Tag: 2016 News

The Division of Workers’ Compensation has posted the 2015 ethics advisory committee’s annual report on its website. The ethics advisory committee is a state committee independent from the DWC that is charged with reviewing and monitoring complaints of misconduct filed against workers’ compensation administrative law judges.

The EAC is composed of nine members, each appointed by the administrative director of the DWC for a term of four years. The composition of the EAC reflects the constituencies within the California workers’ compensation community. The EAC meets four times a year at the DWC headquarters. Although EAC meetings are open to the public, the Committee meets in executive session when it engages in the review and discussion of actual complaints, and that portion of the proceedings is closed to the public.The ethics advisory committee is required to make a public report each year summarizing activities in the previous calendar year. Anyone may file a complaint with the EAC. Complaints may be submitted anonymously, but all complaints must be presented in writing.

The 2015 annual report may be viewed or downloaded at the DWC website. In this report, the EAC considered a total of 38 of the 44 new complaints it received in calendar year 2015, in addition to 6 complaints pending from 2014. The complaints set forth a wide variety of grievances. A large proportion of the complaints alleged legal error not involving judicial misconduct or expressed dissatisfaction with a judge’s decision. The majority of complaints were filed by unrepresented employees.

The EAC recommended that “further action be taken” in three lien cases. (cases 9, 10 and 26 in the report) All three complained about a lack of courtesy, dignity, and rudeness on the part of the WCJ, and threatening and intimidating behavior. Cases 9, and 10 were the same case reported by two people. The dispute involved allegations that the WCJ called a doctor’s office and ordered that the doctor appear at a hearing that day. The doctor responded that he was observing a three day religious holiday and could not appear before that was over. The WCJ allegedly responded “I don’t believe you.” The second complaint was filed by a witness at that hearing. “The complainant alleged that the judge appeared smug, negative, and downright abusive to all the parties.” In both cases the EAC “recommended to the CJ that further action be taken and recommended that this matter be referred to personnel.”

In case 26, he complainant, a lien claimant, alleged that the judge displayed rude, abusive, undignified, ill-mannered, intemperate, disrespectful, and discourteous conduct by yelling at the complainant and imposing sanctions for not producing the lien claimant representative at the hearing, even though no subpoena had been served. The complainant filed a Petition for Reconsideration. The Petition was granted for further review. The complainant also attached three panel decisions in different cases that found that the judge engaged in abuse of discretion. Following its review of the investigation, the committee recommended further action and referred this matter to personnel.

Forty-seven-year-old William Alan Huffman pled guilty to felony insurance fraud and tax evasion charges arising from his ownership of Capitol City Construction Company.

For more than three years, Huffman falsely reported to his workers’ compensation insurance carriers that he had either no employees or very few, when in fact he often had several employees. This allowed him to avoid having to pay the insurance premiums he actually owed.

During the same period, he paid his employees in cash or otherwise failed to collect and turn over the required unemployment insurance deductions to the California Employment Development Department (EDD). From February 1, 2012 through June 30, 2015, Huffman underreported his payroll by an estimated $1,092,842, defrauding his insurance companies, Zurich Insurance and Wesco Insurance, of a combined $187,757 in premiums and $115,922 owed to EDD.

Under the terms of the plea agreement, Huffman will be ordered to serve 1 year in county jail, be on formal probation for 5 years, and pay restitution in the amount of $303,680. Sentencing is set for March 24, 2016, in Department 63 before the Honorable Jaime Román.

Rebecca Gage sustained industrial injury to her lumbar spine while employed by the County of Sacramento as a deputy sheriff in 2011. A stipulated award as approved by the WCJ in 2014.

On March 6, 2015, Gage applied to the Sacramento County Employees’ Retirement System (SCERS) for a service-connected disability retirement, and the application was acknowledged by SCERS on June 3, 2015. On July 2, 2015, the Count y initiated payment of disability retirement advances to applicant pursuant to section 4850.4.

Applicant claimed that the County’s delay in initiating disability retirement advances entitles her to recover a penalty pursuant to section 5814. The WCJ found that disability retirement advances pursuant to section 4850.4 are “compensation” as described in section 3207, and for that reason an unreasonable delay in making such advances is subject to a penalty under section 5814. The WCAB reversed in the split panel decision of Gage v County of Sacramento.

Section 4850.4 provides for advanced payment of disability retirement benefits to certain public safety employees who are covered by the Public Employees’ Retirement System (PERS), the County Employees Retirement Law of 1937, or the Los Angeles City Employees’ Retirement System. The provision of that special benefit for those public safety employees is similar to the special payments provided for public safety employees under section 4850.

Earlier panels of the Appeals Board found that delayed payment of the special benefits under section 4850 is not subject to a penalty under section 5814. (Citations Omitted) Moreover, the payment of disability retirement advances is not the payment of workers’ compensation benefits. In this way, section 4850.4 differs from the statutory provision for payment of industrial disability leave (IDL) under Government Code section l 9870(a) to certain state workers as “temporary disability” for an industrial injury. This distinction was recognized by the Supreme Court when it held in State of California v. Workers’ Comp. Appeals Bd. (Ellison) (1996) 44 Cal.App.4th 128 [61Cal.Comp.Cases 325] (Ellison) that a section 5814 penalty could be imposed for unreasonable delay in payment of IDL pursuant to Government Code section l 9870(a) because IDL is a form of temporary disability indemnity.

Turning to the facts in this case, the panel majority held that there is no regular workers’ compensation benefit equivalent to the disability retirement advances provided for certain public employees by section 4850.4. To the contrary, entitlement to receive disability retirement benefits is governed by a separate statutory system apart from workers’ compensation, and the retirement system is administered by an independent retirement board outside of the workers’ compensation system.

Commissioner Marguerite Sweeney wrote a dissenting opinion, and would have sustained the penalty. She said section 3207 plainly defines “compensation” as including “every benefit or payment conferred by this [Division 4] upon an injured employee.” Thus, the County is obligated to pay applicant the “compensation” due under section 4850.4 as conferred by Division 4 of the Labor Code, and the WCAB has jurisdiction to enforce that obligation.

The New York Times reports that after three years of planning, an immigrant rights group is set to start a smartphone app for day laborers, a new digital tool with many uses: Workers will be able to rate employers (think Yelp or Uber), log their hours and wages, take pictures of job sites and help identify, down to the color and make of a car, employers with a history of withholding wages. They will also be able to send instant alerts to other workers. The advocacy group will safeguard the information and work with lawyers to negotiate payment. Not mentioned in the story is the opportunity for workers’ compensation carriers to recover lost premium.

“It will change my life and my colleagues’ lives a good deal,” Omar Trinidad, a Mexican immigrant, said in Spanish through an interpreter. Mr. Trinidad is the lead organizer who helped develop the app. “Presently, there is a lot of wage theft,” he said. “There has always been wage theft, and the truth is we’re going to put a stop to that.” Mr. Trinidad, suggested the name for the app – Jornalero, which means day laborer in Spanish.

The app had its soft launch on Tuesday night, with beta testing to be held later this month at the Jackson Heights section of New York City day laborer stop that stretches for a mile along 69th Street. Day laborer centers in Brooklyn and on Staten Island will also be testing the product, which is available in Spanish and English.

The plan is for the app to spread to all 70 of the city’s day laborer stops, and then to workers in all kinds of jobs across the country. The Jornalero app began as a project of New Immigrant Community Empowerment, known as NICE, in Jackson Heights, and then expanded in scope when the group’s parent organization, the National Day Laborer Organizing Network, based in Los Angeles, secured more funding.

“It’s going to be a gift that the day laborers are going to give to the working class in America,” said Pablo Alvarado, the executive director of the national day laborer group.

The project has been a collaboration of workers, artists, organizers, lawyers, unions and academics. Sol Aramendi, a photographer based in Queens and an activist with NICE, first joined Hana Georg, a local electrician, to propose the idea to construction laborers, who were immediately enthusiastic. The Worker Institute, a program within the School of Industrial and Labor Relations at Cornell University, ran forums for workers across New York City to see what they most needed in an app. The workers wanted an easy way to track payments, record details about unsafe work sites and share pictures to identify employers. Most of all, they wanted to do it all anonymously.

Alyx Baldwin, a designer who had established a mesh network that kept the Red Hook section of Brooklyn connected to the Internet after Hurricane Sandy, began the design work with those priorities in mind.

A San Francisco group, Rebel Idealist, took over the design at the beginning of this year, after the International Union of Painters and Allied Trades pledged $25,000 to support the app. Mr. Alvarado said his organization also received $15,000 from the Ford Foundation.

The app has workers record their hours and wages, which are then saved in a profile. That profile, which lists a phone number but no name, is linked to the organization’s database. If a worker reports not being paid or being underpaid, NICE will contact the employer. If necessary, lawyers from the Urban Justice Center, who conduct monthly clinics at NICE, will help recover lost wages. It is not hard to imagine how the app can help worker’s compensation carriers recover lost premium, and for authorities to discover and prosecute employers who commit workers’ compensation premium fraud.

The director of head and neck surgery at the University of Pittsburgh Medical Center (UPMC), has used a snake-like robot to perform more than a half dozen throat surgeries over the past month. Simply put, the robot is more accurate than the surgeon could hope to be. The Flex Robotic System is so easy to use, he said even medical students can learn to use it with proficiency within three tries. The surgical robot he’s been using has sub-millimeter accuracy; it can “snake” its way to any place in the body and it causes less damage to soft tissue.

According to the article in Computer World, as far back as 2008, studies showed that patients undergoing minimally invasive heart-bypass surgery using a robot had a shorter hospital stay, faster recovery, fewer complications and a better chance that the bypassed vessels would remain open.

Last year, a Florida hospital proved robots could enable surgeons to remotely operate on patients. The Florida Hospital Nicholson Center in Celebration successfully tested lagtime created by the Internet for a simulated robotic surgery in Ft. Worth, Texas, more than 1,200 miles away from the surgeon at the virtual controls. Being able to perform remote surgeries would allow specialists to attend to any patient, anywhere in the world. The Nicholson Center’s simulator mimics procedures performed by a da Vinci robotic surgical system, the most common robotic equipment in use today; it’s involved in ;hundreds of thousands of surgeries every year worldwide.

The Food and Drug Administration approved the da Vinci Surgical System from Intuitive Surgical in Sunnyvale, Calif. in 2000. Since that time, the da Vinci has been adopted by hospitals in the United States and Europe to treat a range of conditions. The system’s console gives the surgeon a high-definition, magnified 3-D view of the surgical site.

Robots can also be used to deliver high doses of radiation with sub-millimeter accuracy anywhere in the body. The Accuray CyberKnife Robotic Radiosurgery System is one such system developed in 1990 by a professor of neurosurgery and radiation oncology at Stanford University. Approved by the FDA in 2001, the CyberKnife system can treat tumors anywhere in the body and has been used on 40,000 patients worldwide, according to the company.

While still needing skilled medical personnel to oversee them, surgical robots are increasingly showing up tableside in operating rooms, and they may some day allow people with only basic medical knowledge to perform operations outside of a hospital setting. By 2020, surgical robotics sales are expected to almost double to $6.4 billion, according to a recent report by Allied Market Research. That would represent a 10.2% annual growth rate between 2014 and 2020. In 2014, the gynecological application segment accounted for 28% of the surgical robotic systems market share; it is expected to maintain its dominance throughout the next four years.

The increasing need for automation in healthcare and growing demand for minimally invasive surgeries are driving the surgical robotic systems and procedures market, according to Allied. In addition, a rise in cases of colorectal cancer, neurological disorders and gynecological diseases, among others, would boost the adoption of robotic surgical systems well adapted for minimally invasive procedures. “Surgical robotic systems offer less post-surgical complications and reduce labor cost,” the study said. “Due to this, large-scale hospitals based in developed and developing economies are now favoring automated surgical/hospital services, which ultimately drives the market growth.”