Tag: 2018 News

Elliott Galindo worked for the City of Los Angeles as cement finisher in the City’s Department of Public Works, Bureau of Street Services.

In 2004, Galindo suffered a work-related back injury and did not return to full duty as a cement finisher until 2006. In 2008 he suffered another back injury and was off work for almost a year while his worker’s compensation claim was pending.

In 2009 he was given permanent work restrictions including “Limited to light duty only. He cannot perform any type of strenuous work. He should avoid lifting greater than 10 lbs, avoid repetitive bending, . . . avoid repetitive twisting, and avoid unusual body positioning for his spinal condition.”

Galindo confirmed that the medical work restrictions were accurately stated. He believed he could nonetheless perform his job as a cement finisher if he was given a “lead man” role, “less hands on.” He declined to be considered for another job classification, declined transfer to a lower-wage position, and said he was not aware of any equipment or devices that could assist him in completing his regular job duties.

Numerous interactive process meetings were held by the City. At the first, he asked to be returned to his position as a cement finisher. The City asked him to complete a City employment application identifying all of his work qualifications so that he could be considered for other modified duties or classifications. Additional meetings took place with similar results.

By 2011 a disability retirement was approved by LACERS. Subsequently there were additional interactive process meetings after he was retired.  Essentially Mr. Galindo asked to return to work as a cement finisher and declined to consider other work. Ultimately he filed a claim of discrimination with the DFEH, obtained a right to sue letter and filed a civil complaint.

While his civil action was pending, in 2015 LACERS asked for three medical examinations to re-evaluate his disability retirement. All three doctors reported that he could return to work as a cement finisher without restrictions. By May, 2015 he returned to work as a cement finisher without restrictions.

The City moved for summary judgment in September 2015 which was granted and the case dismissed. The court of appeal affirmed the dismissal in the unpublished case of Galindo v City of Los Angeles.

The City presented undisputed evidence that it was at all times constrained by work restrictions issued by the Workers’ Compensation Division. In order to prevail on a claim of disability discrimination, an employee must show that the employer took the adverse employment action with a discriminatory animus. The employee cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.

The Department of Justice and U.S. Drug Enforcement Administration have proposed a reduction for controlled substances that may be manufactured in the U.S. next year. President Trump’s “Safe Prescribing Plan” that seeks to “cut nationwide opioid prescription fills by one-third within three years.” The new proposal decreases manufacturing quotas for the six most frequently misused opioids for 2019 by an average ten percent as compared to the 2018 amount.

The Notice of Proposed Rulemaking marks the third straight year of proposed reductions, which help reduce the amount of drugs potentially diverted for trafficking and used to facilitate addiction.

On July 11, 2018, the Justice Department announced that DEA was issuing a final rule amending its regulations to improve the agency’s ability to consider the likelihood of whether a drug can be diverted for abuse when it sets annual opioid production limits. The final rule also promotes greater involvement from state attorneys general, and today’s proposed reduction will be sent to those offices.

In setting the aggregate production quota, DEA considers data from many sources, including estimates of the legitimate medical need from the Food and Drug Administration; estimates of retail consumption based on prescriptions dispensed; manufacturers’ disposition history and forecasts; data from DEA’s own internal system for tracking controlled substance transactions; and past quota histories.

The DEA has proposed to reduce more commonly prescribed schedule II opioids, including oxycodone, hydrocodone, oxymorphone, hydromorphone, morphine, and fentanyl.

Ultimately, revised limits will encourage vigilance on the part of opioid manufacturers, help DEA respond to the changing drug threat environment, and protect the American people from potential addictive drugs while ensuring that the country has enough opioids for legitimate medical, scientific, research, and industrial needs.

Once the aggregate quota is set, DEA allocates individual manufacturing and procurement quotas to those manufacturers that apply for them. DEA may revise a company’s quota at any time during the year if change is warranted due to increased or decreased sales or exports, new manufacturers entering the market, new product development, or product recalls.

When Congress passed the Controlled Substances Act, the quota system was intended to reduce or eliminate diversion from “legitimate channels of trade” by controlling the quantities of the basic ingredients needed for the manufacture of controlled substances.

The Proposed Aggregate Production Quotas for schedule I and II controlled substances published in the Federal Register reflects the total amount of controlled substances necessary to meet the country’s medical, scientific, research, industrial, and export needs for the year and for the establishment and maintenance of reserve stocks. DEA establishes an APQ for more than 250 schedule I and II controlled substances annually.

In 2016, the Centers for Disease Control and Prevention issued guidelines to practitioners recommending a reduction in the prescribing of opioid medications for chronic pain. DEA and its federal partners have increased efforts in the last several years to educate practitioners, pharmacists, manufacturers, distributors, and the public about the dangers associated with the misuse of opioid medications and the importance of proper prescribing.

Former chiropractor Peyman Heidary allegedly owned and oversaw a network of medical clinics to generate fraudulent billings to workers’ compensation and insurance carriers.

As a non-attorney, he also allegedly controlled the day-to-day operations of various law firms, including California Injury Lawyers.He allegedly controlled or directed hiring and firing, legal decision making, and income flow to and from the law firm. Codefendants Cary Abramowitz, a lawyer, and Ana Solis allegedly assisted Heidary in these operations.

Heidary also allegedly formed and controlled several health clinics in Southern California. Each was staffed by front and back room support staff for scheduling and basic medical services .

Included were chiropractors operating as primary treating physicians, allegedly providing blanket, cookie-cutter services to each patient at Heidary’s direction and making as many medical specialist referrals as possible. Despite their qualifications, they also wrote medical legal reports using Heidary’s templates, the most expensive report in workers’ compensation.

Medical doctors, or specialists, allegedly provided blanket treatment and medlegals on Heidary’s orders. Billings were made in each provider’s name, and payments were made to their accounts. However, Heidary required fee-splitting and he was the only one allowed to withdraw funds. Heidary also had the doctors sell their accounts-receivables (AR) to him, which he then sold to third parties.

Under the alleged fraud scheme, injured workers appeared at the law firm, which would fill out boilerplate paperwork and, on Heidary’s order, direct the workers to one of his clinics to begin treatment. At the clinic, the workers underwent treatments, regardless of need, such as massage, chiropractic, acupuncture, psychiatric and other services. After the maximum number of visits, they were discharged regardless of medical status.

A Riverside County grand jury returned an indictment against Heidary and his codefendants Cary Abramowitz, Ana Solis, and Gladys Ross. The criminal defendants filed a demurrer, and later a motion to dismiss this indictment, challenging in part whether they had received notice of the charges and whether the indictment improperly aggregated multiple acts into single counts. The trial court denied both requests. Heidary appealed.

The Court of Appeal summarily denied the petition on August 8, 2017. On October 11, 2017, the California Supreme Court intervened directing the Court of Appeal to address these issues. After this ordered review, the trial court ruling was affirmed by the Court of Appeal in the published case of Heidary v Superior Court.

Petitioner argues that the insurance fraud counts do not state specifics as to any single act, but aggregate claims of fraudulent acts by individual insurer, one insurer per count.

The Court of Appeal reviewed the indictment, the grand jury transcript, and exhibits submitted to the grand jury. The People took the testimony of the insurers’ fraud managers, or their representatives (such as in-house data analysts or third-party managers who collected the data for the responses), before the grand jury to walk through the spreadsheets and explain the data within them.

The reviewed materials meet the simplified California pleading rules and the due process requirements.

The Court concluded by noting “To the extent that petitioner continues to claim that the indictment, along with the grand jury transcript and exhibits, does not provide him notice of the charges against him, the court can only conclude that it is because petitioner is turning a blind eye while advancing his argument. Between the indictment, the contents of the thorough and detailed grand jury transcript, and the exhibits presented to the grand jury and contained in the record (including the record here), due process has been satisfied and petitioner has been given adequate notice of the charges against him. ”

Although there has been an overall decline in workers’ compensation claims, the frequency of claims for motor vehicle accidents (MVA) has increased in recent years.

According to the National Council on Compensation Insurance (NCCI) in a new report, these accidents can be very severe and are responsible for a significant portion of fatal workers’ compensation claims.

“While workers compensation claims have been declining, motor vehicle accidents have been on the rise over the last five years,” said Jim Davis, author of the paper and NCCI director and actuary. “These often involve very serious injuries that can take their toll on injured workers and their families.” An MVA claim is 12 times more likely to result in a fatality than a non-MVA claim.

NCCI actuaries found that from 2011 to 2016, the frequency of all claims declined by 17.6 percent, while the frequency of MVA claims increased by five percent. Additionally, 41 percent of fatal workers’ compensation claims were the result of a motor vehicle.

As expected, certain classifications, which are predominantly based on the use of motor vehicles, such as truckers, taxi drivers, and salespersons, generate the majority of MVA claims.

According to the workers’ compensation rating organization, motor vehicle accident claims cost 80 percent to 100 percent more than the average claim because they involve severe injuries. These claims also tend to represent a higher share of the costliest claims. Over a five-year period, motor vehicle claims accounted for 28 percent of workers’ compensation claims above $500,000, versus just five percent of all claims.

While numerous factors may explain the rise in accidents, the NCCI report notes that it is “striking how the increasing popularity and use of smartphones coincides with this growing trend” of motor vehicle accidents. By the end of 2010, approximately 27 percent of all cell phones were smartphones but by the end of 2016, that figure had tripled to 81 percent, the report notes.

According to a publication by the National Safety Council, a minimum of 27% of crashes involve drivers talking and texting on cell phones. However, the report also states that “there is strong evidence to support that underreporting of driver cell phone use in crashes is resulting in a substantial underestimation of the magnitude of the public safety threat.”

The increase in motor vehicle accidents is not limited to workers’ compensation. NCCI found a similar pattern in the general population, with accidents generally increasing over the same time period, along with an increase in the number of traffic accident fatalities.

Anthony Dennis sustained an industrial injury to his right wrist on October 29, 2013 while working as an inmate laborer for the California Department of Corrections and Rehabilitation. His claim settled via Stipulation and Award for 31 % permanent disability on September 11, 2017.

Prior to the settlement, on May 15, 2017 the Department of Corrections sent a Notice of Offer of Modified Work stating that applicant had voluntarily terminated his employment since he had been released from prison after .the injury occurred. Dennis disputed the offer of work and requested a dispute resolution before the Administrative Director on September 19, 2017.

The parties never received a response from the AD. Thus Dennis filed a DOR to address the matter on February 5, 2018 as well as a “Petition for Grant of Supplemental Job Displacement Benefit.”

Defendant claimed at trial that if applicant’s DOR/Appeal of the Administrative Directors presumed denial was not timely. The WCJ found that it was not and thus, the ADs determination ( denial) was final, and denied the Petition for the SJDB Benefit.

Dennis filed for Reconsideration of this finding and also arguing that he is eligible to the voucher. The WCAB granted the Petition and ordered that he be provided with a SJDB Voucher in the case of Dennis v. California Department of Corrections and Rehabilitation.

The parties never received a finding from the Administrative Director; therefore the request was deemed denied on December 8, 2017 pursuant to 17 8 CCR 10133.54(±). An appeal of the denial was to be filed by December 28, 2017 per 8 CCR 10133.54(g).

Applicant filed his Petition for Grant of Supplemental Job Displacement Benefit on February 5, 2018, well after the time allotted per the regulations. 8 CCR 10133.54(g) states “Either party may appeal the determination of the administrative director by filing a written petition together with a declaration of readiness to proceed pursuant to section 10250 within twenty days after a request is deemed denied” .

The WCJ found that applicant is barred from SJDB because applicant failed to timely appeal the Administrative Director’s presumed denial of his request.

However, section 5300 statutorily vests the Appeals Board with the exclusive jurisdiction to adjudicate claims regarding the “recovery of compensation, or concerning any right or liability arising out of or incidental thereto” of injuries that “arise out of and in the course” of employment This exclusive jurisdiction extends to inmates who sustained injury arising out of and in the course of assigned employment. (§ 3370.)

Furthermore, section 4658.7(h) does nqt abrogate the Appeals Board ability to adjudicate disputes that arise under this subdivision. Section 4658.7(h) limits the Administrative Director to adopting regulations “for the administration of this section” and does not extent the Administrative Director’s authority to adjudicate SJDB disputes.

Thus, irrespective of Rule 10133.54, the Appeals Board maintains exclusive jurisdiction, to adjudicate the issue of whether applicant is entitled to the benefits under the SJDB program.

While defendant timely sent applicant a Notice offering regular, modified, or alternative work, such offer was not a bona fide job offer because applicant was released from prison and could not return to prison for employment.

This decision may have further implications in terms of other dispute resolution functions of the AD, such as IMR.