Tag: 2018 News

Diane Minish sustained serious personal injuries after she fell off a forklift on premises owned by Hanuman Fellowship. Minish initially reported that her injuries occurred while she was working as a volunteer, doing construction work for the Fellowship. Both Minish and the Fellowship reported the injury to the Fellowship’s workers’ compensation carrier and Minish received more than $270,000 in workers’ compensation benefits.

Minish also filed a civil action seeking damages for personal injuries. Minish alleged that she volunteered to assist at the Center and that the defendants acted negligently in requesting her to stand on a raised forklift while it was moving. The Fellowship answered and asserted that workers’ compensation was Minish’s exclusive remedy.

Minish argued the exclusive remedy rule did not apply because the Fellowship failed to comply with the requirements of Labor Code section 3363.6 for extending employment status to its volunteers. She also argued that her injuries did not arise out of and in the course of her employment because she was visiting a friend and was not volunteering at the time of the accident.

The trial court granted the Fellowship summary judgment on its exclusive remedy defense, reasoning that Minish was judicially estopped from denying she was subject to the workers’ compensation remedy.

The court of appeal reversed the summary judgment in a prior appeal in Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 443 (Minish I). The court held judicial estoppel did not apply because the Fellowship had not shown that the WCAB made any findings in favor of Minish. The court rejected the Fellowship’s arguments based on equitable estoppel, since the Fellowship had not pleaded equitable estoppel as a defense and there were triable issues concerning the elements of the defense.

On remand, the trial court construed Labor Code section 3363.6 and found the Fellowship had complied with its requirements. The court found that based on her prior representations that she was injured while doing volunteer construction work and her acceptance of workers’ compensation benefits, Minish was equitably estopped from asserting in the civil action that her injuries did not arise out of and in the course of her employment. In light of its findings, the trial court found it unnecessary to adjudicate the question of Minish’s volunteer status.

On this her second appeal, Minish challenges the court’s ruling on the equitable estoppel defense, arguing that the evidence was insufficient to satisfy three elements of the defense.

The court of appeal again reversed the trial court in the unpublished case of Minish v. Hanuman Fellowship.

Equitable estoppel provides that Minish may not deny the existence of a state of facts (her injuries arose out of and in the course of her employment) if she intentionally led the Fellowship to believe those facts to be true and to rely upon such belief to its detriment.

For estoppel to apply, the trial court was required to find that Minish was apprised of the facts (that she knew her injuries did not arise out of and in the course of her employment) and that the Fellowship was ignorant of the true state of those facts. Since the knowledge element is missing, there can be no estoppel.

A new study published in the Journal of the American Medical Association and summarized by Reuters Health, claims that acetaminophen, ibuprofen and other nonsteroidal anti-inflammatory drugs (NSAIDs) are better than opioids at easing the intensity of chronic pain in the back, knees or hips.

And opioids are no better than these other drugs at reducing how much pain interferes with daily activities like walking, working, sleeping or enjoying life, researchers report in JAMA, online March 6.

“We already knew opioids were more dangerous than other treatment options, because they put people at risk for accidental death and addiction,” said lead study author Dr. Erin Krebs of the Minneapolis VA Health Care System and the University of Minnesota. “This study shows that extra risk doesn’t come with any extra benefit,” Krebs said by email.

NSAIDs carry their own risks, especially at high doses, including the potential for internal bleeding, kidney damage and heart attacks. But they aren’t addictive.

For the current study, researchers randomly assigned 240 patients seeking pain treatment at VA primary care clinics to receive either opioids or alternative medicines like acetaminophen or ibuprofen for one year.

Participants were 58 years old on average and most were men. Back pain was their most common complaint, affecting 156 patients, or 65 percent, and the rest had either hip or knee osteoarthritis pain.

People in the opioid group started therapy with fast-acting morphine, a combination of hydrocodone and acetaminophen, or immediate release oxycodone. If that wasn’t successful, patients next got long-acting morphine or oxycodone, and then doctors tried fentanyl patches.

In the non-opioid group, patients first got acetaminophen and NSAIDs. If those options didn’t help enough, doctors tried options like the nerve pain drug gabapentin (Neurontin) and topical painkillers like lidocaine, followed by the nerve pain drug pregabalin (Lyrica) and tramadol, an opiate painkiller.

Researchers asked participants to rate how much pain interfered with their lives at the start of the study, and again 12 months later. By this measure, both groups improved equally over the course of the year, based on a 10-point scale with higher scores indicating worse impairment.

With opioids, scores declined from an average of 5.4 at the start of the study to 3.4 a year later. With other drugs, scores dropped from 5.5 to 3.3.

Patients also rated pain intensity on a 10-point scale with higher scores indicating more severe symptoms, and non-opioid drugs worked slightly better on this measure.

In both groups, patients initially rated their pain intensity at 5.4, but scores dropped to just 4.0 with opioids and fell to 3.5 on the other drugs.

One limitation of the study is that people knew which medications they were prescribed, which might affect how patients reported their own pain severity and daily functioning, the authors note.

Even so, the results offer fresh evidence that opioids may not be worth the addiction risk when treating chronic pain, said Marissa Seamans, a researcher at Johns Hopkins Bloomberg School of Public Health in Baltimore who wasn’t involved in the study. ‘There is increasing evidence that non-opioid pain relievers are just as (if not more) effective than opioids for chronic non-cancer pain,’ Seamans said by email.

Kyle Pike was employed by the County of San Diego as a Deputy Sheriff Detention.  On July 31, 2010 he injured his right shoulder and received a combination of Labor Code section 4850 salary continuation benefits and permanent disability benefits between October 27, 2010 and November 15, 2011 and April 30, 2015 through June 19, 2015.

Pike received a Stipulated Award of 12% permanent disability, and filed a timely Petition to Reopen on May 26, 2015 as he claimed an entitlement to Labor Code section 4850 benefits for the period September 15, 12 2015 through March 28, 2016, and temporary total disability benefits from March 29, 2016 through August 18,2016 which was beyond the five year time limit from the date of his injury.

The issue to be determined was whether applicant could receive additional benefits for periods of temporary disability that extended more than five years from his July 31, 2010 date of injury.

The WCJ concluded that when acting upon a timely petition to reopen, the Appeals Board may award temporary disability benefits more than five years from the date of injury, provided that applicant is limited to an aggregate of 104 weeks of benefits. A split panel decision denied reconsideration. However the court of appeal reversed in the published case of County of San Diego v WCAB, and Kyle Pike.

The court of appeal concluded that the plain language of the statute indicates that the T.D. benefit is limited to five years from the date of injury.

Section 4656, subdivision (c)(2) provides, “Aggregate disability payments for a single injury occurring on or after January 1, 2008,[ ] causing temporary disability shall not extend for more than 104 compensable weeks within a period of five years from the date of injury..” (Italics added.)

“The legislative history of section 4656, subdivision (c)(2) is entirely consistent with the statutory text in supporting the conclusion that the Legislature intended to limit temporary disability benefits to five years from the date of a worker’s injury for injuries occurring on or after January 1, 2008.”

“None of the arguments presented by Pike or the CAAA in support of Pike’s claim for benefits is persuasive.”

“Accordingly, we annul a Board order affirming a workers’ compensation administrative law judge’s order that awarded temporary disability benefits for periods of disability occurring more than five years after Pike’s injury.”

The City of Fresno entered into a written contract with the 21st District Agricultural Association, Big Fresno Fair whereby the City agreed to provide onsite police protection and law enforcement services to the Big Fresno Fair that would be held in October of 2011, 2012 and 2013. The District agreed to pay the City approximately $700,000 over the three-year term.

The contract contained a broad indemnification provision requiring the District to indemnify the City from all claims, expenses or liability occasioned by the City’s performance of the contract.

However, the contract also required the City to maintain certain insurance coverages “protecting the legal liability” of the District, including workers’ compensation coverage. The City’s method of furnishing such insurance coverage during the term of the contract was self-insurance.

In October of 2012, while providing law enforcement services at the Big Fresno Fair pursuant to the contract, two of the City’s police officers were injured when attempting to restrain a belligerent patron. The injuries resulted in the City paying out workers’ compensation benefits for the two police officers.

Later, the City sought to recover these amounts from the District under the contract’s indemnification provision. When the District refused to indemnify the City, the present action for breach of contract was commenced by the City against the District.

The parties filed cross motions for summary judgment in the trial court, with the City and the District each arguing alternative interpretations of the contract. The trial court agreed with the District that the specific insurance requirement placed the risk of loss for workers’ compensation claims for police services performed under the contract squarely on the City. The court of appeal affirmed the summary judgment against the City in the unpublished case of City of Fresno v. 21st District Agricultural Assn.

Where possible, courts are to interpret contractual language in a manner that gives force and effect to every provision, and not in a way that would render a provision nugatory, inoperative or meaningless.

It appears that the most reasonable way to harmonize the two provisions is to recognize, as the trial court did, that the insurance requirements placed the risk of loss on the City for claims covered by the agreed-upon insurance coverage (such as payment of workers’ compensation benefits), while the indemnification provision required the District to indemnify the City for all other (e.g., uninsured or uncovered) losses that might arise out of the provision of services under the contract, excepting those relating to the City’s own negligence or willful misconduct.

This interpretation is a reasonable reconciliation of the two contrasting provisions in a manner that gives meaningful effect to both, while avoiding any absurd or unreasonable results.

For years, it was hard to miss the billboards and radio jingles for a weight-loss surgery center that promised, “Let your new life begin, call 1-800-GET-THIN.”

But on Wednesday, federal prosecutors charged that the Lap-Band surgery operation was at the center of a massive fraud scheme that forced patients to undergo unnecessary tests, falsified medical tests to justify surgeries and cheated insurers and patients out of $250 million.

Julian Omidi, 49, of West Hollywood, and Mirali Zarrabi, 55, of Beverly Hills, were arrested pursuant to a federal indictment that alleges a host of criminal charges stemming from GET THIN’s Lap-Band (or bariatric) surgery and sleep study programs between May 2010 and March 2016.

Two corporations controlled, in part, by Omidi – Surgery Center Management, LLC (SCM), and Independent Medical Services, Inc. (IMS) – are also named in the 37-count superseding indictment that was unsealed this week.

The indictment contains charges of mail fraud, wire fraud, false statements, money laundering and aggravated identity theft.

Omidi, a physician whose license was revoked in 2009, controlled, in part, the GET THIN network of entities, including SCM and IMS, that focused on the promotion and performance of elective, Lap-Band weight-loss surgeries. Omidi established procedures requiring prospective Lap-Band patients – even those covered by insurance plans he knew would never cover Lap-Band surgery – to have at least one sleep study, and employees were incentivized with commissions to make sure the studies occurred, according to the indictment. The purpose of the sleep studies was to find a second reason – a “co-morbidity,” such as sleep apnea – that GET THIN would use to convince the patient’s insurance company to pre-approve the Lap-Band procedure.

After patients underwent sleep studies – often with little indication that any doctor had ever determined the study was medically necessary – GET THIN employees, acting at Omidi’s direction, allegedly often falsified the results to reflect that the patient had moderate or severe sleep apnea, and that they suffered from severe daytime sleepiness. Omidi then caused those falsified sleep study reports to be used in support of GET THIN’s pre-authorization requests for Lap-Band surgery.

Relying on the false sleep studies – as well as other false information, including patients’ heights and weights – insurance companies authorized payment for some of the proposed Lap-Band surgeries. The indictment alleges that GET THIN received at least $38 million for the Lap-Band procedures.

Even if the insurance company did not authorize the surgery, GET THIN still was able to submit bills for approximately $15,000 for each sleep study, receiving millions of dollars in payments for these claims, according to the indictment. The insurance payments were deposited into bank accounts associated with the GET THIN entities.

The victim health care benefit programs include TriCare, Anthem Blue Cross, UnitedHealthcare, Aetna, Cigna and others.

In 2014, the government seized more than $110 million in funds and securities from accounts held by individuals and entities involved in the criminal scheme described in the indictment, including Omidi. The government is seeking forfeiture of some or all of those funds in the criminal case, and also intends to pursue civil forfeiture of some or all of the assets.