expire on January 1, 2023 until January 1, 2024. It also expands the provisions applicable to firefighters and police officers to include active firefighting members of a fire department at the State Department of State Hospitals, the State Department of Developmental Services, the Military Department, and the Department of Veterans Affairs and to officers of a state hospital under the jurisdiction of the State Department of State Hospitals and the State Department of Developmental Services.
Newsom also approved SB 1127 which changes workers’ compensation injury presumptions. Under this new law, specified firefighters and peace officers who are claiming illness or injury related to cancer, will have an increase the number of compensable weeks to 240 without limitation as to time from the date of injury.
And under this law employers face higher penalties for delay. If liability for an injury has been unreasonably rejected for specified claims of injury or illness, including hernia, heart trouble, pneumonia, or tuberculosis, among others, for a specified member of law enforcement or a specified first responder, the amount of the penalty will be 5 times the amount of the benefits unreasonably delayed due to the rejection of liability. The bill would limit the penalty to no more than $50,000. The bill would apply this provision to all injuries, without regard to whether the injury occurs before, on, or after the operative date of the bill.
However Newsom vetoed AB 334, a law that would have created a presumption of injury for skin cancer for peace officers and life guards. In his veto message he said “A presumption is not required for an occupational disease to be compensable. Such presumptions should be provided sparingly and should be based on the unique hazards or proven difficulty of establishing a direct relationship between a disease or injury and the employee1 s work. Although well-intentioned, the need for the presumption envisioned by this bill is not supported by clear and compelling evidence.”
He also vetoed SB 284 that would expand the existing rebuttable presumption for PTSD injury to additional classes of active firefighting members and peace officers, and adds public safety dispatchers, public safety telecom and emergency response communication employees to those who qualify for the presumption. The veto message said that “Expanding coverage of the PTSD injury presumption to significant classes of employees before any studies have been conducted on the existing class for whom the presumption is temporarily in place could set a dangerous precedent that has the potential to destabilize the workers’ compensation system going forward , as stakeholders push for similarly unsubstantiated presumptions.”
And in employment law, the Governor approved AB 152 extending COVID-19 supplemental paid sick leave (SPSL) through the end of 2022. It will also set up a program to provide grants of up to $50,000 to qualified small businesses to cover costs incurred for COVID-19 SPSL. The law takes effect immediately, extending the SPSL, which was previously set to expire on September 30, 2022.
Also approved is AB 1041 which expands the class of people for whom an employee may take family leave to care for to include a designated person. A “designated person” means any individual related by blood or whose association with the employee is the equivalent of a family relationship, who is identified at the time the employee requests the leave. An employer is authorized to limit an employee to one designated person per 12-month period.
The approval of AB 1601 made some changes to the “California Worker Adjustment and Retraining Act” or “Cal/WARN Act.” The amended law authorizes the Labor Commissioner to enforce certain notice requirements concerning a mass layoff, relocation, or termination of employees, including call center employees. The bill would grant the Labor Commissioner the authority to investigate an alleged violation, order appropriate temporary relief to mitigate a violation pending completion of a full investigation or hearing, and issue a citation in accordance with certain procedures.
SB 951 was approved, and will boost leave benefits for lower- and middle-income employees who take time off to care for loved ones. It extends increased wage replacement rates for disability insurance and paid family leave that were to sunset at the end of 2022.
SB 1044 adds a new law that prohibits an employer, in the event of an emergency condition, as defined, from taking or threatening adverse action against any employee for refusing to report to, or leaving, a workplace or worksite within the affected area because the employee has a reasonable belief that the workplace or worksite is unsafe, except as specified.
A former California lawyer, Matthew Charles Elstein, 52, of Redondo Beach, has been sentenced to 37 months in prison after he plead guilty to a fraud charge, admitting he lied to clients about winning cases and deceiving them with bogus documents, some with the forged signatures of judges. Elstein was a licensed California attorney from December 1994 until the State Bar of California ordered him inactive in March 2019. He had been formerly with national law firm Tressler LLP,
In a tearful bid for clemency, Elstein told the the judge that he understood the pain he had caused and said a degenerative condition of his frontal lobe may soon diminish his mental capacities. His lawyer told the judge that Elstein’s medical condition contributed to his behavior spinning out of control.
One of Elstein’s victims spoke in court and said he will never salvage his reputation, which Elstein destroyed. “The damage he did is just incapable of ever being repaired,” the man said.
U.S. District Judge Mark Scarsi was not persuaded that a degenerative brain condition Elstein claims to suffer from was either at the root of his criminal conduct or a reason not to sent him to prison. Instead, the judge sentenced him to the prison term prosecutors had asked for.
According to his plea agreement, from June 2015 to July 2018, Elstein engaged in a scheme to defraud his clients by claiming he obtained favorable legal resolutions for them, when in fact the favorable resolutions had never been obtained.
In many cases, Elstein never initiated any legal action. Elstein also admitted to misappropriating funds by informing victims their fees were going into his client trust account, when in fact he directed them to deposit money into his personal bank account.
For example, in June 2016, Elstein falsely informed a corporate client that it had won a $52 million default judgment. He emailed the victim-client a fake court order that contained a judge’s forged signature. Having never actually filed a lawsuit on his client’s behalf, Elstein further misrepresented that the case was improperly under seal due to a United States Department of Justice investigation.
To further his fraudulent scheme, Elstein presented his clients with a fake settlement agreement between the client and the United States Attorney’s Office for the Eastern District of California. It was not until the company reached out to that United States Attorney’s Office to authenticate the settlement agreement that it discovered that the agreement was a forgery.
Elstein also admitted to fabricating depositions in a federal case in Washington state in September 2015. Because these depositions were fake, no one appeared for them. Nonetheless, Elstein had a court stenographer present and made a formal record of the nonappearances. Elstein also billed the client for attending the fake depositions and his travel expenses to Seattle.
Elstein also falsely told the victim that he had obtained a $4.25 million judgment in the victim’s favor and provided the victim with a fake court order containing the forged signature of a judge. When the victim traveled to Seattle to collect the judgment, he was informed by the court that no such case existed.
In total, Elstein’s conduct resulted in losses of at least $358,855 to his victims. At the time of his sentencing he was ordered to pay $254,000 in restitution.
The Division of Workers’ Compensation (DWC) has issued a notice of public hearing for the adoption of the following: regulation section 46.3 Remote Health Medical-Legal Evaluations and amendments to regulation sections 31.3 Scheduling Appointment with Panel QME, 31.5 QME Replacement Requests and form, 34 Appointment Notification and Cancellation and form 108.
The proposed adoption and amendments to the regulations include but are not limited to the following:
– – Extends the time frame to schedule a medical-legal evaluation by an additional 30 days.
– – Clarifies that the time frame for scheduling an evaluation is for both initial and subsequent evaluations.
– – Updates to allow for electronic service of documents.
– – Provides flexibility if the parties agree so that an initial evaluation can occur at any office listed with the medical director.
– – Deletes reference to Agreed Panel QME to be consistent with Labor Code section 4062.2(c).
– – Provides for a QME or AME to reschedule an evaluation within 60 days of the date of the cancellation unless the parties agree beyond the 60 days.
– – Provides a mechanism for Remote Health Medical-legal evaluations if specific criteria are met.
– – Provides a definition of remote health evaluations and identification of office location when a remote health evaluation is conducted.
The implementation of these regulations is anticipated to reduce delays by providing flexibility in examination location and in scheduling.
Members of the public may attend the in-person public hearing on Tuesday, November 15, 2022 at 12 p.m. at the: Elihu Harris State Office Building – Auditorium – 1515 Clay Street – Oakland, CA 94612.
Written public comments can be submitted via US mail, facsimile transmission (FAX) or by email until the end of the day on Tuesday, November 15, 2022 to the attention of Maureen Gray, Regulations Coordinator -Department of Industrial Relations – P.O. Box 420603 – San Francisco, CA 94142 – Fax: (510) 286-0687 – Email: dwcrules@dir.ca.gov
DWC will consider all public comments. The notice of rulemaking, text of the regulations, and the initial statement of reasons can be found on the DIR website.