Tag: 2013 News

Only one week remains before the Floyd, Skeren and Kelly LLP 3rd Annual Employment Law Conference, which will feature keynote speaker Phyllis W. Cheng, Director of the California Department of Fair Employment and Housing (DFEH). The conference will be held on May 9, 2013 at the Disneyland Hotel.

This is an all-day event, designed for employers, supervisors, managers, claims adjusters, risk managers, and any other professionals associated with human resources and employment law. The conference will focus on the latest employment law cases, most recent legislation, and provide helpful practical guidance related to numerous workplace topics, including: the new California disability regulations (which impact an employer’s policies and procedures on reasonable accommodation, the interactive process and medical certifications); an overview of important OSHA workplace requirements; a review of 10 critical steps an employer can take to stay out of court and avoid costly and time consuming employment related lawsuits; a workers’ compensation case law and legislative update; helpful guidance on preventing workers’ compensation fraud; a review of the new comprehensive pregnancy disability regulations now in effect; and, an update on the evolving role of social media in the workplace.

Cost of attendance is $120.00

Discounted room rates at the Disneyland Hotel and discounted Disneyland tickets are available for attendees and their guests. Upon registration this information will be provided to you.

Please visit www.fskhrtraining.com for more details and online registration. You can also contact Christina Bardelli by phone (818) 854-3239 or, email christina.bardelli@fsklaw.com.

Workers’ Memorial Day takes place annually around the world, an international day of remembrance and action for workers killed, injured or made ill on the job. The observance is held each year on April 28, the day Congress passed the Occupational Safety and Health Act in 1970. Workers’ Memorial Day is an opportunity to highlight the preventable nature of most workplace accidents and to promote campaigns in the fight for improvements in workplace safety and health.

“While we pause this day to remember those who died simply by trying to earn a living, we must honor their memories by continuing to make workplace safety a priority,” said DIR Director Christine Baker. “We will focus our efforts and resources on identifying and targeting the most serious safety violators, and we will continue working closely with model employers who are making safety a part of their workplace culture.”

California has a long history of improving workplace safety and continues to lead the nation in protective safety standards. Cal/OSHA was established by the Occupational Safety and Health Act of 1973 to enforce effective standards, assist and encourage employers to maintain safe and healthful working conditions, and to provide for enforcement, research, information, education and training in the field of occupational safety and health.

Cal/OSHA last year launched a statewide Confined Space Initiative after seven workers died in 2011 due to confined space hazards in various industries. This ongoing initiative includes outreach and enforcement to educate employers and workers about these hazards. Cal/OSHA issued a Confined Space Hazard Alert to help employers and employees identify confined space hazards and take immediate steps to train and protect workers and have emergency procedures on site. Cal/OSHA has also posted extensive resources on confined space hazard materials online.

Cal/OSHA was the first in the nation to adopt an Injury and Illness Prevention Program (IIPP) standard in 1991, to ensure that all employers have effective safety and health programs tailored to their specific workplaces.

Cal/OSHA was also the first in the nation to enact a standard and comprehensive program to prevent workers from suffering heat illness and death working in high heat outdoors. Cal/OSHA’s program has been effective in preventing many heat-related illnesses and deaths to farmworkers, construction workers, landscapers, and others through enforcement, education and outreach, media and partnerships with business and labor organizations to educate employers and workers about the risks of heat illness and simple steps necessary to prevent illness and death. Cal/OSHA has posted extensive resources on heat illness prevention on its website.

A federal jury in Los Angeles found an Anaheim physician and two others guilty last week for their roles in a $1.5-million Medicare fraud scheme involving power wheelchairs.

According to the story in Reuters Health, federal prosecutors said at trial that Godwin Onyeabor, 49, an officer at Fendih Medical Supply Inc. in San Bernardino, paid kickbacks to physician Sri J. Wijegunaratne, 58, and another healthcare professional, Heidi Morishita, 48, for fraudulent prescriptions for durable medical equipment.

Officials said that as a result of this scheme, which ran from 2007 to 2012, those prescriptions were used to bill Medicare $1.5 million for false and fraudulent claims. Medicare paid nearly $1 million on these claims.

Several Medicare patients testified at trial that they were lured to medical clinics with the promise of free items such as vitamins and juice, only to get power wheelchairs they didn’t need.

Onyeabor, Wijegunaratne and Morishita face up to 10 years in prison and a $250,000 fine for each count they were found guilty on, prosecutors said.

The case was investigated by the FBI and the Los Angeles regional office for the U.S. Department of Health and Human Services’ inspector general.

The Obama administration has tried to crack down on fraud and abuse in Medicare in hopes of recovering some of the estimated $60 billion lost annually in the federal program. The government’s enforcement efforts have taken on added importance at a time of rising entitlement spending and mounting federal debt.

Maria Elana Mendez settled her claims against Le Chef Bakery and Pacific Compensation Insurance by a compromise and release in 2010.

On April 30, 2012, Dr. Fatolomi filed a medical-legal lien claim and concurrently filed a DOR requesting a lien conference. A lien conference was held on June 14, 2012 and continued to July 20, 2012. (before SB 863 became law) The parties filed a pretrial conference statement, and the case was scheduled for a December 12, 2012 trial, which was continued to January 3, 2013.

Dr. Fatolomi did not pay a lien activation fee prior to the January 3, 2013 lien trial. The WCJ concluded that, under WCAB Rule 10582, Dr. Fatolomi’s filing of a DOR “activated” his lien and that the intent of section 4903.06 is that, beginning January 1, 2013, a lien claimant must pay an activation fee whenever it uses the WCAB to collect on its lien, regardless of whether the first appearance in 2013 is at a lien conference or lien trial. Therefore, the WCJ dismissed Dr. Fatolomi’s lien with prejudice for failure to pay the fee.

Dr. Fatolomi filed a petition for reconsideration contending that Labor Code section 4903.06 does not require payment of a lien activation fee prior to a lien trial and, therefore, his lien should not have been dismissed. The WCAB in a significant panel decision agreed and reversed the dismissal in the case of Maria Elana Mendez vs Le Chef Bakery and Pacific Compensation Insurance.

Payment of a lien activation fee was not required with a DOR filed prior to January 1, 2013 or at a lien conference held prior to January 1, 2013. This is because section 4903.06 was not effective until that date. Therefore, Dr. Fatolomi was not required to pay a lien activation fee based on his April 30, 2012 DOR or based on the June 14 or July 20, 2012 lien conferences. However, because section 4903.06 applies to all cases that were not final as of its January 1, 2013 effective date (Stats. 2012, ch. 363, § 84), the WCAB emphasized that if Dr. Fatolomi’s pre-2013 DOR had triggered a lien conference (rather than a lien trial) in 2013, he would have been required to pay the activation fee prior to the lien conference. Under the WCAB Rules, there is a clear and unambiguous distinction between a “lien conference” and a “lien trial.”

The panel concluded that a lien claimant is not required to pay a lien activation fee prior to a 2013 lien trial where: (1) the declaration of readiness (DOR) is filed prior to January 1, 2013; (2) the lien conference takes place prior to January 1, 2013; and (3) the lien trial takes place in 2013, without any intervening 2013 lien conference.

However the panel observed that section 4903.06(a)(5) provides: any lien filed pursuant to subdivision (b) of Section 4903 prior to January 1, 2013, and any cost that was filed as a lien prior to January 1, 2013, for which the filing fee or lien activation fee has not been paid by January 1, 2014, is dismissed by operation of law. Therefore, if a lien subject to the lien activation fee is not resolved or withdrawn by January 1, 2014, the lien activation fee must be paid by that date, or the lien will be dismissed by operation of law.

The Los Angeles Times reports that a full-court press by professional sports leagues to limit the ability of out-of-state players to file for workers’ compensation benefits in California scored big in a crucial first vote by state lawmakers.

A bill, backed by the owners of 16 California teams, including basketball’s Los Angeles Lakers, baseball’s Dodgers, hockey’s Kings and soccer’s Galaxy, passed out of the Assembly Insurance Committee with a unanimous 11-0 tally over objections from players and labor unions. The measure now heads to the full Assembly for debate and a vote. “Why should California be the workers’ compensation forum for every professional athlete in America?” asked committee Chairman Henry T. Perea (D-Fresno), the author of the bill, AB 1309.

At issue is team owners’ contentions that out-of-state athletes, who may have played only a few games in California, are taking advantage of a peculiarity in the Golden State’s workers’ compensation law. The alleged loophole allows often long-retired pros to get benefits for so-called cumulative trauma injuries acquired over years of pounding on football and soccer fields, basketball courts, baseball diamonds and hockey rinks. California has become a magnet for such claims that are not linked to a specific injury, such as a torn tendon or broken bone, caused by a specific incident during a game or practice, bill supporters said. What’s more, many of the claims are filed years after a player retires because of California workers’ compensation judges’ liberal interpretation of the statute of limitations.

“This is about closing a loophole that out-of-state players are using to cash in on generous benefits that California provides,” testified Andrew Govenar, a lobbyist for the National Football League.

Claims filed in California workers’ compensation courts by athletes from teams outside California have grown exponentially since the mid-2000s and are clogging up some local dockets and putting pressure on insurance companies to raise rates on all types of employers, Govenar argued. A study commissioned by the professional sports leagues estimated that the out-of-state players’ claims could cause a 1.3% rise in California employers’ workers’ compensation premiums across the board, Govenar said. Although the bill targets one – albeit glamorous – class of workers, some labor leaders fear it could set a dangerous precedent. The worry is that it could be extended to truck drivers, salespeople and others whose jobs take them to California and other states.

“There is a slippery slope of who is going to be next,” said Angie Wei, legislative director for the California Labor Federation. Players for pro sports said their claims have no effect on California taxpayers since claims are paid by team owners or their insurance companies. They noted that all sports except baseball have caps on athletes’ salaries that include the pro-rata cost of an individual’s workers’ compensation coverage.

Chad Brown, who spent 15 seasons with the Pittsburgh Steelers, New England Patriots and Seattle Seahawks before retiring from the NFL in 2007, stressed that he paid more than $100,000 in state income taxes for the games he played in California during his career. Doctors have diagnosed him with a 74% disability because of his cumulative trauma injuries, said Brown, who currently has a workers’ comp claim pending. “All I’m asking is for this committee to consider allowing professional sports workers a forum to be heard for workers’ compensation claims,” he said.

But California should not be penalized because it offers richer workers’ compensation benefits than other states,” Assemblywoman Kristin Olsen (R-Modesto) said. “I don’t think California should be the catch-all for deficiencies in other states,” she said. “That’s neither wise nor affordable.”