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Former Assemblyman Thomas Calderon Sentenced in Bribery Case

Thomas M. Calderon, a former member of the California State Assembly who became a political consultant, was sentenced this week to one year and one day of incarceration after he pleaded guilty to money laundering for allowing bribe money to be funneled through his firm.

Tom Calderon was sentenced by United States District Judge Christina A. Snyder, who ordered that the sentence be served half in federal prison and half in home detention. In addition to the period of incarceration, Judge Snyder ordered Tom Calderon to serve 100 hours of community service.

Tom Calderon, 62, of Montebello, pleaded guilty on June 6 to one count of money laundering and admitted that he agreed to conceal bribe payments coming from two undercover FBI agents by having the money go through his political consulting company, the Calderon Group.

The bribes were made to Tom Calderon’s brother, Ronald S. Calderon, who at the time was a California State Senator. Ron Calderon pleaded guilty on June 21 and admitted accepting bribes from the undercover agents and a businessman in exchange for performing official acts as a legislator. Ron Calderon, 59, also of Montebello, is scheduled to be sentenced by Judge Snyder next Monday, although he has asked to continue his sentencing date.

When he pleaded guilty, Tom Calderon specifically admitted that in 2013 he deposited a $30,000 bribe payment from an undercover agent into the Calderon Group’s bank account and then wrote a $9,000 check to Ron Calderon’s daughter.

“Tom Calderon was all too aware of the bribe payments to his brother and that his brother had agreed to a quid pro quo with the undercover agents,” said United States Attorney Eileen M. Decker. “Tom Calderon facilitated these bribe payments by helping to conceal his brother’s corrupt activities from the public.”

“Today’s sentencing sends a message to those interested in using access to public office in order to reap personal benefits that they will be held responsible for their actions,” said Deirdre Fike, the Assistant Director in Charge of the FBI’s Los Angeles Field Office. “Mr. Calderon used his family ties to benefit personally at the expense of the constituents represented by his brother’s office.”

Tom Calderon and his brother were both indicted by a federal grand jury in 2014. Tom Calderon was charged with conspiring with his brother to commit money laundering and seven substantive counts of money laundering. The money laundering charge that Tom Calderon pleaded guilty to was count 22 in the indictment.

“IRS Criminal Investigation tirelessly untangled the web of illicit transactions that lead to Thomas Calderon being held accountable for his role in this scheme,” stated IRS Criminal Investigation’s Acting Special Agent in Charge, Anthony J. Orlando. “IRS CI remains committed to investigating those who engage in political corruption and tarnish our democratic system.”

Workers’ Comp “Opt-Out” Movement Faces Legal Setback

Two states have laws that allow employers to opt-out of the state-regulated workers’ compensation system: Oklahoma and Texas. Texas has always had this law; Oklahoma recently adopted a variation of it. Nearly 30 Oklahoma employers had been approved for the opt-out system by the end of 2014, with many others taking a wait-and-see approach. Tennessee lawmakers introduced their own version of opt-out legislation which failed to become law.

But now we are back to just one opt-out state – Texas.

The Oklahoma Supreme Court Tuesday struck down the “opt out” provision of the state’s workers’ compensation law, ruling it is an unconstitutional special law that gives employers the authority to single out injured workers for inequitable treatment.

In a 7-2 ruling, the state’s highest court said the “opt out” provision “creates impermissible, unequal, disparate treatment” of injured workers and “does not guarantee members of the subject class, all employees, the same rights when a work related injury occurs,” in violation of the Oklahoma Constitution. Only Texas and Oklahoma have “opt out” provisions in their workers’ compensation systems.

Oklahoma’s Opt Out Act allows employers to “opt out” of the state’s workers’ compensation system and create their own plan. But employers who create their own plans can include conditions for recovery that make it more difficult for an injured worker to recover for a work-related injury than someone covered by the state’s plan, according to the ruling.

“The statutory language itself demonstrates that injured workers under the Opt Out Act have no protection to the coverage, process or procedure afforded their fellow employees,” it says.

The case involves a work-related injury sustained by an employee of Dillard’s Department Stores, Jonnie Yvonne Vasquez, who alleged she injured her neck and shoulder while lifting shoe boxes while working on Sept. 11, 2014. The ruling states that it applies to Vasquez’s case as well as all other cases on appeal and pending before the Workers Compensation Commission. Only 65 employers have elected to leave the state’s workers’ compensation system and create their own plans, said Vasquez’s attorney, Bob Burke of Oklahoma City.

In a dissenting opinion, Justices James Winchester and Steven Taylor said they would not invalidate the “opt out” provisions but would require the Workers Compensation Commission to determine whether an employee covered by an employer’s workers’ compensation plan was denied benefits the employee would have received under the state’s plan and require the employer plan to meet the requirements of the Opt Out Act.

In a statement, Oklahoma Attorney General Scott Pruitt said the Supreme Court’s ruling was “out of touch” and an attempt to reverse legislative actions that he said had lowered the cost of workers’ compensation insurance in the state. “Unfortunately, today’s decision is yet another action by the Oklahoma Supreme Court that dismantles these reforms piece by piece,” Pruitt said.

The ruling is the latest setback for sweeping Oklahoma workers’ compensation guidelines adopted by the Legislature in 2013. In April, the Supreme Court invalidated provisions that allowed deferral of payments for permanent partial disability for workers who eventually return to their jobs.

Revamping the state’s workers’ compensation system has been a priority for Republican legislative leaders who claim the state’s previous system was a detriment to business and industry in the state. Republican Gov. Mary Fallin has supported changes in the law.

But Burke said 38 separate provisions of the 2013 workers’ compensation law have been found unconstitutional, inoperable or invalid since they went into effect.

“It’s a great victory for the working men and women of this state,” Burke said. “We can’t allow the injured worker to be royally shafted like this.”

Berkshire Faces New Charges by Another Insured Employer

Three days after Berkshire Hathaway Inc. subsidiaries Applied Underwriters and its California Insurance Co affiliate agreed to stop selling disputed workers’ compensation policies in California, the company has again been has been sued now by a New York bicycle courier company over another alleged illegal scheme to cheat employers buying workers’ compensation policies.

California’s insurance commissioner ruled against Berkshire in June over workers’ compensation policies after determining that the company duped a small business, Shasta Linen Supply, and circumvented a review of rates. Earlier this month, the company agreed to stop selling the policies in dispute in California. The regulator said the Berkshire businesses charged customers’ rates which hadn’t been approved by the regulator.

According to a Reuters report, the new civil complaint, filed late Friday by Breakaway Courier Systems, came as Berkshire’s Applied Underwriters unit faces scrutiny over its workers’ compensation policies, including some that have been banned by California, Vermont and Wisconsin.

Breakaway, with about 300 employees, accused Berkshire and Applied of “siphoning” premiums through a web of illegal shell companies, with diverted premiums going to unlicensed out-of-state insurers.

The plan amounted to a “reverse Ponzi scheme” where unsuspecting employers expecting to buy affordable policies instead bought costly “reinsurance” requiring them to cover each other’s losses, leaving taxpayers on the hook for shortfalls when too many workers are injured on the job, Breakaway said.

“Breakaway thought it was purchasing a workers’ comp policy with a profit-sharing component if its losses were low,” Raymond Dowd, its lawyer, said in an interview. “Instead it purchased a complex derivative swap labeled misleadingly as a ‘reinsurance participation agreement’ that put all the risk on Breakaway.

“Berkshire’s schemes break multiple laws, including that you cannot collect insurance premiums if you are not licensed,” Dowd added.

Neither Berkshire nor Applied immediately responded to requests by Reuters for comment.

The lawsuit, filed in the state supreme court in Manhattan, seeks at least $18 million of damages, plus a declaration that the reinsurance participation agreements (RPAs) are void and against public policy.

It shines a spotlight on a lesser-known part of Berkshire’s insurance operations, which also include Geico car insurance and General Re reinsurance.

In the recently settled California case, both insurers denied wrongdoing. California Insurance Commissioner Dave Jones said their sale of a policy to Shasta Linen Supply Inc of Sacramento subjected the employer of 63 to hundreds of thousands of dollars of extra costs.

Similarly, Breakaway’s RPA put that company at “imminent financial risk,” and was “not understandable” by ordinary purchasers, Martin Schwartzman, former first deputy superintendent of New York’s insurance department, said in a filing accompanying the complaint.

The case is Breakaway Courier Corp d/b/a Breakaway Courier Systems v. Berkshire Hathaway Inc et al, New York State Supreme Court, New York County, No. 654806/2016.

DWC Posts Amendments to Home Health Fee Schedule

The Division of Workers’ Compensation (DWC) today posted amended draft regulations to implement a fee schedule for home health care services. Members of the public are invited to present written comments regarding the proposed modifications to dwcrules@dir.ca.gov until 5 p.m. on September 26, 2016.

The proposed regulations set forth a payment methodology and fees for services provided to injured workers in the home setting, including skilled care by licensed medical professionals as well as unskilled personal care and domestic services.

California Senate Bill 863 requires DWC’s Administrative Director to establish a fee schedule for home health care services, which range from skilled nursing and therapy services to unskilled personal care or domestic care services.

Following the Office of Administrative Law’s publication of DWC’s initial draft of these regulations, a public hearing was held November 30, 2015 for comment. Upon review of the comments received during the first 15-day comment period that ended on June 8, 2016, DWC has amended its regulations to provide additional detail and clarity. The regulations also refer to the Medical Treatment Utilization Schedule (MTUS), which covers home health care services. The MTUS rulemaking documents are posted online.

The updated notice and draft regulation text are posted online.

Trucking Company Settles Litigation Over Comp Coverage

Central Freight Lines Inc. and Trendsetter HR have settled a lawsuit over workers’ compensation, ending a three-year litigated dispute.

The carrier, based in Waco, Texas, signed a deal with Trendsetter in 2008 to perform administrative services for the company and its employees. For more than three years, Central Freight alleged Trendsetter accepted payments but failed to deposit the funds for workers’ compensation coverage.

Central Freight stopped making payments after it conducted an audit, and Trendsetter sued for breach of contract in 2013.

However, a jury in December 2015 ruled Trendsetter breached the contract and awarded Central Freight $1.85 million. Jurors found that Trendsetter-HR and its owner, D.W. Bobst, failed to honor the terms of the contract and wrongfully billed Central Freight for services and coverage that were never provided. Central Freight is asking that interest be added to the verdict amount, which could push the final award to more than $2 million.

“It’s rare to receive a verdict of this magnitude in a counterclaim, but Trendsetter’s failures and wrongs were particularly egregious,” said attorney William Chamblee, who is with the Dallas firm of Chamblee Ryan, which represented Central Freight. “Trendsetter, its affiliates and its owner made numerous misstatements to my client in an effort to hide the facts and justify their wrongdoing,” Chamblee said.

Trendsetter reportedly signed a contract with Central Freight in 2008 before adding several amendments to broaden the administrative services provided to the company and its employees, according to a statement from the law office. “For more than three years, Trendsetter accepted payments from Central Freight but failed to properly deposit the funds for workers’ compensation coverage,” according to the statement.

Central Freight Lines ranks No. 94 on the Transport Topics Top 100 list of the largest U.S. and Canadian for-hire carriers, and has operations in California.

The case was on appeal when the deal was reached. “Central is satisfied that this settlement will allow both parties to move on.” said its attorneys.

Trendsetter owner D.W. Bobst said in a statement that neither he nor any affiliates were implicated in any wrongdoing, calling this a resolution to a contract dispute.

Terms of the settlement were not disclosed

Trendsetter also sued AIG for failure to provide workers’ compensation to Central Freight Lines, claiming that it directed the insurer to do so. That case is ongoing.

Another Generic Drugmaker Targeted by DOJ Investigation

Reuters Health reports that Taro Pharmaceutical Industries Ltd and two of its senior officers received grand jury subpoenas last week in connection with a federal antitrust investigation into generic drug pricing. The company said in an SEC filing late on Friday it received subpoenas on Thursday from the U.S. Justice Department’s Antitrust Division.

The SEC filing discloses that “On September 8, 2016, Taro Pharmaceuticals, U.S.A., Inc. (“Taro”), as well as two senior officers in its commercial team, received grand jury subpoenas from the United States Department of Justice, Antitrust Division, seeking documents relating to corporate and employee records, generic pharmaceutical products
and pricing, communications with competitors and others regarding the sale of generic pharmaceutical products, and certain other related matters.”

“Taro intends to respond to the subpoena and otherwise cooperate with the Department of Justice investigation.”

Taro is the maker of many popular generic over-the-counter ointments, including antibiotic pain relief and Hydrocortisone creams used to relieve itching and minor skin rashes.

It also manufacturers prescription creams such as Clobetasol, which treats a variety of skin disorders including eczema and psoriasis.

A story published by the Boston Globe last year highlighted concerns about the rising prices of some generic drugs, including Clobetasol, which is made by several companies. The newspaper reported that the price of Clobetasol rose to $4.15 a gram in 2015 from $0.26 in 2013.

It was not clear from Friday’s filing whether Clobetasol is among the products being reviewed by the Justice Department.

The rising cost of prescription medications has become a high-profile issue over the past year, with various companies coming under scrutiny for drastically raising the prices of their drugs and devices.

Companies including Valeant Pharmaceuticals and Turing Pharmaceuticals were both targets of congressional investigations earlier this year for hiking the price of life-saving drugs, with Turing also facing antitrust probes by the Federal Trade Commission and the New York attorney general.

Separately, Valeant faces investigations by federal prosecutors into its pricing and distribution.

More recently, Mylan NV has come under fire for raising the price of its allergy auto-injector Epipen. The New York attorney general disclosed earlier this month he had launched an antitrust probe into the company’s contracts to provide Epipens to schools. The company is also facing congressional probes.

The issue has also resonated on the campaign trail, with Democratic presidential nominee Hillary Clinton saying that if elected in November, she would create an oversight panel to protect U.S. consumers from large price hikes on long-available life-saving drugs.

Allstate Wins Second L.A. Fraud Civil Judgment

Los Angeles County Superior Court ruled in favor of Allstate Insurance Company and the State of California in a lawsuit topping more than $2.3 million that ends the illegal ownership, kickbacks and fraudulent operation of two medical clinics in Los Angeles.

In its lawsuit, Allstate alleged chiropractor Byum Suk Kim violated the state’s Insurance Frauds Prevention Act when he submitted to Allstate more than 90 claims for treatment of patients at the two clinics that were illegally owned in violation of California’s Moscone Knox Professional Corporation Act. In its complaint, Allstate alleged the two clinics, Wilshire Spinal Disc Clinic, Inc. and Allied Medical, Inc. were held out to the public as legitimate medical clinics incorporated in the State of California, but were actually owned and operated by Byum Suk Kim, D.C. in violation of the Moscone Knox Professional Corporation Act and Business & Professions Code sections 2052, and 2400, commonly referred to as the “corporate practice of medicine bar.” Both clinics are no longer operating.

Judge Terry A. Green agreed with Allstate and ordered Kim to pay $1.8 million in penalties, plus over $582,000 in assessments and fees – a $2.3 million judgment.

“Submitting even one false insurance claim is more than just a bad idea; it’s fraud, and insurance fraud is a crime,” said Allstate’s California Field Senior Vice President Phil Telgenhoff. “Fraud drives up the cost we all pay for insurance by stealing millions of dollars from insurers. This cannot and will not be tolerated in California or anywhere. Allstate will fight fraud to help protect our customers and keep insurance costs down.”

Allstate’s suit identified Kim as a chiropractor owning and operating the two medical clinics. The judgment was based on evidence submitted by Allstate showing Kim engaged in clinical and billing fraud in connection with claims that were submitted to Allstate, which included hundreds of individual violations of California Penal Code section 550. Specifically, the evidence showed Kim was responsible for the preparation of 91 separate reports for patients allegedly treated by him at Wilshire and Allied, each of which contained misrepresentations in violation of section 550 regarding the level and type of treatment purportedly provided.

Additionally, the billing records for the treatment allegedly provided were likewise fraudulent, as the evidence presented by Allstate showed there was illegal “up-coding” for services. The judgment was based on Allstate proving the medical records, narrative reports, and bills of patients purportedly treated by Kim amounted to billing and clinical frauds perpetrated and carried out by Kim on a systematic basis at both Wilshire Spinal Disc Clinic, Inc. and Allied Medical, Inc.

This is the second multimillion-dollar ruling against insurance fraud that Allstate has successfully argued in Los Angeles County Superior Court in 2016.

WCIRB Thinks Proposed Law Means Lower Comp Rates

The Insurance Journal reports that the governing committee of California’s Workers’ Compensation Insurance Rating Bureau on Wednesday approved an amended, and reduced, rate filing for Jan. 1, 2017 workers’ compensation rates. It did so based on the hope that California Gov. Jerry Brown signs two bills into law, and that those bills end up producing a cost savings in the state’s massive workers’ comp system.

All bets are off if Brown doesn’t sign them.

“Nothing set in stone for sure unless the governor signs both of those bills,” said Jerry Azevedo with the Workers’ Compensation Action Network, a group that represents the interests of employers.

The committee on Wednesday recommended a 4.3 percent reduction. Just a month earlier it had recommended a 2.6 percent reduction, which it sent to the California Department of Insurance. The move by the WCIRB committee was surprising for some.

“I’m kind of surprised that the two new bills that are likely to be signed would work into any immediate savings,” said John Norwood, a lobbyist and managing partner of Sacramento-based Norwood and Associates.

The bills WCIRB is pinning its hopes on are Senate Bill 1160 and Assembly Bill 1244.

AB 1244 is designed to remove from the workers’ comp system doctors found to have committed a felony or misdemeanor involving fraud or abuse of the Medi-Cal program, Medicare or the workers’ comp system itself. The bill would also keep those doctors from filing liens.

According to the Department of Workers’ Compensation, 10 percent of liens filed between 2011 and 2015 were filed by providers with fraud indictments or convictions.

The other bill, SB 1160, places limitations on the utilization review (UR) process, and also would stay any physician or provider lien upon the filing of criminal charges against them for specified offenses involving medical fraud.

Impact projections from the WCIRB shows an estimated reduction in UR costs from SB 1160 but an increase in medical costs.

Uber Wins Next Round in Classification Battle

Uber won a courtroom victory on Wednesday when an appeals court ruled that drivers are subject to individual arbitration in a lawsuit over background checks, a ruling that might help the ride-hailing company fend off another costly class action lawsuit filed by its drivers.

While the Ninth U.S. Circuit Court of Appeals found that agreements signed by two former drivers for the service over background checks “clearly and unmistakably” require legal disputes be settled by a private arbiter, the reasoning may be applied to another class action lawsuit filed by drivers over the company’s employment classifications.

Uber agreed to settle that classification lawsuit earlier this year — an agreement that was rejected by a federal judge last month. Arbitration is a method frequently used by companies for resolving legal conflicts outside of the court system.

Uber Technologies Inc.’s message to the judge who was asked to approve its $100 million settlement with drivers last month was clear: take it or leave it. Bloomberg reports there is an escalating game of courtroom brinkmanship, Uber has hit what was an impasse with U.S. District Judge Edward Chen who presides over the federal class action suit pending in San Francisco, its demand that, as part of the deal, he erase his own order intended to protect the ride-hailing company’s drivers.

And indeed Judge Chen rejected the proposed settlement in August. Uber drivers contended in the lawsuit they should be deemed employees and reimbursed for expenses such as gasoline and vehicle maintenance. Those expenses are now borne by the drivers. The proposed settlement would have kept drivers classified as independent contractors. Several drivers who were part of the class filed objections with the court, particularly because the proposed amount was well below the total potential damages in the case of roughly $850 million.

In an order handed down last August in San Francisco, US District Judge Edward Chen said that, despite changes to its policies that Uber was ready to enact, the proposed settlement on the whole “is not fair, adequate, and reasonable.” Had it been approved, the agreement would have impacted about 385,000 Uber drivers California and Massachusetts involved in the class-action suit.

The U.S. 9th Circuit Court of Appeals in San Francisco said with Wednesday in the published case of Mohamed v Uber Technologies that drivers who signed up with Uber in 2013 and 2014 must go to arbitration, not the courts, to resolve disputes with the company. Judge Chen previously ruled in the companion classification case that the arbitration agreements were unenforceable and unconscionable. But the appeals panel said Chen lacked the authority to make that call because the contracts require an arbiter to decide “all matters.”

The ruling on Wednesday applies directly to two drivers’ challenge of Uber’s background-check practices in a proposed class-action lawsuit. But it could have an effect on dozens of lawsuits across the nation. Uber drivers have used the threat of a class-action lawsuit to extract concessions from the San Francisco company. Having to go to arbitration largely takes the specter of mass litigation off the table.

Now, Uber could drop the settlement talks altogether in the classification case because the appeals court could go on to unwind Chen’s certification of a class of drivers, forcing most of the drivers to individual arbitration. One-one-one fights typically result in smaller benefits for complainants. The class currently includes some 240,000 drivers from California and Massachusetts. If the arbitration agreements are enforced, the class could be reduced to 8,000 people – those who had rejected the arbitration agreements when they joined Uber’s driver roster.

DWC Posts Adjustments to OMFS

The Division of Workers’ Compensation (DWC) has posted an order adjusting the Official Medical Fee Schedule (OMFS) to conform to changes in the Medicare payment system as required by Labor Code section 5307.1.

The Physician and Non-Physician Practitioner Fee Schedule update Order adopts the following Medicare changes:

– CMS Medicare National Physician Fee Schedule Relative Value File RVU16D October 1, 2016 quarterly update
– National Correct Coding Initiative Physician/Practitioner Services CCI Edits October 1, 2016 quarterly update
– National Correct Coding Initiative Medically Unlikely Edits October 1, 2016 quarterly update

The order adopting the OMFS adjustments is effective for services rendered on or after October 1, 2016.