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Tag: 2021 News

Owner of Construction Co. Faces $25M Premium Fraud Charge

49 year old Nissim Vaknin, who lives in Encino, was arraigned for felony insurance fraud after an investigation by the California Department of Insurance revealed he allegedly underreported employee payroll by over $70 million, in order to fraudulently reduce his business’s premium for workers’ compensation insurance by over $25 million.

The State Compensation Insurance Fund (SCIF) filed a suspected fraudulent claim in 2018 with the Department of Insurance after a routine payroll audit for Van Nuys-based NV Construction, owned by Vaknin, identified large discrepancies.

Department detectives conducted a search warrant of NV Construction’s bank records, which showed that for the policy period of October 2014 through March 2018, Vaknin reported a total of $4,083,483 in payroll to SCIF; however, the Department’s investigation found the actual payroll was $74,741,381.

Vaknin underreported payroll by over $70 million, resulting in a premium loss to SCIF of $25,129,032.

“By allegedly underreporting payroll, this business owner not only hurt other businesses who pay for this fraud through higher premiums, he also put their own employees at risk,” said Insurance Commissioner Ricardo Lara. “My Department is committed to investigating fraud in order to protect workers and honest businesses, especially now as our state is struggling through this pandemic.”

Vaknin was arraigned at the Los Angeles Superior Court on May 28, 2021. This case is being prosecuted by the Los Angeles County District Attorney’s Office.

WCAB Panel Allows New QME to Review Retired QME Reports

In 2018, Diana Barrett claimed injury to her psyche, hypertension and gastrointestinal system while employed as an animal services manager by the City of Yuba City. The employer denied her claim in its entirety.

Helayna Taylor, Ph.D. was the original psychological QME and issued a medical-legal evaluative report regarding applicant dated February 25, 2019. Dr. Taylor retired and the parties have stipulated that she is no longer a QME.

The parties disputed which documents may be sent to the replacement QME, Dr. Poston, and the contents of defendant’s proposed letter to the QME. Defendant objected to sending Dr. Taylor’s report to Dr. Poston.

The matter proceeded to trial regarding the issue of what documents should go to a new QME Dr. Poston.

The WCJ ordered that certain exhibits were not to be forwarded to Dr. Poston, including Dr. Taylor’s report. This aspect of the order was reversed in the panel decision of Barrett v City of Yuba City.

An adequate history and examination by the current QME should include review of the previous QME’s report in the absence of a basis for excluding the report from the record. The record reflects that Dr. Taylor’s report was obtained in accordance with the Labor Code. She was replaced as the QME because she retired. The record does not indicate a basis to preclude review of her report by the current QME.

Furthermore, Labor Code section 4062.3(a)(2) permits any party to provide medical records relevant to determination of the medical issues to a QME. (See also Cal. Code Regs., tit. 8, § 35(a)(2) [the employer shall provide to the medical-legal evaluator “[o]ther medical records, including any previous treatment records or information, which are relevant to determination of the medical issue(s) in dispute.”)

The panel noted that this “language is fairly expansive in what medical records may be provided to the QME.”

“Dr. Taylor conducted a psychological evaluation of applicant and addressed her psychiatric claim of injury. Causation for applicant’s psychiatric claim remains in dispute since defendant has not accepted it as compensable. Dr. Taylor’s report is consequently relevant to determination of the medical issues in dispute and may be provided to the current QME for his review.

Lyft Employee Classification Suit Favors State Over Federal Law

Million Seifu worked as a driver for Lyft, Inc.

Seifu filed a complaint against Lyft in July 2018, alleging a single Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.) claim on behalf of the state of California and other similarly situated individuals who worked as drivers for Lyft in California.

He alleged that Lyft misclassified him and other drivers as independent contractors rather than employees, thereby violating multiple provisions of the Labor Code.

Lyft petitioned to compel arbitration of Seifu’s individual PAGA claim and stay proceedings in the trial court pending arbitration. Lyft asserted that the PAGA waiver in Seifu’s arbitration agreement was enforceable under the 2018 United States Supreme Court opinion in Epic Systems Corp. v. Lewis.

The trial court denied the motion, rejecting Lyft’s argument that the clause in the arbitration provision waiving Seifu’s right to bring a representative PAGA claim was enforceable.

The court of appeal affirmed the trial court, and held the Lyft arbitration agreement was unenforceable in the unpublished case of Seifu v Lyft.

Epic Systems Corp. v. Lewis was one of three cases consolidated by the United States Supreme Court in 2017 that raised the issue of the Federal Arbitration Act’s preemptive effect over private employment arbitration agreements prohibiting class and collective actions.

In Iskanian Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, the California Supreme Court held “that an employee’s right to bring a PAGA action is unwaivable,” and that “where . . . an employment agreement compels the waiver of representative claims under the PAGA, it is contrary to public policy and unenforceable as a matter of state law.”

Numerous California Courts of Appeal have rejected the contention that Iskanian is no longer good law in the wake of Epic. On federal questions, intermediate appellate courts in California must follow the decisions of the California Supreme Court, unless the United States Supreme Court has decided the same question differently.

In this case the Court of Appeal agreed with the reasoning of the line of state cases, and conclude that Lyft’s argument regarding the PAGA waiver’s enforceability is without merit.

Jacoby & Meyers Referral Attorney Faces 26 Counts of Insurance Fraud

Bloomberg Law reports that a California attorney is facing charges for felony offenses stemming from an alleged marketing scheme involving the well known Jacoby & Meyers firm.

The 26 count criminal complaint filed by Orange County prosecutors alleges that 45 year old Steven Omid Mehr, used an illegal referral system to send potential clients to Jacoby & Meyers and load them up with fees in the process. His website claims his firm was awarded “Best Attorneys of America” by Rues Rating Service.

Mehr also allegedly used the system to direct business to copying and printing services providers he controlled, bilking unsuspecting clients and worker compensation insurance companies.

The indictment accuses Mehr of purchasing usage rights from Jacoby & Meyers in a referral-for-compensation criminal conspiracy for his attorney marketing firm, Web Shark 360. The URL for redirects to the Mehr website.

Mehr, has been a licensed attorney in California since 2005. Bloomberg Law reports that he described himself as “chairman of the Law Office of Jacoby & Meyers California operations” in a 2015 interview with an online legal industry publication. He purchased the L.A. Weekly in 2017 with other investors.

The indictment outlines a five-year conspiracy from 2011 to 2016 that allegedly involved Mehr and George Pershing Hobson, who is not an attorney.

Prosecutors say Mehr and Hobson’s arrangement violated California Labor Code Section 3215, which prohibits paid referrals in the worker’s compensation and insurance industries, as did their co-ownership of an interpretation company, National Translations Services.The indictment charges Mehr with two felony conspiracy counts for referral of clients for compensation, as well as 22 counts of insurance fraud.

He’s being prosecuted by Orange County Deputy District Attorney Noorul Hasan, who also is prosecuting Mehr. Hassan declined comment when reached by Bloomberg Law.

The case is California v. Mehr, Cal. Super. Ct., No. 21ZF0015. Mehr is set to be arraigned July 12 on the indictment, which a grand jury returned last April. Both defendants have posted $100,000 bond while they await trial.

The criminal indictment in California may have a similar pattern, and follows a proposed New Jersey class action against Jacoby & Meyers, in which the plaintiffs say a third-party service company extracted thousands of dollars in additional fees that should have already been paid by their lawyers.

The suit, filed in federal court in Newark, New Jersey, pertains to Nancy and Jeffrey Harding and their former lawyers, Finkelstein & Partners, LLP, and a similar dispute between Barbara J. Smalls and her former lawyers, Jacoby & Myers, LLP.for work sent to Total Trial Solutions, MedTrial Solutions and CineTrial Solutions.

According to the suit, the litigation support companies are owned by Andrew Finkelstein, a partner of both Jacoby and Finkelstein, and Kenneth Oliver, a former partner of both firms. Plaintiffs also allege that the Law Firm Defendants improperly marked-up the cost of Total Trial’s work in order to make a profit.

In a January 2020 ruling, U.S. District Judge John Michael Vazquez granted Jacoby & Meyers’ motion to dismiss a claim for unjust enrichment, but declined to dismiss the case based on a lack of standing for plaintiff Barbara Smalls. He also declined to throw out allegations that defendants Andrew Finkelstein, his firm Finkelstein & Partners, and a company called Total Trial Solutions are alter egos.

According to the lengthy federal court docket, motions are pending in the case which is not yet scheduled for trial.

What remains to be seen, is the evidence in the Orange County criminal case that may or may not connect the dots showing a similar practice in California as what is alleged in the New Jersey civil case, specifically with respect to workers’ compensation claims, and the liens generated for services in those cases. The focus in California will start with National Translations Services, and what is alleged by prosecutors.  And then to the copying and printing service providers.

No End in Sight to EDD Fraud Prosecutions.

A federal grand jury brought a six-count indictment against 34 Cecilia Aquino, of Fresno, charging her with mail fraud, wire fraud, and aggravated identity theft for submitting unemployment insurance claims and applications for Small Business Administration (SBA) Economic Injury and Disaster Loans using stolen identities.

According to court documents, from June through November 2020, Aquino submitted unemployment benefit claims in at least seven states and at least four loan applications that contained misrepresentations. She claimed that the named individuals last worked as self-employed dancers and owned interior design businesses, and that because of the COVID-19 pandemic, they lost their jobs and business revenue, respectively.

The state workforce agencies that administer the unemployment insurance system, the SBA, and the United States suffered an actual loss of at least $220,000 and were subject to a potential loss of more than $350,000 because of Aquino’s fraud. Aquino used the money for gambling, rent, shopping, and other personal expenditures.

If convicted, Aquino faces a maximum statutory penalty of 20 years in prison and a fine of up to $250,000 for each of the mail and wire fraud counts, and a mandatory two-year sentence consecutive to other counts and a fine of up to $250,000 for each of the aggravated identity theft counts.

And in an unrelated case, 44 year old Deborah Shannell Hollimon, of West Memphis, Arkansas, pleaded guilty to committing mail fraud in connection with California state unemployment insurance benefits.

This case was well before the current pandemic, and demonstrates that EDD fraud has existed for many years.

According to court documents, from September 2012 through September 2015, Hollimon and others filed over 100 fraudulent unemployment insurance claims with the California EDD seeking approximately $882,991 using fictitious businesses.

Hollimon created fictitious employers with EDD and then submitted information to EDD reporting fake employees for the businesses. Almost all, of the individuals reported as employees of the companies were actually victims of identity theft. Hollimon subsequently filed unemployment claims in her own name and in the names of the fake employees in order to collect the benefits. Approximately $569,168 in fraudulent benefits was paid out by EDD.

Hollimon is scheduled to be sentenced on Aug. 19. Hollimon faces a maximum statutory penalty of 20 years in prison and a $250,000 fine.

DOJ COVID – Health Care Fraud Coordinated Law Enforcement Actions

The Department of Justice announced criminal charges against 14 defendants in seven federal districts across the United States for their alleged participation in various health care fraud schemes, that exploited the COVID-19 pandemic and resulted in over $143 million in false billings.

Multiple defendants offered COVID-19 tests to Medicare beneficiaries at senior living facilities, drive-through COVID-19 testing sites, and medical offices to induce the beneficiaries to provide their personal identifying information and a saliva or blood sample.

The defendants are alleged to have then misused the information and samples to submit claims to Medicare for unrelated, medically unnecessary, and far more expensive laboratory tests, including cancer genetic testing, allergy testing, and respiratory pathogen panel tests.

In some cases, and as alleged, the COVID-19 test results were not provided to the beneficiaries in a timely fashion or were not reliable, risking the further spread of the disease, and the genetic, allergy, and respiratory pathogen testing was medically unnecessary, and, in many cases, the results were not provided to the patients or their actual primary care doctors.

The proceeds of the fraudulent schemes were allegedly laundered through shell corporations and used to purchase exotic automobiles and luxury real estate.

The Fraud Section is prosecuting the cases in the following districts: Western District of Arkansas, Northern District of California, Middle District of Louisiana, Central District of California, Southern District of Florida, District of New Jersey, and the Eastern District of New York.

Northern District of California

Mark Schena, 58, of Los Altos, California, the president of Arrayit Corporation, is charged along with two others, the Arrayit Vice President of Marketing and the President of an Arizona marketing organization, in connection with the submission of over $70 million in false and fraudulent claims for allergy and COVID-19 testing. The superseding indictment against Schena includes new counts of health care fraud, a conspiracy to pay kickbacks, and payment of kickbacks in connection with false and fraudulent statements about the existence, regulatory status, and accuracy of an Arrayit COVID-19 test. The conspiracy allegedly sought to induce the ordering of the Arrayit COVID-19 test and to bundle, i.e., require combination with, the COVID-19 test and Arrayit’s medically unnecessary allergy test. The COVID-19 test results were not provided in a timely fashion and were not reliable in detecting COVID-19.

Central District of California

Petros Hannesyan, 36, of Burbank, California, was charged with the theft of government property and wire fraud in connection with $229,454 that he obtained from COVID-19 relief programs. Hannesyan, the owner of Hollywood Home Health Services, Inc., a home health agency located in Los Angeles, allegedly misappropriated funds from the CARES Act Provider Relief Fund and submitted false loan applications and a false loan agreement to the Economic Injury Disaster Loan Program, rather than use the funds for COVID-19 patient care and to support small businesses experiencing disruption due to the COVID-19 pandemic.

Federal Judge Rejects $2B California Roundup Cancer Case Settlement

Many California agricultural workers have been exposed to a pesticide known as Roundup, and some of them may develop cancers. These cancer cases can then become continuous trauma claims under workers’ compensation law.

Thousands of Roundup tort cases are pending in civil courts in several states. A favorable outcome will likely support subrogation in the decades ahead for these claims.

Monsanto Company manufactures Roundup, a pesticide with the active ingredient glyphosate. Bayer AG acquired the agrochemical company in a multibillion-dollar merger in 2018.

Bayer to date has lost several U.S. jury trials in the Roundup litigation, with juries in California awarding multi-million dollar awards. In a recent California case, the jury returned a verdict in favor of plaintiff Edwin Hardeman, awarding him $5,267,634.10 in compensatory damages and $75 million in punitive damages. The district court reduced the jury’s punitive damages award to $20 million. This May, the Ninth Circuit Court of Appeals affirmed the a district court result in the published case of Edwin Hardeman v Monsanto Company.

These bellwether cases led up to attorneys for certain individual plaintiffs in the Multi District Litigation pending in Northern California, negotiating a class action settlement with Monsanto that would cover potential future lawsuits. Last February, Bayer announced it had reached a $2 billion settlement resolving outstanding and future legal issues). The proposed compensation would only have been considered for those who develop non-Hodgkins lymphoma within four years of settlement.

Attorneys representing cancer victims objected to the proposed settlement earlier this month and, ultimately, Judge Vince Chhabria agreed with them. In his newly issued opinion, Chhabria said Bayer’s proposed settlement was “clearly unreasonable” with “glaring flaws” that “vastly overstated” the potential benefits to future cancer victims from Roundup, particularly those who have not yet been diagnosed.

Judge Chhabria added “This is not a situation where the defendant is at risk of going bankrupt, such that only the first set of plaintiffs will be able to recover. Bayer (which recently acquired Monsanto) is a massive, wealthy company, and it continues to make money specifically from Roundup sales.”

“Nor is there any indication that the company will cease its efforts to settle cases. As recently as last week, Bayer stated publicly that it remains committed to settling Monsanto’s Roundup litigation. This is not surprising because the alternative to settling – continuing to lose trials left and right – is not attractive.”

In 2019, Chhabria oversaw the first federal trial on Edwin Hardeman’s claims that Monsanto sold Roundup without a warning label, after which a jury awarded Hardeman $75 million in punitive damages after finding years of Roundup use likely caused his non-Hodgkin lymphoma.

Injury by Unauthorized Homeless Person Conflict Compensable

Abraham Alex was employed as a security officer/guard by All Nation Security Services, Inc.

On August 24, 2017 a homeless person came inside the lobby of the Greyhound bus station where he was working. The homeless person was dancing and speaking badly in the lobby. An employee asked Applicant to escort the homeless person outside. Applicant asked whether the homeless person had a ticket and asked him to leave. The homeless person did not leave and cursed at Applicant and hit Applicant in the left temple with a fist. Applicant fell outside the lobby and the homeless person ran off.

He suffered a traumatic brain injury with evidence of intracranial hemorrhage for which he underwent surgery and continues to have symptoms associated with concussion. He filed a workers’ compensation claim for his injuries.

Company rules state that the security officer is expected to manage aggressive behavior or disturbed persons but refrain from chasing, restraining, and subduing individuals. The employee manual it provides that the security offices are “expected to challenge persons in a professional manner to enforce access to restricted areas” but are not to put themselves in danger. It further instructs officers to diffuse incidents verbally or call the proper authorities and refrain from touching, tackling, chasing, assaulting or grabbing anyone.

The employer denied the injury claiming it was outside the scope of his employment. However the WCJ concluded that “the record shows Applicant was performing his job as a security guard in furtherance of the Greyhound business when he was injured. This is true even if the injury was caused by an impact with the ground outside the station or if Applicant violated a policy in the process. Applicant is entitled to workers’ compensation benefits.”

Reconsideration was denied in the panel decision of Abraham Alex v All Nation Security Services Inc.

In Westbrooks v. Workers’ Comp. Appeals Bd. and Greyhound Lines (1988) 203 Cal.App.3d 249 [53 Cal.Comp.Cases 157], the Court of Appeals stated: Employee misconduct, whether negligent, willful, or even criminal, does not necessarily preclude recovery under workers’ compensation law. In the absence of an applicable statutory defense, such misconduct will bar recovery only when it constitutes a deviation from the scope of employment.

In determining whether particular misconduct takes an employee outside the scope of his employment, “A distinction must be made between an unauthorized departure from the course of employment and the performance of a duty in an unauthorized manner. Injury occurring during the course of the former conduct is not compensable. The latter conduct, while it may constitute serious and willful misconduct by the employee (Lab. Code, § 4551), does not take the employee outside the course of his employment.”

If the employment places an applicant in a location and he or she was doing an activity reasonably attributable to employment or incidental thereto, an applicant will be in the course of employment and the injury may be industrially related. (Western Greyhound Lines v. Ind. Acc. Com. (Brooks) (1964) 225 Cal.App.2d 517 [29 Cal.Comp.Cases 43].)

WCAB Declines Jurisdiction Over UR/IMR Dispute

Shauna Van Brunt sustained an admitted injury to the lumbar spine and left lower leg while working for VCA Antech Inc., a large network of veterinary hospitals and clinical laboratories.

Her PTP submitted multiple requests for authorization, each for a quantity of 450 Buprenorphine pills. The requests for authorization were submitted for utilization review, which certified progressively reduced quantities of the Buprenorphine between July 15, 2020 and October 22, 2020, eventually denying certification of Buprenorphine in UR determinations dated November 16, 2020 and November 24, 2020.

Independent Medical Review was requested for the UR decisions dated September 22, 2020 and October 22, 2020. The former certified 360 Buprenorphine pills, and the latter certified 325 pills. Both were upheld in IMR determinations dated November 16, 2020 and November 24, 2020. There was no appeal of the IMR determinations.

The parties appeared at an Expedited Hearing on December 18, 2020. The issues were whether it was appropriate for defendant, through UR, to wean the applicant off a medication on which she is dependent, and whether there was jurisdiction for the Appeals Board to address this dispute.

The WCJ found that the Appeals Board lacks jurisdiction to review the UR decisions and the IMR decisions. Applicant sought reconsideration or in the alternative removal of the Findings of Fact. The WCAB denied both in the panel decision of Shauna Van Brunt v. VCA Antech, Inc., 2021 Cal. Wrk. Comp. P.D. LEXIS 114.

The Appeals Board has jurisdiction to determine whether a UR decision is timely. (Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298, 1299 (Appeals Board en banc) (Dubon II).)

However, “where a UR decision is timely, IMR is the sole vehicle for reviewing the UR physician’s expert opinion regarding the medical necessity of a proposed treatment.” (Id. at pp. 1310-1311; see also Lab. Code, §§ 4062(b), 4610.5; King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1048 [83 Cal.Comp.Cases 1523] [IMR “is the exclusive mechanism for review of a utilization review decision”].)

Additionally, applicant did not demonstrate in what way defendant’s actions constitute bad faith.

With respect to her arguments that more than one UR reviewer was not authorized by regulations, “the statute does not state that all utilization review pertaining to a single patient or extended course of treatment must be conducted by the same reviewer.”

With respect to applicant’s contention that she had been taking Buprenorphine for years and there was no change in circumstances when additional requests for this medication were made, the Appeals Board has previously found that recurring prescriptions are not the sort of ongoing care that cannot be unilaterally terminated. (See Mumm v. Workers’ Comp. Appeals Bd. (2020) 85 Cal.Comp.Cases 647 (writ den.)

Authorization of one prescription does not automatically mean that recurring prescriptions of that medication must be authorized indefinitely; the treating physician has an obligation to document the need for each recurring prescription, especially when the prescriptions are for heavily regulated opioid medications.

California Leads Nation in COVID Civil Litigation Claims

The Fisher Phillips COVID-19 Employment Litigation Tracker And Insights depicts a continued string of COVID related litigation being filed nationwide, and California leads the nation in cases filed.

This COVID-19 Employment Litigation Tracker includes cases that were a direct result of the COVID-19 pandemic and are traditional employee vs. employer cases – both individual plaintiff and class actions. This should be considered a comprehensive, but not exhaustive, dataset.

As of today, the firm reports 2,408 cases filed nationwide. California has 548 of them, with New Jersey (311), Florida (176), Ohio (165) and New York (158) in the list of the top five states by case count. Two new cases were filed in California in the last seven days.

The top five reasons for litigation shows 185 of the 548 California cases are for employment discrimination, 153 for retaliation/whistleblower, 121 for remote work/leave conflicts, 53 for wage our problems, 37 for unsafe workplace and 12 for wrongful discharge.

By industry, in California 19.7% of cases are in healthcare, 11% in retail, 9.2% in hospitality, 7% in manufacturing and in fifth place 6.7% in professional and technical services.

The analysis by the Firm claims “many employers across the country find themselves swimming in costly and prolonged litigation fallout arising from legal claims alleging they failed to accommodate workers impacted by the virus.”

The healthcare industry is distinctive target for such claims given the unique danger the work environment presents to employees; e.g., the heightened likelihood of even minimal exposure to infected patients and/or contaminated areas. As the numbers of infected patients decrease, we are seeing an increase in lawsuits alleging that healthcare employers failed to accommodate disabled employees more susceptible to fatal COVID-19 transmission.”

“This trend presents a somber reminder for healthcare employers: even when inundated in a global state of emergency, there remains the duty to dedicate time and prudent consideration to the interactive process when initiated by an employee with a medical disability.”

From the Golden State to the coastal city of New Haven, Connecticut, healthcare facilities are fighting disability discrimination claims for the alleged failure to accommodate employees with respiratory conditions, including asthma and cancer, which increase susceptibility to calamitous complications from COVID-19 transmission.”

“For example, at Yale New Haven Hospital, an “administrative associate” at the Hospital’s blood bank was allegedly denied continued work-from-home (WFH) status despite having successfully worked remotely during the national shutdown. When the Hospital required all employees to return to work sites in May 2020, it allegedly denied a reasonable accommodation request by an associate who has cancer (making virus infection much more dangerous).”

“In a very similar fact pattern on the other side of the country in California’s capitol, Western Health Advantage allegedly denied WFH status to a data analyst stricken with asthma, despite the claim that it allowed similarly situated employees (e.g. other data analysts) without disabilities to work remotely.

“And back on the east coast in New Jersey, a home healthcare company allegedly denied an occupational therapist also suffering from asthma an exemption from treating COVID-19 infected patients.