Menu Close

Tag: 2022 News

Study Shows Robotic Knee Surgeries Reduce Bone and Soft-Tissue injury

The University College Hospital in London researchers were trying to reel in some of the surgical trauma inherent in all surgery. That trauma, better known as local inflammatory response, could be, they hypothesized, a cause of sub-optimal TKA patient outcomes.

A team from University College Hospital in London, United Kingdom designed a study to check that hypothesis and the results, “Inflammatory Response in Robotic-Arm-Assisted Versus Conventional Jig-Based TKA and the Correlation with Early Functional Outcomes.” was published in the November 2, 2022, edition of The Journal of Bone and Joint Surgery. And the study was reviewed in an article just published in Orthopedics This Week (OTW).

Andreas Fontalis, M.D., M.Sc., M.R.C.S. co-author on the research explained to OTW, “There is high incidence of patient dissatisfaction following total knee arthroplasty (TKA), with up to 20% of patients reporting dissatisfaction in an otherwise uncomplicated TKA. The exact etiology is unclear; however, it has been speculated that the local inflammatory response precipitated by surgery may be implicated.”

“Our group recently conducted and disseminated the results of a randomized controlled trial studying the systemic inflammatory response in robotic-arm-assisted versus conventional TKA. We found that robotic-arm-assisted TKA was associated with a transient reduction on the 7th postoperative day and with less iatrogenic soft tissue injury and bone trauma. Conceptually, we hypothesized that it could also be associated with a reduction in local inflammation.”

Furthermore, robotic-arm assistance has features that could translate to a reduced local inflammatory response such as the haptically controlled saw blade and stereotactic boundaries.”

“The surgical workflow during the conventional technique also involves the use of intramedullary femoral referencing and cutting blocks associated with production of substantial metal debris; all of which could be responsible for a more pronounced inflammatory response.”

“We therefore thought it important to objectively study the local inflammation incited by the two procedures and investigate whether any correlation was evident with functional outcomes.

The researchers looked at 30 patients who had TKA for knee osteoarthritis – 15 of whom had traditional TKA and 15 who had robotic-arm-assisted TKA. They obtained data on the inflammatory markers IL-6, IL-8, and tumor necrosis factor (TNF)-alpha.

“In our study,” commented Dr. Fontalis to OTW, “robotic-arm assistance was associated with lower postoperative levels of IL-6 measured in the drain fluid at 6 and 24 hours and lower levels of IL-8 in the drain fluid at 6 hours. We also noticed that pain scores in the robotic-arm-assisted group were significantly lower on days 1,2 and 7 and that both the local and the systemic responses were correlated with pain.”

“We were surprised by how pronounced the differences were with respect to IL-6 levels at the 24-hour post-operative mark, which could reflect the ability of robotic technology to reduce bone and soft-tissue injury by averting multiple cuts and by more precisely executing the preoperative plan.”

Our study furthers evidence of the advantages of robotic arm surgery. Larger studies and clinical correlation may lead to the increased adoption of enhanced technologies such as robotic-arm-assisted surgery in order to improve patient outcomes.”

Researchers Find Good Knee and Hip Surgery Outcomes in Patients Over 90

Undergoing the rigors of hip or knee surgery at 90 years or older (nonagenarians) is, understandably, cause for concern and hesitation.

But a group of researchers in California decided to look at the data and determine, objectively, if these patients indeed have an increased risk of complications and hospital readmission as compared with octogenarians and septuagenarians.

Their work, “Hip and Knee Arthroplasty Outcomes for Nonagenarian Patients,” was published in the November 15, 2022, edition of the Journal of the American Academy of Orthopaedic Surgeons.  This study was reviewed in an article published by Orthopedics This Week (OTW).

Co-author William Bugbee, M.D. chief of the Joint Preservation and Cartilage Restoration Service at Scripps Clinic in La Jolla, told OTW, “As our population ages and more people are living active lives into their nineties and beyond, we are more and more frequently confronted with elderly patients that are suffering with life-defining arthritis of the hip or knee. These patients, like their younger counterparts, are seeking ways to improve the quality of their lives and maintain their independence and mobility and have not had success with nonsurgical care.”

It is now commonplace to perform joint replacement in patients in their seventies and eighties but much less common to do so when people are in their nineties. We felt that there was not enough data to guide us, as surgeons, to provide a clear risk, benefit counseling regarding joint replacement for these very elderly patients.”

Mining the Scripps database, the researchers identified patients aged 90 or older who had primary unilateral total joint arthroplasty (TJA) from 2010 to 2017 by one of five surgeons. A total of 58 nonagenarians were identified, with 31 undergoing total hip arthroplasty (THA) and 27 undergoing total knee arthroplasty (TKA). The researchers matched each nonagenarian with an octogenarian (age 80 to 84 years) and septuagenarian (age 70 to 74 years). The researchers noted complications – either medical or orthopedic – that occurred intraoperatively, during hospital admission, and after hospital discharge.

The team found that nonagenarians had the highest rate of medical complications (33%) compared with octogenarians (14%) and septuagenarians (3%). However, the rates of surgical (orthopedic-related) complications were not statistically different among nonagenarians (12%), octogenarians (9%), and septuagenarians (10%). Hospital readmission rates were highest in nonagenarian patients (11%) but were not statistically different compared with octogenarians (5%) or septuagenarians (2%).

“First, unsurprisingly, complication rates increased with age,” stated Dr. Bugbee to OTW. “Nonagenarians had a higher overall complication rate, but most of these were minor and resolved over time. Importantly, deaths were not more frequent in the oldest group.”

“Elderly patients are generally most worried about being either ‘more crippled’ or dying when undergoing elective orthopaedic surgery. We found here was no statistically significant difference in orthopaedic complications or mortality in the older cohort of patients in their nineties compared to patients in their seventies or eighties. Furthermore, these patients are just as happy with their outcome as any other group.”

I believe that this study demonstrates that age alone should not be an absolute contraindication to joint replacement surgery and that nonagenarians with severe hip or knee arthritis should be afforded the opportunity to choose surgical care as an alternative to the status quo of their lives. Surgical care involves risk at any age, but we can now better define that risk for this group of nonagenarian patients.”

NLRB Says USC Student Athletes are USC, Pac-12 and NCAA Employees

In 2020, activism among players at academic Institutions sky-rocketed. In addition to social rights issues, player groups sought open communication between players and university and NCAA leadership, and, ultimately, a “college football players’ association” to represent them.

And these players at Academic Institutions have been gaining more power as they better understand their value in generating billions of dollars in revenue for their colleges and universities, athletic conferences, and the NCAA. And their litigation is being closely followed by employment law communities.

In February 2021, General Counsel for the National Labor Relations Board, Jennifer Abruzzo, issued a memorandum (GC 21-08) on the status of college athletes as “employees” under the National Labor Relations Act. Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act,.

The student athletes also found support from the United States Supreme Court when it decided Alston v NCAA 141 S. Ct. 2141 (2021) in June of last year. SCOTUS recognized that amateurism in college sports has changed significantly in recent decades, and ruled that the NCAA can’t use the‘amateurism’ label to break antitrust laws.

Justice Kavanaugh, in his concurring opinion in Alston, went further. He strongly suggested that the NCAA’s remaining compensation rules also violate antitrust laws and questioned “whether the NCAA and its member colleges can continue to justify not paying student athletes a fair share” of the billions of dollars in revenue that they generate. Moreover, he suggested that one mechanism by which colleges and students could resolve the difficult questions regarding compensation is by “engag[ing] in collective bargaining.”

This SCOTUS decision is likely a precursor to more changes to come in college athletics. Specifically, commentators argue that, as courts “continue to chip away at NCAA restrictions on benefits to student-athletes, more compensation that is untethered to academics brings student-athletes more fully within ‘employee status’ under the law.”

After these successful legal developments, a group that advocates for college athletes in California filed unfair labor practice charges in February 2022, with the National Labor Relations Board on behalf of football players and men’s and women’s basketball players at UCLA and the University of Southern California. The charges, made by the National College Players Association, also name the NCAA and the Pac-12 Conference, essentially claiming that the association and the conference jointly employ the athletes along with the schools.

The filings follow a similar effort started by another athlete-advocacy group, the College Basketball Players Association, which filed a charge against the NCAA. Both bids come in the wake of the National Labor Relations Board’s general counsel memorandum in September.

Following this filing, on December 15, 2022, the Regional Director of the Los Angeles Region of the National Labor Relations Board the NLRB’s Division of Advice has directed the NLRB Region to pursue the NCPA’s unfair labor practice (ULP) charges against USC, the Pac-12 Conference, and the NCAA as joint, statutory employers of USC football players, men’s basketball players, and women’s basketball players.

At the request of NLRB’s Division of Advice, the NCPA agreed to withdraw its ULP charge against UCLA, a state funded school, but will continue against USC a private institution, and the NLRB’s Los Angeles Region will now take action to force a settlement with the employers to end the ULPs or prosecute the employers and go to trial.

If upheld, USC football and basketball players’ employee status under joint employers (college,conference, and NCAA) will ultimately apply to all FBS football players and Division I basketball players at private schools.

If the Pac-12 and NCAA are found to be employers, it could open the doors for athletes at other Football Bowl Subdivision schools to argue that they are employees, even if they attend public schools such as UCLA.

The NCPA’s case with the NLRB is the latest in a string of unionization efforts among college athletes and their advocates. Another recent effort came in 2014 and 2015, when Northwestern football players attempted to unionize. The NLRB declined to accept jurisdiction in the case, however, saying at the time that it did not have jurisdiction over public schools.

Private Equity Invests $206B In 1,400 Healthcare Acquisitions in 2021

Private equity firms pool money from investors, ranging from wealthy people to college endowments and pension funds. They use that money to buy into businesses they hope to flip at a sizable profit, usually within three to seven years, by making them more efficient and lucrative.

Private equity is rapidly moving to reshape health care in America, coming off a banner year in 2021, when the deep-pocketed firms plowed $206 billion into more than 1,400 health care acquisitions, according to industry tracker PitchBook, and has poured nearly $1 trillion into nearly 8,000 health care transactions during the past decade.

And this might become a cost and quality control problem for workers’ compensation claim administrators.

And according to an analysis of this data and report by Kaiser Health News. these investors are buying into eye care clinics, dental management chains, physician practices, hospices, pet care providers, and thousands of other companies that render medical care nearly from cradle to grave. Private equity-backed groups have even set up special “obstetric emergency departments” at some hospitals, which can charge expectant mothers hundreds of dollars extra for routine perinatal care.

As private equity extends its reach into health care, evidence is mounting that the penetration has led to higher prices and diminished quality of care, a KHN investigation has found. KHN found that companies owned or managed by private equity firms have agreed to pay fines of more than $500 million since 2014 to settle at least 34 lawsuits filed under the False Claims Act, a federal law that punishes false billing submissions to the federal government with fines. Most of the time, the private equity owners have avoided liability.

Private equity has flocked to companies that treat autism, drug addiction, and other behavioral health conditions. The firms have made inroads into ancillary services such as diagnostic and urine-testing and software for managing billing and other aspects of medical practice.

Private equity has done so much buying that it now dominates several specialized medical services, such as anesthesiology and gastroenterology, in a few metropolitan areas, according to new research made available to KHN by the Nicholas C. Petris Center at UC-Berkeley.

New research by the University of California-Berkeley has identified “hot spots” where private equity firms have quietly moved from having a small foothold to controlling more than two-thirds of the market for physician services such as anesthesiology and gastroenterology in 2021. And KHN found that in San Antonio, more than two dozen gastroenterology offices are controlled by a private equity-backed group.

Whistleblowers and injured patients are turning to the courts to press allegations of misconduct or other improper business dealings. The lawsuits allege that some private equity firms, or companies they invested in, have boosted the bottom line by violating federal false claims and anti-kickback laws or through other profit-boosting strategies that could harm patients.

“Their model is to deliver short-term financial goals and in order to do that you have to cut corners,” said Mary Inman, an attorney who represents whistleblowers.

Federal regulators, meanwhile, are almost blind to the incursion, since private equity typically acquires practices and hospitals below the regulatory radar. KHN found that more than 90% of private equity takeovers or investments fall below the $101 million threshold that triggers an antitrust review by the Federal Trade Commission and the U.S. Justice Department.

Fund managers who back the deals often say they have the expertise to reduce waste and turn around inefficient, or moribund, businesses, and they tout their role in helping to finance new drugs and technologies expected to benefit patients in years to come.

Critics see a far less rosy picture. They argue that private equity’s playbook, while it may work in some industries, is ill suited for health care, when people’s lives are on the line.

These expansions can lead to higher prices for patients, said Yashaswini Singh, a researcher at the Bloomberg School of Public Health at Johns Hopkins University.  In a study of 578 physician practices in dermatology, ophthalmology, and gastroenterology published in JAMA Health Forum in September, Singh and her team tied private equity takeovers to an average increase of $71 per medical claim filed and a 9% increase in lengthy, more costly, patient visits.

Singh said in an interview that private equity may develop protocols that bring patients back to see physicians more often than in the past, which can drive up costs, or order more lucrative medical services, whether needed or not, that boost profits.

“There are more questions than answers,” Singh said. “It really is a black hole.”

WCIRB Reports Premiums Up 7% – But Combined Loss Ratio is 111%

The Workers’ Compensation Insurance Rating Bureau of California (WCIRB) has released its Quarterly Experience Report – As of September 30, 2022. This report is an update on California statewide insurer experience valued as of September 30, 2022.

Highlights of the report include:

– – Despite continued declines in insurer rates, written premium for the first three quarters of 2022 is 15% above that for the same period of 2021. Much of the increase is being driven by higher employee wage levels and the continued economic recovery.
– – Premium on policies incepting in the first nine months of 2022 is 7 percent higher than premium on policies incepting in the first nine months of 2021.
– – The average charged rate for the first three quarters of 2022 is 7 percent below that for 2021 and the lowest in decades.
– – The projected loss ratio for 2021, including the cost of COVID-19 claims, is 6 points above that for 2020 and 13 points above that for 2019.
– – Projected loss ratios have been growing steadily since 2016, mostly due to declining insurer rate levels and modest increases in average claim severity.
– – The projected combined ratio for 2021, including COVID-19 claims, is 8 points higher than 2020 and 35 points higher than the low point in 2016.
– – Excluding COVID-19 claims, the projected combined ratio for 2021 is 111% and the projected ratio for 2020 is 101%, which are still higher than those of recent prior years.
– – Indemnity claims had been settling quicker through the first quarter of 2020, primarily driven by the reforms of SB 863 and SB 1160.
– – A significant surge in the share of COVID-19 claims occurred in December 2021 and January 2022, driven by the Omicron variant.
– – COVID-19 indemnity claim frequency dropped significantly following the January 2022 surge but modestly increased through July during the recent surge of infections in California.
– – Projected total indemnity claim severity for 2021, excluding COVID-19 claims, is 1% below 2020 but 13% above 2017.
– – Following several years of flat indemnity severities, the projected indemnity severity for 2021 is 1% higher than 2020 and 19% higher than 2017.
– – The projected medical severity for 2021 is 2% lower than 2020 but 12% higher than 2017.
– – Pharmaceutical costs per claim decreased by 84% from 2012 through 2021.

The information presented reflects a compilation of individual insurer submissions of information to the WCIRB. While the individual insurer data submissions are regularly checked for consistency and comparability with other data submitted by the insurer as well as with data submitted by other insurers, the WCIRB can make no warranty with respect to the information provided by third parties.

Factoring Decline in Life Expectancy When Reserving Lifetime Awards

Reserving is one of the most important aspects of claim handling. Whether it is a normal run of the mill lost time claim, or a claim with benefits payable over the remaining life of the insured worker, the goal is always the same: To accurately place the proper amount of money or reserves in the claim for the duration of the claim.

The claims examiner will typically take the periodic rate of benefits and the estimate of ongoing medical expense, and then compute the yearly estimated cost, and then multiply that by the number of years of anticipated remaining lifespan this worker is expected to have.

Life expectancy has increased in the U.S. for many decades, resulting in a lifetime reserve estimate increasing over time. A few years ago, this trend reversed, with data showing life expectancy in the U.S. was declining.

And now two annual reports released Thursday by the Center for Disease Control shows U.S. life expectancy is at a two-decade low and drug overdoses have risen five times in the last 20 years.

The drop was primarily due to increases in COVID-19 and drug overdose deaths. The data are featured in two new reports from CDC’s National Center for Health Statistics (NCHS).

The first report is “Mortality in the United States: 2021” which features the public release of final mortality data for 2021, and the report documents that there were 3,464,231 total deaths in the United States during 2021 – 80,502 more than the total reported in 2020.

The death rate for the entire U.S. population increased by 5.3% from 835.4 deaths per 100,000 population in 2020 to 879.7 in 2021. As a result, life expectancy at birth for the U.S. population decreased from 77 years in 2020 to 76.4 years in 2021.

The 10 leading causes of death in 2021 were largely unchanged from 2020, except chronic liver disease and cirrhosis became the 9th leading cause of death in 2021 while influenza and pneumonia dropped from the list of 10 leading causes. Heart disease remained the leading cause of death in the United States, followed by cancer and COVID-19.

Males’ life expectancy decreased slightly more than females by a difference of 5.8 years. Non-Hispanic American Indian or Alaska Native (AIAN) females had the highest death rate increase at 7.3%, with non-Hispanic white males coming in second at 7.2%, with AIAN males and black men still ranking at the top for overall deaths in 2021.

A second report, “Drug Overdose Deaths in the United States, 2001-2021,” showed that overdose deaths, which account for more than a third of all accidental deaths in the United States, have risen five-fold over the past two decades.

The official number of drug overdose deaths among residents in the United States for 2021 was 106,699, nearly 16% higher than the 91,799 deaths in 2020.

The CDC’s second report showed an increase in drug overdoses in all age categories of adults 25 and over between 2020 and 2021. Adults aged 34-44 had the highest rates at 53.9 per 100,000 but the 65 and over category saw the largest overall increase from 2020 to 2021 by 28%.

The rate of drug overdose deaths involving synthetic opioids other than methadone (drugs such as fentanyl, fentanyl analogs, and tramadol) increased 22% from 17.8 in 2020 to 21.8 in 2021.

From 2020 to 2021, the rate of drug overdose deaths involving cocaine increased 22% (from 6.0 to 7.3) and the rate for deaths involving psychostimulants with abuse potential (drugs such as methamphetamine) increased 33% (from 7.5 to 10.0).

The rate of drug overdose deaths involving heroin decreased 32% from 4.1 in 2020 to 2.8 in 2021.

Hospital Size and Teaching Status Produce Better Orthopedic Outcomes

In end-stage ankle arthritis, joint cartilage has worn away and pain occurs as bone rubs against bone. Although less common than arthritis of the hip or knee, the pain and disability of end-stage ankle arthritis affect patients as much as severely disabling physical conditions such as end-stage hip arthritis, end-stage kidney disease, and congestive heart failure.

End-stage arthritis of the ankle joint affects more than 50,000 people in the US. In up to 80% of cases, the condition is posttraumatic,with the 3 most common traumatic causes being rotational ankle fractures (37%), recurrent ankle instability (15%), and single sprain with continued pain (14%).

When conservative treatments do not provide enough relief, surgical options should be considered. Ankle replacement, or ankle arthroplasty, is a surgical procedure to replace the damaged articular surfaces of the human ankle joint with prosthetic components.

This procedure is becoming the treatment of choice for patients requiring arthroplasty, replacing the conventional use of arthrodesis, i.e. fusion of the bones. The restoration of range of motion is the key feature in favor of ankle replacement compared to arthrodesis.

The popularity and utilization of total ankle arthroplasty (TAA) as treatment for ankle arthritis has increased exponentially from 1998 to 2012.

Overall the outcomes have improved for TAA with the introduction of new-generation implants and this has increased the focus on optimizing other variables affecting outcomes for TAA. However, there is little data regarding other variables which affect TAA procedure outcomes

A new study was conducted in order to improve this current limited information, “The Impact of Hospital Size and Teaching Status on Outcomes Following Total Ankle Arthroplasty,” was published online in The Journal of Foot & Ankle Surgery last month. The purpose of this study was to examine the effects of hospital characteristics and teaching status on outcomes for total ankle arthroplasty (TAA).

The Nationwide Inpatient Sample (NIS) database was queried from 2002-2012 using the ICD-9 procedure code for TAA. A total weighted national estimate of 16,621 discharges for patients undergoing TAA was reported over the 10-year period.

The primary outcomes evaluated included: in-hospital mortality, length of stay, total hospital charges, discharge disposition, perioperative complications, and patient demographics.

Analyses were carried out based on hospital size: small, medium, and large; and teaching status: rural non-teaching, urban non-teaching, and urban teaching.

The analysis showed that the size of a hospital and teaching status produced better overall ankle arthroplasty patient outcomes. Rural, non-teaching hospitals had higher odds of perioperative complications. There were also significant differences in length of stay and total charges when comparing hospital sizes.

Overall, there is no increased risk of mortality after TAA regardless of hospital size or setting.

Vani J. Sabesan, M.D., FAAOS, FAOA, a shoulder and elbow/sports medicine specialist in Florida and his colleagues wrote in their study, “Our analyses demonstrated important factors affecting cost and resource utilization for total ankle arthroplasty, clearly additional work is needed to optimize this relationship, especially in the upcoming bundled payment.”

Fake Doctor Charged for 2nd Offense of Illegal Botox Injections

A Saratoga, California man has been charged with posing as a doctor to perform an unlicensed Botox injection on a woman, which comes on the heels of him avoiding a jail sentence after he was prosecuted for similar acts in Miami, according to authorities and court records.

The Mercury News reports that 37 year old Brody Amir Moazzeni faces one felony count of practicing medicine without certification. The case was filed in Santa Clara County, and he was arraigned December 14, and faces a maximum sentence of a year in county jail if convicted on the charge.

Deputy District Attorney Ann Huntley said the charge is based on an allegation by a 26-year-old Stockton woman who met Moazzeni – who in the South Bay criminal complaint has listed aliases of Amir Moazzeni and Gianni Muzzati – through the Bumble dating app.

According to the investigation, the woman said she knew the defendant as Gianni Muzzati, and that he told her he was a doctor opening his own cosmetic clinic. The two began a romantic relationship, and on Sept. 25, 2021, they met at a Sunnyvale hotel where Moazzeni allegedly offered to give her free Botox injections in her face and other injections in her torso.

Huntley said that a few weeks later, the woman noticed her right eyelid was drooping and saw an ophthalmologist who told her her procedure was not done properly. After she got her eyelid treated, Moazzeni continued to pressure her into letting him do more cosmetic work, leading her to question his qualifications.

He was implicated in a similar case in March 2021 when he was charged with practicing unlicensed medicine and sexual battery involving a woman in Miami Beach, Florida, according to court records there.

Court records show that Miami-Dade prosecutors initially filed at least seven felony and misdemeanor charges against Moazzeni, but ultimately pursued two felony counts and one misdemeanor count, all involving the unlicensed medicine accusations. Those same records show that Moazzeni was allowed to participate in a pretrial diversion program to avoid a potential conviction and jail time, and that his charges were dropped Sept. 23 after he completed the program.

That was two days before the reported Botox encounter in Sunnyvale that led to his criminal charge in Santa Clara County. The new alleged offense has no consequence for his case in Florida since it was dismissed, according to the Miami-Dade State Attorney’s Office.

Still, that overlap has Huntley and investigators concerned there could be other women who received unlicensed cosmetic work from Moazenni and suffered health problems as a result.

“Given the sensitive nature of how he manipulates women,” Huntley said, “these women might feel used and bamboozled because of the way they were taken advantage of.”

To this point, Huntley said, there is no evidence that the defendant ever asked for payment for the procedures.

Moazzeni is currently out of jail custody and is scheduled to return to court Feb. 28. Anyone with information about the case, or other people who might have received unlicensed medial procedures from the defendant, can contact Santa Clara County DA Investigator Krissi Durant at 408-792-2567.

WCAB Orders Attorney to Identify Name of Employer per Rule 10390(a)

Thomas David Williams suffered an industrial injury while employed by Mac Kenzie Electric Inc., who was insured by the State Compensation Insurance Fund. In addition to insured benefits paid by SCIF, Williams pursued a Serious and Willful Misconduct claim against the employer.

On August 2, 2021, the WCJ found in relevant part that defendant “MACKENZIE ELECTRICAL INC.” is guilty of Serious and willful Misconduct thereby entitling Williams to an increase in compensation and attorneys’ fees of 15% thereon..

On reconsideration, Williams contends that the award should have specified the dollar amount of $537,449.36 pursuant to the parties’ previous stipulations. Subsequently, Williams filed an amended Petition, requesting that the award be issued against “Mac Kenzie Electric Inc.” rather than “MacKenzie Electric Inc.”

The employer contends that the WCJ failed to apply the appropriate legal standard for serious and willful misconduct; that applicant did not meet his burden to prove serious and willful misconduct by defendant; that the WCJ did not address all of the evidence in her decision.

The employer’s Petition for Reconsideration was denied, but the applicant’s was granted in the panel decision of Williams v Mac Kenzie Electric Inc – ADJ2167155 (December 2022).

This case involved the often overlooked requirement that litigants must set forth “the party’s full legal name” on the pleadings they file in cases before the WCAB.

In deciding this case, the panel pointed out that WCAB Rule 10390(a) (Cal. Code Regs., tit. 8, §10390(a)) requires that any party that appears or files a pleading before the WCAB shall set forth “the party’s full legal name on the record of proceedings, pleading, [or] document.”

Pursuant to AD Rule 10205.5 (Cal. Code Regs., tit. 8, § 10205.5), the Division of Workers’ Compensation (DWC) maintains the “official participant record” or official address record (OAR) for all cases, and all parties must ensure at all times that they are correctly identified on the OAR.

Here, based on the panel;s review of the record, it was not clear from the record whether defendant is “MacKenzie Electric, Inc.” or “Mac Kenzie Electric, Inc.”

The panel further stated that “This conflict is particularly underscored by the circumstances here where the individuals appear to use both last names interchangeably, and there is no doubt that this information is within defendant’s knowledge. Instead, as noted previously, defendant failed to respond to the WCJ’s recommendation to change its name, thereby causing further delays. Moreover, as explained above, it is defendant’s responsibility to communicate with DWC as required by AD Rule 10205.5 to correct any discrepancies in its name.

The employer’s Petition for Reconsideration is by “MacKenzie Electric, Inc.,” “insured by State Compensation Insurance Fund” and is filed by an attorney for defendant State Compensation Fund, Marjorie A. Marenus. Throughout the Petition, defendant consistently refers to itself as “MacKenzie Electric,” and attached to the Petition is a declaration signed under penalty of perjury by “Patrick MacKenzie” and a declaration signed under penalty of perjury by “Denis MacKenzie.”3

In Exhibit R, titled as “Bill of Sale of John Deere 310D Backhoe Loader to Ed Ernst,” the bill of sale is on letterhead titled “MacKenzie Electric, Inc.” with license # 664395, the seller is listed as “Patrick MacKenzie, President” and the transferor is listed as “Patrick MacKenzie.” Yet, the California State License Board lists “Mac Kenzie Electric Inc” for license # 664395 and “Denis Anthony Mac Kenzie” and “Patrick Christopher Mac Kenzie” as personnel associated with the license. (See Evid. Code, § 452(c) [allowing judicial notice of official acts by an executive department].)

We strongly emphasize that defendant must comply with its obligations under WCAB Rule 10390(a) and AD Rule 10205.5. More significantly, failure to provide the correct information may impede applicant’s ability to proceed against defendant under section 5806. Again, if defendant is uncooperative, the WCJ should consider whether sanctions are appropriate.”

We direct defendant’s attorney Marjorie A. Marenus and State Compensation Insurance Fund to immediately review the OAR and make any necessary changes, and to promptly notify the WCJ thereafter.

In the meantime, we will leave the award intact, but we will also defer the issue to the WCJ to determine whether the name of the defendant should be changed, and upon return, the WCJ can consider whether to hold an evidentiary hearing.

Labor Commissioner Collects $1.3M for Bakersfield Contractor Violations

The Labor Commissioner’s Office collected $1,331,682 in wages and penalties, resulting from a prevailing wage assessment against Bakersfield-based subcontractor Grant Construction, Inc.

The wages collected will compensate 27 workers for unpaid prevailing wages while working on a farmworker housing construction project in the City of Wasco in Kern County.

The public works investigation determined that wage theft had occurred in the form of kickbacks and non-reporting of all hours worked. It found that a Grant Construction crew leader would collect the paychecks of the 27 workers, sign and cash them, and then pay the workers significantly less than the amount listed on their checks.

“The law requires that workers on construction projects with $1,000 or more public funds must be paid no less than the prevailing wage,” said Labor Commissioner Lilia García-Brower. “These workers held Grant Construction accountable for cheating them out of their legal wages.”

The City of Wasco hired Wallace & Smith Contractors as the prime contractor to build a $42 million farmworker housing complex with 66 apartments. Wallace & Smith Contractors hired subcontractor Grant Construction, Inc., to bring in carpenters and siding workers for the job.

The Labor Commissioner’s Office opened its investigation in February 2019 after a complaint of public works violation was filed by a worker claiming underpayment of wages and non-payment of travel and subsistence. The worker stated he was paid in cash for work performed on the project.

The investigation also confirmed that Grant Construction, Inc. failed to report all the workers and hours worked on the Certified Payroll Reports (CPR) and falsified the CPRs, paychecks, and paystubs.

The Labor Commissioner’s Office cited Grant Construction, Inc., in June 2020, for underpayment of prevailing wages to 27 workers, civil penalties, and training funds. The company was not required to pay liquidated damages because it timely deposited the full assessment amount in August 2020. However, the company requested a review of the assessment, and the hearing was held in May 2021.

The Department of Industrial Relations Director issued a decision upholding the assessment in May 2022. A judgment was entered on the decision of the Director in August of 2022 for a total of $1,389,395, including interest.

The Department of Industrial Relations’ Division of Labor Standards Enforcement, also known as the California Labor Commissioner’s Office, combats wage theft and unfair competition by investigating allegations of illegal and unfair business practices.

All workers employed on public works projects must be paid the prevailing wage determined by the Director of the Department of Industrial Relations (DIR), according to the project’s type of work and location. Failure to comply with public works requirements can result in civil penalties, criminal prosecution, or both. Employees with questions about their rights may call the Labor Commissioner’s Office at 833-LCO-INFO (833-526-4636).

The Labor Commissioner’s Office launched the Reaching Every Californian interdisciplinary outreach campaign in 2020. The campaign amplifies basic protections and builds pathways to affected populations, so workers and employers understand legal protections, obligations, and the Labor Commissioner’s enforcement procedures. Californians can follow the Labor Commissioner on Facebook and Twitter.