Tag: 2019 News

A California Court of Appeal just made a sweeping change in California’s reporting time pay rules which now limits a common “on-call” scheduling practice used by employers throughout the state.

In 2012, Skylar Ward worked as a sales clerk in a Tilly’s, Inc., store in Torrance, California.

Under Tilly’s scheduling policy, Ward was required to call in approximately two hours before the start of her shift to determine whether she needed to come to work. If Tilly’s told her to report to work, she was required to do so and would be paid for that shift as normal. However, if Tilly’s informed her that there was no need to come in, Ms. Ward would receive no compensation.

Ward filed a putative class action complaint in 2015. The trial court sustained a demurrer without leave to amend, finding that by merely calling in to learn whether an employee will work a call-in shift, Ward and other employees do not report to work as contemplated by Wage Order 7. The court of appeal reversed in the published case of Ward v. Tilly’s, Inc.

The court held that merely calling in for one of these mandatory on-call shifts constitutes “report[ing] to work,” which entitled Ms. Ward and her coworkers to a minimum of two hours of reporting time pay under the applicable wage order.

Prior to the case, various courts had disagreed about what it truly meant to “report to work” within the context of this provision, with many courts – not to mention employers – understandably believing that this required the employee to physically report to the workplace location in order to be eligible for reporting time pay.

In relevant part, the court examined the language from the reporting time rule contained within Wage Order No. 7-2001 codified at California Code of Regulations, title 8, section 11070.

The court ultimately reasoned that even having to place a telephone call as part of a mandatory on-call schedule fell within this “reporting” rule for two main reasons. First, requiring reporting time pay would “require employers to internalize some of the costs of overscheduling, thus encouraging employers to accurately project their labor needs and to schedule accordingly.”

Second, it would also “compensate employees for the inconvenience and expense associated with making themselves available to work on-call shifts, including forgoing other employment, hiring caregivers for children or elders, and traveling to a worksite. In relying on these public policy considerations, the court aligned itself with prior California cases that tended to tie the compensability of worktime to the degree of employer control over an employee’s activities.

The court left several key questions unanswered. Most notably, the court failed to address the issue of whether its holding would apply retroactively – potentially exposing countless employers across the state that utilize similar on-call scheduling policies to staggering class action liability.

The court also neglected to address the inherent line-drawing problem contained within its decision; that is, how long before a shift could an employee call in and still have it constitute compensable reporting? If not two hours, then how long?

A federal grand jury indicted Dr. George David, a Freemont Psychiatrist, and Linda Nguyen with conspiracy to commit mail fraud and substantive mail fraud.

According to the indictment filed January 29, 2019, and unsealed in February, David, 78, and Nguyen, 66, of Union City, engaged in a scheme to defraud California’s State Disability Insurance (SDI) program.

The SDI program is designed to provide partial wage replacement benefits to eligible California workers who are unable to work due to a non-work-related illness, injury, or pregnancy.

To receive SDI benefits, a claimant must file a claim for benefits supported by a Physician/Practitioner Certification attesting to the claimant’s disability.

According to the indictment, David provided fraudulent Physician/Practitioner Certifications to support fraudulent SDI applications for non-disabled claimants. In addition, the indictment alleges that Nguyen facilitated the fraud by assisting non-disabled persons with the execution and submission of fraudulent documents.

The indictment further alleges that Nguyen charged the non-disabled persons for processing their fraudulent applications. In sum, the defendants each were charged with one count of conspiracy to commit mail fraud, in violation of 18 U.S.C. § 1349, and one count of substantive mail fraud, in violation of 18 U.S.C. § 1341.

The defendants were arrested and made their initial appearances before U.S. Magistrate Judge Donna M. Ryu. Both defendants were released on bond. Magistrate Judge Ryu scheduled David’s and Nguyen’s next appearances for February 8 and February 15, 2019, respectively, for arraignment and identification of counsel.

If found guilty, the defendants face a maximum statutory sentence of 20 years in prison for each count in the indictment. However, any sentence following conviction would be imposed by the court after consideration of the U.S. Sentencing Guidelines and the federal statute governing the imposition of a sentence, 18 U.S.C. § 3553.

Special Assistant U.S. Attorney Christopher Vieira is prosecuting the case with the assistance of Kimberly Richardson. The prosecution is the result of an investigation by the FBI and Social Security Administration Office of the Inspector General.

As the first company to offer telehealth in the workers’ compensation space, there was no roadmap to follow. Since adding telehealth services in 2015, CorVel has now completed 10,000 virtual visits. With this significant milestone, David Lupinsky, CorVel’s Vice President of Medical Review Services reported on a few of the lessons the company learned:

In order to make telehealth equally efficacious to the brick and mortar visit, it needed to offer the same features patients have come to expect, value, and appreciate. Immediate access to medical services such as physical therapy, diagnostics imaging, pharmacotherapy, and durable medical equipment are essential to a successful telehealth offering.

Telehealth physicians have prescribed medications, ordered vaccines, requested durable medical equipment, and scheduled short term physical therapy and diagnostic imaging when clinically appropriate.

Brick and mortar evaluations take 4+ hours on average, factoring travel and wait times, while virtual visits last an average 30 minutes from start to finish. And though it is customary for injured employees to wait 1-2 days for the claim to be completely set up before receiving treatment, telehealth provides appropriate clinical care within minutes of the injury. Moreover, all claims data obtained through virtual visits is loaded into CareMC, its claims management technology, making the information immediately and easily accessible for all constituents.

Interdisciplinary care is defined by its multi-specialty shared relationships and common goals. While it’s appropriate to have multiple team members and providers working on a claim, CorVel has learned the importance of working towards a shared goal of providing timely, appropriate care for injured workers.

To ensure consistent protocols and concordance with each case, it has a dedicated medical director who oversees telehealth physicians and maintains communication with the nursing director. Communication between the claims intake department (FNOL), triage nurse, and treating telehealth physician significantly reduces duplication of services and thus patient wait times, patient frustration, and coding errors.

As a result of an integrated and shared database, all data captured by its 24/7 nurse triage and telehealth services can be accessed by both its FNOL intake team and our adjusters in real time. This is crucial to minimizing talk time, ensuring consistency, and maximizing the patient experience.

With telehealth becoming more popular in “mainstream healthcare”, it is now an expectation for injured employees. Since patients expect a telehealth platform to provide these services, it’s essential they be delivered in a coordinated fashion with updated clinical notes available to the providers on follow up visits to maintain an equal or superior standard of care to brick and mortar outcomes.

Healthcare is evolving and at the core of its change is data and artificial intelligence (AI). At CorVel, it has utilized AI with the Edge, its completely modernized claims management portal. The Edge takes claims data from a variety of sources, including bill review and pharmacy, to identify potential risk for certain claims and push out telehealth visits to mitigate the risk.

The real cost of a “minor” injury can significantly change when viewed in the context of medications, psychosocial factors, testing, and opioids. Automatic identification of these proprietary factors can elevate this case to higher acuity and a telehealth visit can be pushed out to the patient for a collaborative and holistic approach to care that can be implemented while working in tandem with other treating physician already involved in the patient’s care.

Being able to integrate this data into its claims management platform has allowed CorVel to prevent many minor injuries from becoming expensive claims. Read Corvel’s recent white paper, Breaking Down Barriers, to learn more about its approach to telehealth in performance-based networks.

The San Francisco Chronicle reports that three women who say they were sexually assaulted by an Oakland doctor who reviewed their cases for workers’ compensation claims have sued the state of California and several insurance providers, alleging the agencies were aware of the doctor’s abuse and continued sending patients to him anyway.

The women, who are not identified in the complaint, were required to see Dr. John Warbritton after being injured while at work and filing for workers’ compensation with the state. They each said they reported the alleged abuse by Warbritton and were told they would have to continue seeing him for their claims to proceed.

Warbritton was a QME, and an orthopedic specialist in the East Bay since 1982 but lost his medical license in April 2017, after two of the women accused him of sexual misconduct. Warbritton voluntarily gave up his license.

At the time, Warbritton’s license was already suspended because of charges filed against him in 2016 for transporting child pornography images on his phone and a laptop while flying from Thailand to San Francisco. Warbritton pleaded guilty to the child pornography charges and was sentenced to seven years in prison in September 2018.

The new complaint, filed Jan. 22 in Alameda County Superior Court, alleges that Warbritton’s history of abuse toward female patients was so well known that the agencies that worked with him should be held accountable. The complaint is filed as a class action, and attorney Waukeen McCoy said he expects more women to join the case as it becomes public.

Three insurance providers also are named as defendants: Travelers Indemnity Company in Hartford, Conn.; JT2 Integrated Resources in Oakland; and York Risk Services Group in Jersey City, N.J. Officials from those companies did not respond to requests for comment on the complaint.

Warbritton was suspended as a QME in February 2018, 10 months after he lost his medical license and while the child pornography charges were under investigation.

All of the women said they reported being molested by Warbritton to their lawyers, and in some cases to other doctors treating them and to the insurance providers. One woman said in an interview that her attorney had heard similar complaints about Warbritton before.

In the complaint, the women describe multiple incidents of inappropriate language and touching. All of the women said he touched them on the breast, thigh or between the legs in an inappropriate way. They say Warbritton made comments about their bodies and their undergarments. They say he talked about his sex life and made references to having sex with employees when they were underage.

In a unanimous opinion decided this January, the United States Supreme Court continued its expansive reading of the Federal Arbitration Act and arbitration provisions, rebuffing an effort by some to erect an additional hurdle that would interfere with an employers’ ability to enforce arbitration agreements. The case is Henry Schein Inc. v. Archer and White Sales Inc.

By rejecting the “wholly groundless” exception that courts had used to “spot-check” whether a claim of arbitrability was plausible before compelling arbitration, all lower federal courts must now compel arbitration in all cases where the parties have agreed to delegate the issue of “who decides what is arbitrable” to an arbitrator.

The Court’s decision – the first authored by Justice Brett Kavanaugh – extinguishes a conflict among various circuit courts of appeal and provides uniform guidance to employers who use arbitration agreements throughout the country. Employers should familiarize themselves with the ruling in order to ensure that their dispute resolution plans are fully compliant and in line with this decision.

In keeping with its recent interest in defining the contours of the FAA, the Court accepted the case to clear up the conflict among the circuit courts. A unanimous Court reiterated that it meant what it said in the 2009 Rent-A-Center, West Inc. v Jackson case and that the parties are certainly free to delegate issues of arbitrability to an arbitrator: “The FAA does not contain a ‘wholly groundless’ exception, and we are not at liberty to rewrite the statute passed by Congress and signed by the President.” The Court went further and confirmed it saw no reason to “engraft our own exceptions onto the statutory text.”

There’s a double dose of good news for employers in the Henry Schein ruling. First off, the decision clears up conflicting case law in the various circuits, and employers now know there is a uniform interpretation as to the enforceability of parties’ delegations of arbitrability to an arbitrator. Second, the decision sweeps aside a possible hurdle that might have otherwise existed in trying to enforce an arbitration agreement with employees.

However, liberal legislators are very unhappy with the broad rights to arbitrate agreements. Congress has once again proposed legislation that would seek to ban mandatory workplace arbitration of employment claims, despite a string of United States Supreme Court decisions upholding arbitration and class/collective action waivers as a lawful and appropriate mechanism to resolve workplace disputes.

H.R. 7109, the Restoring Justice for Workers Act, was introduced by Representative Jerrold Nadler, D-N.Y., and Representative Bobby Scott, D-Va., with 58 Democratic co-sponsors. Similar legislation is expected to be introduced in the Senate by Senator Patty Murray, D-Wash, with eight Democratic co-sponsors. The proposed legislation would overturn the U.S. Supreme Court’s decision in Epic Systems, and would amend the National Labor Relations Act to specifically prohibit class and collective action waivers under a new “Section 8(a)(6).”