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California Tightens Cal/OSHA Reporting and Transparency

Governor Brown has signed AB 2334 into law. The new law requires that, as part of occupational injury and illness reporting, employers additionally file specified injury and illness forms electronically with Cal/OSHA no later than February 1 of each year.

And requires Cal/OSHA to develop a searchable database for one of those forms relating to summary information on its web site by a date specified and further requires Cal/OSHA to post those forms on the database within 90 days of receipt. “While posting of injury information at each worksite is important, specific workplace injury and illness information is not accessible to the public and prospective employees in an easily accessible database on the Internet.”

The new law seems to have been triggered by federal initiatives to reduce employer reporting requirements.

The federal Occupational Safety and Health Administration (OSHA) adopted the Improve Tracking of Workplace Injuries and Illnesses rule in 2016. This rule requires electronic submission of certain occupational injury and illness reports by covered employers with at least 250 employees and by smaller employers in high-risk industries. In the fall of 2017,

However, OSHA issued a Notice of Proposed Rulemaking to potentially relax these workplace injury and illness reporting requirements.

In response to the federal initiative to reduce employer reporting requirements, California decided to pass a new law that went the other way – Increase employer reporting requirements.

Along the way, the bill was amended in the senate to authorize the director of the DIR to publish information regarding the costs of administration, workers’ compensation benefit expenditures, and solvency and performance of public self-insured employers’ workers’ compensation programs.

As expected, support and opposition of AB 2334 polarized around the allegiance of advocacy groups. Labor Unions and employee groups were in favor, while employer groups were opposed.

In support, a coalition of labor organizations, including UNITE-HERE, AFL-CIO, states that “by making these annual summaries text-searchable, AB 2334 will simply improve public access to these important reports. We believe that spreading awareness can in turn only foster safer workplaces.”

The bill’s sponsor, California Professional Firefighters, contends that “firefighters and all workers in California will benefit from public access to workplace injury and illness data in a searchable database.”

It further claims that the “current system of posting Form 300A [the annual summary of injuries and illnesses] at the workplace benefits workers at the site or facility but does not provide an opportunity for review by the public. Reporting to Cal/OSHA will strengthen California’s access to data regarding workplace injuries, will help further drive data supported solutions to improve workplace safety and ensure California required reporting is in place if the U.S. Department of Labor relaxes federal reporting rules.”

In opposition, a group of employer organizations, including the California Chamber of Commerce, argues that the bill ‘seeks to publicly shame employers by disclosing for public review on a searchable website, each employer’s injury and illness records, that can be misconstrued and distorted in a manner that does not reflect employers’ commitment to the safety of their employees while providing no advancement of worker safety.”

Death of Driver Run Over by Own Truck Triggers $46K in Fines

Cal/OSHA has issued citations to GreenWaste Recovery Inc. after a waste collection worker was fatally run over by his own truck in San Jose. An investigation found that the employer failed to ensure the truck’s safety restraint was in working order and did not ensure it was being used by workers driving from the right-hand side of the truck.

On March 2, a GreenWaste Recovery worker was driving a waste collection truck to gather recyclables in San Jose. The worker was making a turn while operating the truck from the right-hand side when he fell out and was run over. Cal/OSHA’s inspection determined that the waste collection truck had a safety chain for the truck cab opening that could not be used because a part was missing.

“Collection vehicles with the option to operate the truck from the right-hand side must be equipped with an occupant restraint system such as a door, locking or latching bar, safety chain or strap,” said Cal/OSHA Chief Juliann Sum. “To prevent serious and fatal injuries, employers must maintain occupant restraints in working order and ensure the restraints are used by workers.”

Cal/OSHA issued two general and two serious accident-related citations totaling $46,270 in proposed penalties to GreenWaste Recovery. The serious accident-related citations were issued for the employer’s failure to ensure that occupant restraints were being used by workers driving from the right-hand side of the truck and failure to identify and evaluate the unsafe work practice of workers not using occupant restraints. In addition, the employer received two general citations for not maintaining vehicle safety equipment.

Cal/OSHA conducted inspections of GreenWaste Recovery involving three separate worker injuries in 2016 and 2017. Over the last three years, Cal/OSHA has opened at least 186 inspections with solid waste collection and material recovery employers. Those inspections include a fatal incident last year in La Jolla when a waste collection worker was crushed by his unsecured truck that rolled forward and pinned him against a wall. Department of Industrial Relations Release No.18-77 Page 2

A citation is classified as serious when there is a realistic possibility that death or serious harm could result from the actual hazard created by the violation. Citations are classified as accident-related when the injury, illness or fatality is caused by the violation.

Unlike NFL Players – 53 Pro Wrestlers Lose CTE Case

The National Football League, which entered a concussion-related settlement that has been valued at approximately $1 billion, is far from the only organization affected by the emergence of civil and workers’ compensation claims alleging long-term injuries from repeated blows to the head.

Sports organizations at all levels, from youth clubs to colleges to professional leagues, as well as coaches and other individuals, have faced lawsuits claiming that athletes suffered from such progressive injuries, including an alleged brain disease known as chronic traumatic encephalopathy (“CTE”).

Not all of these claims succeed. U.S. District Judge Vanessa Bryant in Hartford, Connecticut, ruled on Monday that claims filed on behalf of 53 wrestlers like Joseph “Road Warrior Animal” Laurinaitis and Jimmy “Superfly” Snuka were brought too late and some were frivolous.

Bryant also found no basis to suggest the defendants, including WWE Chief Executive Officer Vince McMahon, knew of any link between wrestling and CTE before 2007, which was after most of the plaintiffs had retired.

“The court is also unwilling to find that the diagnosis of one wrestler with CTE is sufficient to imbue WWE with actual awareness of a probable link between wrestling and CTE,” Bryant added.

CTE is a neurodegenerative disease often caused by repeated trauma to the head, and cannot be diagnosed before death.

A large part of Bryant’s 40-page decision focused on the plaintiffs’ lawyer Konstantine Kyros, who the judge said “persistently” ignored her orders and caused a “considerable waste” of time and resources over 3-1/2 years of litigation.

“The opinions expressed about my strong advocacy are inaccurate, bizarre and unworthy of the court,” Kyros said in an email to Reuters on Tuesday, adding that Bryant should have let the case go to a jury. “We trust the wrestlers’ claims will be better received in the appeals courts,” he added.

Jerry McDevitt, a partner at K&L Gates representing Stamford, Connecticut-based WWE, welcomed the ruling according to the Reuters report.

“It was a thoughtful decision,” he said in an interview. “The WWE did not engage in misconduct, and had educated wrestlers about the risks.”

Laurinaitis has experienced memory loss, dizzy spells and sleep apnea, according to an amended complaint filed last November, while Snuka had CTE, dementia and Alzheimer’s disease when he died in January 2017 at age 73.

UCSF Surgeon to Serve 41 Months in Prison

Christopher Owens, a former UCSF surgeon, was sentenced to 41 months in prison for unlawfully prescribing oxycodone hydrochloride without a medical purpose. He worked at the university-affiliated Veterans Affairs Medical Center in San Francisco.

Owens was arrested in Indiana on July 11th, 2017, as part of the largest health care fraud enforcement action in the Department of Justice’s history. The former San Francisco vascular surgeon initially entered a not guilty plea on the drug charges, 36 counts of distributing oxycodone.

Owens’ profile on the university website said he is a 1998 graduate of Indiana University’s school of medicine and listed nine research grants and 70 published studies under his name. Another site listed him as a specialist in vascular surgery, aneurysms, deep vein thrombosis and diseases of the carotid artery.

One of his alleged victims, 35 year old Danielle Pattillo, was found dead in her apartment under what investigators called suspicious circumstances. Pattillo worked at the Veteran’s Affairs Medical Center with Owens. She mysteriously died in what investigators initially thought was a mere drug overdose.

But Paul Pattillo, who was in the midst of a divorce with Danielle, said she had become involved with Owens. She was found deceased and he was the last person who was with her.

Owens was immediately placed on investigatory leave by the University, UCSF fired him five months later after he was booked on local drug charges. But those charges with the San Francisco District Attorney’s office never stuck.

DEA agents also arrested Owens as part of the nationwide crackdown on fraudulent opioid prescriptions spearheaded by Attorney General Jeff Sessions.

The federal indictment alleged that between September of 2012 and June of 2015, Owens, who had moved to Indiana, intended to act outside the course of usual professional practice and without a legitimate medical purpose when he prescribed oxycodone on numerous occasions. In sum, Owens is charged with 36 counts of illegally distributing oxycodone.

His California Physicians and Surgeons certificate was revoked by the Board of Medicine in June, 2017.

Owens pleaded guilty to Count 36 of the indictment on March 20, 2018. According to his open plea application filed with the court, Owens acknowledged he prescribed the drugs without a legitimate medical need and outside of the course of medical practice.

In sentencing Owens, Judge Alsup stated, “[Owens] was not running a pill mill, . . . but he was doing something just as bad . . .. He used that prescription pad to feed a habit.”

In addition to the prison term, Judge Alsup ordered Owens to serve three years of supervised release to begin after his prison term is completed and a $7,500 fine. Judge Alsup ordered Owens to surrender and begin serving his sentence on December 3, 2018.

CDI Files Largest Fraud Case in its History

Humira is one of the best selling drugs in the world. Televised commercials show that a woman with rheumatoid arthritis can wash her puppy in the bathtub, another with colitis can stroll happily through a fair packed with food vendors, while a third suffering from psoriasis can go to the gym without hiding her neck.

The price of Humira, an anti-inflammatory drug dispensed in an injectable pen, has risen from about $19,000 a year in 2012, to more than $38,000 today, per patient, after rebates. Its maker, AbbVie, which was spun from Abbott Laboratories in 2013, has now been accused of illegal kickbacks in the largest health care fraud case in the California Department of Insurance History. Humira accounted for more than two-thirds of AbbVie’s $25.6 billion in revenue in 2016.

The California Insurance Commissioner filed a civil fraud complaint in Alameda County Superior Court on behalf of the State of California against AbbVie alleging the company gave illegal kickbacks to health care providers to prescribe HUMIRA – an expensive and dangerous drug with potentially deadly side effects. The case, which is filed on behalf of the State under the Insurance Frauds Prevention Act, alleges that private insurers have paid out $1.2 billion in HUMIRA-related pharmacy claims, making this the largest health insurance fraud case in department history.

According to the complaint, AbbVie engaged in a far-reaching scheme including both classic kickbacks – cash, meals, drinks, gifts, trips, and patient referrals – and more sophisticated ones – free and valuable professional goods and services to physicians to induce and reward HUMIRA prescriptions. These professional goods and services included free insurance processing and prior authorizations, gifts of medical practice management hardware and software, and even marketing assistance, all of which save physicians valuable staff time and resources.

AbbVie spent millions convincing patients and health care professionals that AbbVie Ambassadors were patient advocates – in fact, the Ambassadors were HUMIRA advocates hired to do one thing, keep patients on a dangerous drug at any cost,” said Insurance Commissioner Dave Jones. “Pharmaceutical companies know financial inducements are illegal, and patients depend on their health care professionals for straight forward honest information about their care and medication risks. In this case, patient care was traded for $1.2 billion in ill-gotten gains.”

The key to AbbVie’s success in pulling off its scheme, and among the most troubling aspects of it, is the fact that AbbVie inserts its own personnel directly into the homes of patients. When doctors prescribe HUMIRA, AbbVie sends its registered nurses—which AbbVie calls “Ambassadors” nto patients’ homes, representing them to be an extension of the doctor’s office.

The system AbbVie established takes advantage of the Ambassadors’ nursing background and direct access to patients to serve the biopharma giant’s financial interest in getting patients to take HUMIRA by downplaying its risks. Ambassadors are trained to send patient complaints directly to AbbVie and not the patients’ treating physicians. Ambassadors also provide unbalanced information, as they are trained to tout the drug while at the same time also instructed on methods to avoid directly answering patient questions about risks of the medication, including those pertaining to HUMIRA’s serious and important side effects.

At no cost and considerable gain to the physician’s office, AbbVie nurses provide pharmacy and insurance authorization assistance, open enrollment resources, paperwork help, advice on insurance products, and other services, all of which provide a substantial value and save physicians’ time, money, and resources. The catch is AbbVie only provides the Ambassadors as long as the physicians continue to prescribe AbbVie’s drug instead of selecting another course of treatment.

The allegations of AbbVie’s misconduct were brought to the attention of the department by a whistleblower. The whistleblower, referred to legally as a relator, is a registered nurse and was employed as an AbbVie Nurse Ambassador in Florida. The relator continues to be a party to this action and is represented by Rachel Geman, Robert Nelson,and Jason Lichtman of the law firm of Lieff Cabraser Heimann & Bernstein, LLP.

Prominent Newport Beach Ortho Faces Rape Charges

Dr. Grant William Robicheaux billed himself as an elite orthopedic surgeon catering to Newport Beach’s famous and wealthy. It was a lifestyle he pushed not only in his medical work but on realty TV, where he appeared on a Bravo dating show wearing his hospital scrubs and a wide smile.

But now Orange County prosecutors have accused Robicheaux and his girlfriend of drugging and raping two women in separate assaults and said they suspect there are many more alleged victims. The two have been arrested, and their arraignment has been scheduled for Oct. 25, 2018, at 8:30 a.m. in Department H-7, Harbor Justice Center, Newport Beach.

Robicheaux graduated from Louisiana State University School of Medicine in New Orleans and has been licensed since 2009. He reports being certified by the American Board of Orthopedic Surgery. The California medical board has opened an investigation into Robicheaux’s conduct.

Orange County Dist. Atty. Tony Rackauckas said in a news conference that Robicheaux and Cerissa Laura Riley seemed like “clean-cut, good-looking people” but used their charms to prey on women they would meet in local bars and festivals such as Burning Man.

Robicheaux, 38, and Riley, 31, are accused of drugging their victims and bringing them back to his Newport Beach bachelor’s pad, where they would sexually assault and rape them.

The article in the Los Angeles times reports that Robicheaux appeared in 2014 on the Bravo’s show “Online Dating Rituals of the American Male,” which followed him as he looked for a girlfriend. He also was named “Orange County’s Most Eligible Bachelor” by Orange Coast Magazine in 2013.

Rackauckas said detectives with search warrants found a video of the sex acts with one of the two identified victims. But he said they also saw what he describes as numerous other videos and photographs on the pair’s phones of other potential victims. “There are a substantial number of videos, I cannot tell you if it is 10s or 100s, it is certainly more than 10s,” the top prosecutor said in an interview. “It appears they are highly intoxicated beyond the ability to consent or resist, they are barely responsive to the defendants’ sexual advances,” he said. Rackauckas said his office cannot make those images public, but everything suggests those women were also victims of assault.

Those videos were recovered this year by Newport Beach detectives. Some of the images come from festivals across the western U.S. including Burning Man and the Splash House in Palm Springs, Rackauckas said.

The surgeon and his girlfriend came to the attention of authorities when a young woman screamed for help and the physician’s neighbor called Newport police on Oct. 2, 2016. A 32-year-old woman met the couple in a local restaurant in April 2016 and they invited her to a party, authorities alleged. She told authorities she consumed large amounts of alcohol before they invited her to Robicheaux’s residence for an afterparty. But once inside, prosecutors allege, they plied her with piles of drugs and then raped her.

The woman immediately contacted the police the next morning to report that she been assaulted and a subsequent test of her blood showed multiple controlled substances in her body, Rackauckas said.

Prosecutors alleged Robicheaux and Riley struck again Oct. 2, 2016. They are accused of drinking alcohol with a second woman at a Newport Beach bar until the alleged victim was no longer conscious. They brought her to Robicheaux’s apartment and began “sexually assaulting her with the intent to commit rape,” officials said.

A subsequent search of Robicheaux’s home on Jan. 9. 2018, turned up large quantities of illegal drugs along with a small arsenal of firearms.Rackauckas said those drugs included GHB, the so-called date rape drug, MDMA and cocaine.

Applicant Waived Right to New Panel for Untimely QME Eval

Janelle Bogue claimed an injury to her back, neck, shoulders, chest, knee and right ankle while employed as an accounting tech for the County of Solano.

On November 3, 2017, the Medical Unit issued a QME Panel in response to defendant’s request.. Dr. D’Amico was the last remaining physician after both parties’ respective strikes. Applicant avers that her attorney called Dr. D’Amico’s office on November 20, 2017, and as the doctor was scheduling beyond 60 days, directed his assistant to request a replacement panel.

On December 13, 2017, defendant sent a letter to applicant advising her that she was scheduled to be evaluated by Dr. D’Amico on February 12, 2018.

Applicant and defendant both sent letters to the PQME describing the issues to be addressed at the evaluation. Applicant attended the February 12, 2018 PQME evaluation as scheduled.

On February 13, 2018, applicant sent a letter to Dr. D’Amico asking him not to issue a report as there was a dispute as to whether he was the correct PQME.

On March 2, 2018, defendant filed a Declaration of Readiness to Proceed to an expedited hearing on the issue of applicant’s allegation that Dr. D’Amico should not serve as the PQME. On March 15, 2018, applicant objected to the Declaration of Readiness to Proceed alleging that she had requested a replacement QME panel.

At the expedited hearing, applicant contended that a replacement panel is appropriate as she requested one on December 18, 2017; applicant acknowledges that neither defendant nor the Medical Unit apparently received the request.

Defendant contended that Labor Code § 4062.2 authorized it to schedule the PQME and that Rule 31.3(e) allows the party with the right to schedule a PQME appointment to waive the requirement that a PQME be scheduled in 60 days.

On April 17, 2018, the WCJ issued the Findings wherein he determined that Dr. D’ Amico was duly selected to serve as the PQME and that nothing in the record supports a determination that he should not continue to do so.

Applicant filed a Petition for Removal, which was denied in the panel decision of Janelle Bogue v County of Solano.

Applicant had the initial right to arrange an appointment for an evaluation with the PQME per section 4062.2(d). As she failed to inform defendant that she could not obtain an appointment within 10 days of Dr. D’ Amico’s selection, under the circumstances here, the right to schedule the appointment switched to defendant.

The WCJ thus correctly concluded that he should remain as the PQME.

15 Workers Recover $450K in Wage Theft Case

Labor Commissioner Julie A. Su has secured a settlement to recover more than $450,000 in wages, penalties and interest for 15 residential care workers who suffered overtime and other wage theft violations. L’Chaim House agreed to make the payments after the Labor Commissioner’s Office sued to block the San Rafael-based residential care business from transferring ownership of its real estate to evade penalties. A lien against the real estate will ensure the payments are made.

The Labor Commissioner’s Office opened an investigation in December 2015 after workers at L’Chaim House’s two locations reported labor law violations. Investigators audited 36 months of the employer’s payroll records and found caregivers frequently worked more than 12 hours a day without overtime pay.

Citations totaling $486,399 were issued in February 2016 for minimum wage, overtime, meal period and wage statement violations. L’Chaim House appealed the fines, which were upheld in both an administrative hearing and in a decision by the Sonoma County Superior Court on September 20, 2017.

Shortly after the citations were issued, the owner of L’Chaim House placed its real estate in a trust to avoid legal liability for the wage citations.

The Labor Commissioner filed a lawsuit on September 29, 2017 in Marin County for civil fraudulent transfer. As a result of the lawsuit, L’Chaim House agreed to pay more than $450,000 of the penalties and wages owed. L’Chaim House also committed to full compliance with employment and labor laws going forward as part of the settlement.

The 15 workers will receive settlement payments ranging from $49 to $77,807, with an average payout of $25,008 each. The settlement payment also included $74,900 in civil penalties payable to the state. In addition, part of the amount owed – $89,080 for meal period penalties – remains in dispute before an appellate court. If upheld, $77,430 of those penalties would also go to the workers with the remainder to the state.

In 2016, Governor Edmund G. Brown Jr. signed into law Senate Bill 588 (de León), which gave the Labor Commissioner’s Office more tools to collect citations and wage payment orders. The law added sections to the labor code allowing the Labor Commissioner to levy the bank accounts and receivables of employers that fail to comply with judgments for unpaid wages. Since the law went into effect, the Labor Commissioner has issued more than 4,848 levies. These levies have resulted in more than $3.4 million in payments and payment agreements for workers.

The law also enabled the Labor Commissioner’s Office to issue stop orders against scofflaw employers until they pay their workers. The Labor Commissioner has investigated potential actions related to 166 different judgments, and issued 29 stop orders. Over the last year, these investigations and stop orders led to the recovery of more than $1,099,800 in payments and payment plans for wages owed to workers.

September 17, 2018 Edition


Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: County of L.A. Pre-Employment Physical Case Settles for $.5M, Discrimination for Refusal to Hire Medical Marijuana Home User, Surveillance Convicts Nursing Assistant, Man Sentenced for Pharmaceutical Trafficking, Senators Want the VA to Prescribe Marijuana to Vets, New Concept – High Impact Chronic Pain (HICP), RAND Says 1/3 of Opioid Prescriptions Unjustified, Scientists Re-generate Wound Tissue, Person Behind Opioid Epidemic Patents Addiction Treatment, New Study – Why Do Some Feel More Pain?

Coca-Cola Considering Cannabis Drinks – “For Pain”

Coca-Cola Co. said it’s eyeing the cannabis drinks market, becoming the latest beverage company to tap into surging demand for marijuana products. Coke’s possible foray into the marijuana sector comes as beverage makers are trying to add cannabis as a trendy ingredient while their traditional businesses slow.

According to a report from BNN Bloomberg Television, the company says it’s monitoring the nascent industry and is interested in drinks infused with CBD — the non-psychoactive ingredient in marijuana that treats pain but doesn’t get you high. The Atlanta-based soft drinks maker is in talks with Canadian marijuana producer Aurora Cannabis to develop the beverages.

“We are closely watching the growth of non-psychoactive CBD as an ingredient in functional wellness beverages around the world,” Coca-Cola spokesman Kent Landers said in an emailed statement to Bloomberg News. “The space is evolving quickly. No decisions have been made at this time.” Landers declined to comment on Aurora.

Coca-Cola has already been diversifying as consumption of soda continues to decline. The company, with its iconic brands ranging from Coke and Sprite to Powerade, announced it will acquire the Costa Coffee chain for $5.1 billion in August, and has expanded into other products including juice, tea and mineral water over the past decade.

Last month, Corona beer brewer Constellation Brands Inc. announced it will spend $3.8 billion to increase its stake in Canopy Growth Corp., the Canadian marijuana producer with a value that exceeds $10 billion.

Molson Coors Brewing Co. is starting a joint venture with Quebec’s Hexo’s Corp., formerly known as Hydropothecary Corp., to develop cannabis drinks in Canada. Diageo PLC, maker of Guinness beer, is holding discussions with at least three Canadian cannabis producers about a possible deal, BNN Bloomberg reported last month. Heineken NV’s Lagunitas craft-brewing label has launched a brand specializing in non-alcoholic drinks infused with THC, marijuana’s active ingredient.

The discussions with Aurora are focused on CBD-infused drinks to ease inflammation, pain and cramping, according to the BNN Bloomberg report. CBD, or cannabidiol, is the chemical in the pot plant often used for medicinal purposes, and doesn’t produce the high that comes from THC, or tetrahydrocannabinol. There are no guarantees of any deal between Aurora and Coca-Cola, according to the report. Aurora Comment

Heather MacGregor, a spokeswoman for Aurora, said in an emailed statement that the cannabis producer has expressed specific interest in the infused-beverage space, and intends to enter that market, BNN Bloomberg’s David George-Cosh reported.

While marijuana remains illegal at the national level in the U.S., there is growing acceptance of the use of CBD derived from marijuana to treat illnesses ranging from chronic pain to anxiety and epilepsy. The first-ever medical treatment derived from a marijuana plant will hit the U.S. market soon, after regulators in June gave an epilepsy treatment by GW Pharmaceuticals Plc the green light.