Tag: 2022 News

The plaintiff in the case, Affiliated Temporary Help, is an employment agency, providing temporary staffing services and handling payroll, workers’ compensation and human resource services for the temporary employees it places.

The defendants include Infiniti HR, LLC a professional employer organization (PEO), a full-service human resources firm that assists businesses on an outsourced basis. CTK North American, LLC, doing business as CTK North American Insurance Services, a licensed insurance broker. HR Map LLC an administrator of PEO services and worked in that capacity for Affiliated.

In February 2015 Affiliated entered into a one-year contract with Infiniti HR to provide PEO services, including payroll, human resources, benefits administration and workers’ compensation services. Affiliated also elected to be covered under Infiniti HR’s workers’ compensation policy.

New management discovered that Infiniti HR had “deceptively” switched Affiliated from a no-deductible workers’ compensation policy to one with a $200,000 deductible, which, Affiliated alleged, effectively meant Affiliated was paying Infiniti HR to self-insure. Affiliated terminated the contract in writing in January 2020 after this discovery.

Affiliated sued CTK, and HR Map,, among other parties, for violation of California’s unfair competition law (UCL) (Bus. & Prof. Code, § 17200et seq.) and financial elder abuse in violation of the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act or Act) (Welf. & Inst. Code, § 15600 et seq.).

The trial court dismissed CTK and HR Map after sustaining their demurrers to the complaint without leave to amend. On appeal Affiliated contends it pleaded facts sufficient to constitute causes of action against CTK and HR Map and, at the very least, the court erred in denying leave to amend the complaint.

The Court of Appeal affirmed the trial court in the unpublished case of Affiliated Temporary Help v. CTK North American – B308558 (August 2022).

Under certain defined circumstances, the Elder Abuse Act covers the deprivation of property not held directly by an elder or dependent adult, the Act’s scope is not nearly as broad as Affiliated contends. It cannot be read to cover the facts of this case, and in any event Affiliated is not a protected party that can recover under the provisions of this Act.

Unfair Competition Law prohibits, and provides civil remedies for, unfair competition, which it defines as “any unlawful, unfair or fraudulent business act or practice.”

Affiliated contends that unlicensed insurance sales (Insurance Code section 1631) can serve as the basis for a UCL claim.

Section 1633 makes unlicensed insurance sales a misdemeanor. Although Affiliated’s UCL cause of action alleged CTK violated those provisions, it failed to plead sufficient facts to support that conclusory claim.

“As Affiliated acknowledged in its complaint, CTK is a licensed insurance broker. Even accepting as true the allegation that CTK somehow induced Affiliated to hire Infiniti HR without disclosing that Infiniti HR was not licensed, if that was transacting insurance business, CTK was licensed to do so.”

Moreover, Affiliated failed to allege any factual basis for its assertion that CTK had a duty to disclose the license status of Infiniti HR.

68 year old Joe Capurro, who lives in San Jose, has been appointed to the Workers’ Compensation Appeals Board.

He graduated from California State University, Hayward, in 1977 with a BA in Political Science. He earned a Juris Doctor degree from the Santa Clara University School of Law and has been a certified specialist in the field of Workers Compensation for over 20 years.

He has practiced in the field of Workers Compensation Law since he was admitted to the California Bar in 1980. He is a sole practitioner at The Law Office of Joseph V. Capurro in San Jose, CA, and has represented injured workers before the Workers Compensation Appeals Board, various California Courts of Appeal, and the California Supreme Court.

He was an Attorney and Managing Partner at Capurro, Rocha & Schmidt from 1980 to 2012.

He is an active member of the California Applicants Attorneys Association and has served as a member of the Board of Directors. He currently serves on several committees of the organization and is Co-Chair of the Amicus Curiae Committee.

He is a frequent lecturer on matters involving Workers Compensation, particularly on the topic of recent case law developments.

Additional memberships include the Santa Clara County Bar Association, the Bar Association of San Francisco, the Workers Injury Law & Advocacy Group, and the American Association for Justice.

In a notable published court of appeal decision, he appeared for California Applicants’ Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent. in the case of Joe Notrica v SCIF, 83 Cal.Rptr.2d 89 (1999) 70 Cal.App.4th 911 (March 1999).

Joe Notrica, doing business as Notrica’s 32nd Street Market, sued his workers’ compensation insurer, State Compensation Insurance Fund to recover in tort and for unfair business practices, based on allegations relating to SCIF’s case reserve and claims handling policies and practices.

In a bifurcated proceeding, the jury awarded Notrica $478,606 in compensatory damages and $20 million in punitive damages; the trial court enjoined SCIF from various business practices and awarded $333,319.65 in attorneys’ fees.

SCIF appealed, and the court of appeal concluded that the punitive damages award must be reduced to $5 million and otherwise affirmed the trial court.

And the Internet Movie Database credits Joe Capurro for appearing in the 2017 documentary “Workers Con” which was written and directed by Julia Davis.  The documentary claimed that “Workers Compensation, is the Worker’s Con, a process flawed, buried in bureaucracy, adding insult to injury.”

This position requires Senate confirmation and the compensation is $170,463.

Christopher Johnson a truck driver for Lexmar Distribution dba LDI Trucking Inc. is a driver for the defendant making runs from California to Arizona. On one of his trips he was stopped for an illegal U-turn by the Arizona State Police.

Video footage taken from inside the cab of the truck. showed Johnson arguing with the officers, refusing to identify himself, provide his driver’s license, registration or insurance cards. He was argumentative with the officers and refused to comply with any of their instructions or orders. He was forcibly removed from the cab of the semi-truck and pulled to the ground which caused him injury for which he filed this claim.

He was arrested and taken to jail on 1/3/21 for 5 misdemeanor infractions. He pled out on two of the five charges pending against him, Count 1 Ariz. Statute 28-622A a misdemeanor 2nd degree and Count 2, 281595B, Failure to Show Driver License or Identification Misdemeanor 2nd degree.

Following a trial and submission, the WCJ found that Johnson did in fact sustain an injury during this physical altercation with the Arizona Police. The WCJ then considered two affirmative defenses raised by the employer.

The WCJ did not find the initial aggressor defense under §3600(a)(7) as the applicant never made any overt moves or threatening gestures to the officers to warrant this finding.

However, the WCJ found and granted a Labor Code §3600(a)(8)1 defense based upon on the altercation that occurred and Johnson’s pleading guilty to two misdemeanor charges. Johnson’s Petition for Reconsideration of this finding was denied in the panel decision of Johnson v Lexmar Distribution dba LDI Trucking Inc .- ADJ14203968 (July, 2022).

On reconsideration, Johnson argues that Labor Code §3600(a)(8) requires that he be convicted of a felony, and that since he was convicted of misdemeanors, the defense does not bar his benefits.

This provision of the Labor Code provides that benefits are to be paid “(8) Where the injury is not caused by the commission of a felony, or a crime which is punishable as specified in subdivision (b) of Section 17 of the Penal Code , by the injured employee, for which he or she has been convicted.”

Penal Code, section 17(b), provides: “(b) When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances . .”

The injury occurred during the commission of these crimes. Had Johnson cooperated with the officers he might have received a ticket or a warning, but do to his resistance and refusal to cooperate and exit his vehicle he was forcefully removed and taken to jail and charges with five misdemeanors.

The applicant pled guilty to two misdemeanors in Arizona, both of which were classified as misdemeanors carrying the potential of jail time and fines.

“Applicant fails to consider that he pled guilty to a crime that was punishable by a “fine or imprisonment in the county jail” as specified in Penal Code, section 17(b). Accordingly, section 3600(a)(8) applies and applicant’s rights to workers’ compensation is barred.”

When his medical malpractice trial concluded in April, Dr. Essam Quraishi left an Orange County civil courtroom in victory. Swiftly and unanimously, 12 jurors had decided that the gastroenterologist had not been responsible for the death of a patient.

However, according to a report on Yahoo News, that was before his lawyer, Robert McKenna III, appeared in an online celebration video, bragging of his work and saying the case involved “a guy that was probably negligently killed, but we kind of made it look like other people did it.

Citing McKenna’s remarks, the judge who presided over the trial has vacated the verdict, ordering the case back to court. “I think I have to protect the system and say plaintiffs deserve a new trial,” Orange County Superior Court Judge James Crandall said at an Aug. 4 hearing.

The case involves Enrique Garcia Sanchez, 49, a forklift operator who was admitted to South Coast Global Medical Center in Santa Ana in November 2017. He had severe abdominal pain from alcohol-related pancreatitis.

Quraishi inserted a feeding tube that accidentally pierced Sanchez’s colon and led to a fatal infection, according to the lawsuit filed by Sanchez’s family. Central to the family’s case was the death certificate, which blamed the death on sepsis and peritonitis due to a tube-perforated colon.

Sanchez’s family asked for $10 million. In the gastroenterologist’s defense, McKenna pointed to errors by other hospital staff and argued that Sanchez died from other causes. He told jurors to disregard the death certificate, derided the “personal-injury industrial complex,” and claimed the suit was a form of “extortion.”

Shortly after winning the case, McKenna gathered with colleagues at an office celebration and invited a legal partner to ring a victory bell. A video of McKenna’s boastful comments was posted to his firm’s social media page, but quickly removed amid backlash in online legal forums.

McKenna apologized for what he called his “imprecise” remarks, and said they were “intended purely as an internal briefing to our staff” that he did not know would be posted.

In a hearing to decide whether a new trial was warranted, Judge Crandall said he found the celebration video “extremely important.”

“When he says on video a ‘guy was probably negligently killed,’ probably is more likely than not. Then he goes on to say, ‘But we kind of made it look like other people did it,'” the judge said. “That seems like an admission of negligence. Seems like an admission the plaintiff should have prevailed.”

Jorge Ledezma, the attorney for the Sanchez family, said McKenna had improperly pointed the finger at other medical personnel as culpable in Sanchez’s death, contrary to an agreement not to do so, and later bragged about it on tape.

“Well, bragging isn’t a great irregularity,” Judge Crandall said. “He’s a lawyer. But here’s the problem: bragging that justice wasn’t done, that’s what bothers the court.”

In ruling that the plaintiffs deserve a new trial, the judge also pointed to a three-week break he allowed midtrial that might have affected jurors’ recall of information. In addition, he said the jury foreman had failed, during jury selection, to mention that he had spent two years as an insurance agent, which in itself might have been enough to warrant a new trial.

The judge said McKenna was “an excellent lawyer” with a reputation for “honesty and integrity,” adding: “But good men make mistakes. The pope goes to confession.”

McKenna, a Huntington Beach attorney and a founding partner at Kjar, McKenna & Stockalper, a prominent firm, did not respond to requests for comment.

Beverly Hills anesthesiologist Randy Rosen MD has been accused of insurance fraud in several criminal and civil proceedings over the last several years. The accusations included involvement with the California workers’ compensation system and later schemes targeting sober living homes. He has now entered a guilty plea in Orange County Superior Court along with his co-defendant Liza Vismanos the owner of the Wellness Wave surgical center in Beverly Hills and the Lotus Labs medical laboratory in Los Alamitos.

The Orange County District Attorney filed criminal charges against him (Case 16CF1363) on May 20, 2016, alleging that he “entered into an agreement with Kareem Ahmed and his companies: Physicians’ Funding Solutions, LLC, Med-Rx and Healthcare Finance Management to distribute transdermal compound creams which were manufactured by Curt’s Compounding Pharmacy in Orange County to workers compensation patients treated by Dr. Rosen.” And that he received “kickbacks” under the guise of selling accounts receivables.

As part of the Workers’ Compensation scheme, Dr. Rosen was charged with twenty-four counts of Withholding Material Facts on Insurance Claims and seventeen counts of Creating Documents for Purposes of Submitting False or Fraudulent Insurance Claims. Vismanos was charged with twenty-four counts of Withholding Material Facts on Insurance Claims. The couple was also charged with the aggravated white collar crime enhancement for losses exceeding $100,000 and $500,000. Dr. Rosen is charged with a crime-bail-crime enhancement pursuant to Penal Code Section 12022.1(b) for committing additional crimes while released on bail on his previous and still active insurance fraud case in People v. Randy Scott Rosen (Case No. 16CF1363).

And in Orange County criminal case 20CF1682, he and his co-defendant Liza Vismanos were arrested June 30, 2020 by the Orange County District Attorney’s on a combined 144 counts including money laundering, submitting fraudulent insurance claims and withholding material facts on insurance claims.

According to court documents related to his bail motion, “In approximately June 2017, Rosen/Vismanos entered into a fraud scheme specifically targeting patients from addiction recovery rehabs to bill their private medical insurance carriers primarily for two types of procedures; a non-FDA approved Naltrexone implant and Cortisone injections,”

“Per Rosen’s records he performed these procedures in as little as one-minute increments with as many as 72 procedures per day. Additionally, Rosen collected blood and urine from his patients, which was processed at Lotus Labs at a cost of approximately $4,000 per day after the procedure with no known medical necessity.” Investigators alleged 18 insurance companies were billed from June 2017 to May 2019 $661,940,464 and the two received $51,060,523.

The two were also accused of using two “body-broker” groups that would “sell Rosen patients in exchange for a kickback of the insurance proceeds.” The “marketers” would – often pay the patients (oftentimes $500 to $2,000 per procedure) to incentivize them into returning to Rosen for multiple procedures,” the bail motion alleges.

Rosen, was also involved in a civil federal lawsuit ( 8:13-cv-00956-AG-CW) filed by the State Compensation Insurance Fund involving a workers’ compensation fraud scheme at the infamous Pacific Hospital of Long Beach. State Fund’s proposed Third Amended Complaint asserted claims directly against, Dr. Faustino Bernadett, Jeffrey Catanzarite, Dr. Gerald Alexander, Dr. Jack Akmakjian, Dr. Ian Armstrong, Michael Barri, Dr. Mitchell Cohen, Alan Ivar, Edward Komberg, Dr. Randy Rosen, Dr. Lokesh Tantuwaya, Dr. Jacob Tauber, Dr. Assad Moheimani, and Jason Bernard, as well as entities associated with these individuals.

If one were to write a treatise on methods to perpetrate medical fraud, the 221 page Complaint filed by SCIF would be a good guide. Topics include “Lack of Licenses, Corporate Practice of Medicine, and Payment of Illegal Referral Fees” on the part of the Administrative Defendants, Individual Defendants and Provider Defendants, “Overbilling and Pricing Manipulation” on the part of the Pharmacy Defendants and some Provider Defendants, “Billing State Fund for Treatments and Services That Were the Product of Illegal Kickbacks and Referral Fees, Fraudulent Scheme to Overbill Services By Unbundling/Upcoding, Including Unbundling and Overbilling, Fraudulent Scheme re: Nurse Billing; Autologous Transfusion Billing; Duplicate Radiology Billing, Double-Billing of Prescriptions”, and more.

According to the federal docket in the SCIF civil case, SCIF and Rosen reported a settlement of the case between them in July 2016. The terms of the settlement were not disclosed.

And the Orange County District attorney just announced this month that Rosen pleaded guilty to several counts of submitting fraudulent insurance claims with an aggravated white collar crime enhancement, while scores of other charges were dismissed. He faces 10 years behind bars, but will get credit for the two years he has already served as the cases progressed through the justice system.

Vismanos pleaded guilty on Friday to insurance fraud and had dozens of charges dismissed. She will face home confinement.

“This is the largest prison sentence for a provider in a California workers’ compensation insurance fraud,” said Orange County District Attorney Todd Spitzer in a prepared statement. “Dr. Rosen used vulnerable sober living patients who were desperately trying to battle their demons as an ATM machine to make a buck. He didn’t care about his patients; he only cared about making as much money as possible.”

Rosen’s California medical license is shown as currently “Renewed & Current.” However, as a result of the 2020 charges filed against him, he stipulated to an administrative order prohibiting him from practicing medicine until he criminal case was “fully and completely concluded.”