Tag: 2022 News

Allen Levrault claimed to have incurred continuous trauma injuries while employed as a professional baseball player for various teams. His paying history within the CT period was stipulated to be the Milwaukee Brewers June 10, 1996 to February 1, 2002 – – Oakland Athletics February 1, 2002 to October 15, 2002 – – Miami Marlins December 12, 2002 to October 15, 2003  – – and the Seattle Mariners April 14, 2004 to May 18, 2004.  Levrault resolved his claim with the Brewers by way of Compromise and Release for the sum of $3,000.

The WCJ concluded that there was no subject-matter jurisdiction over the Seattle Mariners, and that applicant cannot recover against the Miami Marlins based upon the reciprocity provisions of former Labor Code section 3600.5(b).

Reconsideration was granted in the panel decision of Levrault v Mariners, Marlins et. al. (April 2022) ADJ8763377.

Applicant contends that the WCJ erred in finding reciprocity under section 3600.5(b), because Florida’s reciprocity statute was not in effect at the time of his employment with the Marlins, and also that the WCJ should have admitted medical records submitted after the Mandatory Settlement Conference.

Labor code 3600.5 limits the general principles of WCAB jurisdiction in specific circumstances. Because applicant’s claim was filed prior to September 15, 2013, the relevant subdivision here is former section 3600.5(b).

Because Florida passed its reciprocity statute in 2011, after applicant’s injurious exposure but prior to the filing of his California compensation claim, the parties’ disagreement focuses on whether former section 3600.5(b)’s reciprocity requirements must be satisfied at the time of the injurious exposure, or whether it is sufficient that reciprocity exists at the time a claim is filed.

Here, the plain language of former section 3600.5(b) requires that the conditions for application of the exemption – including the reciprocity provisions of subdivision (b)(1)(A) & (B) – apply “while such employee is temporarily within this state doing work for his or her employer[.]” (former § 3600.5(b)(1), emphasis added.)

Accordingly, the exemption is not applicable to applicant’s claim.This result is in accord with past panel decisions such as in Roberts v. Tampa Bay Lightning (2016) ADJ9065158, 2016 Cal. Wrk. Comp. P.D. LEXIS 404.

Turning to the jurisdiction issue, the WCJ made clear that even if subdivision (b) of section 3600.5 does not apply to applicant’s claim, she would have found the claim barred by Federal Insurance Co. v. Workers’ Comp. Appeals Bd. (Johnson) (2013) 221 Cal.App.4th 1116, because applicant’s employment with the Marlins did not constitute a significant connection or nexus with the State of California.

Here, applicant testified – and defendants do not contest – that he was regularly employed in California during 1998 and 2002 while playing for the Ports and the River Cats, minor league affiliates of the Brewers and the Athletics respectively.

This constitutes a sufficient relationship between applicant’s injuries and the State of California to satisfy the Johnson due process requirement of a significant nexus between applicant’s injuries and this state.

Turning to the issue of the admissibility of post MSC medical reports. the WCJ, the most important reason she decided to find these reports inadmissible was a belief that applicant’s attorney had misled the court about applicant’s ability to appear for the original July 2017 trial date; the WCJ continued the matter as a result of representations from applicant’s attorney that applicant could not travel to California for trial because of his recent surgery, but applicant did in fact travel to California during that very period to obtain the post-surgery QME reports in question.

In resolving this issue the panel stated “Although we sympathize with the WCJ’s frustration at what appears to have been at the very minimum extremely questionable representations from applicant’s counsel, we disagree that the remedy here was to refuse to admit medical evidence that appears undoubtedly relevant to assessing applicant’s level of disability. If the WCJ believed that applicant’s attorney had misled the court in order to obtain a continuance of the trial under false pretenses, the remedy for that was sanctions against applicant’s attorney, pursuant to section 5813.”

As gamemaker Activision Blizzard is embroiled in controversy and legal backlash, the situation surrounding one of the industry’s biggest companies continues to unfold.

The company is currently in the middle of a discrimination lawsuit filed by the state of California, and that case has now taken an unexpected turn. A lawyer for the state of California has announced that she is resigning from her position, citing interference from governor Gavin Newsom as the reason.

The story in the Wall Street Journal claims Newsom’s office fired a lawyer involved in the workplace-misconduct lawsuit against videogame company Activision Blizzard Inc., prompting a second attorney to quit in protest, according to a lawyer representing both attorneys.

The California Department of Fair Employment and Housing Chief Counsel Janette Wipper was told by Mr. Newsom’s office on March 29 that she was being fired, according to a statement from Alexis Ronickher, Ms. Wipper’s attorney. Ms. Wipper’s last day at the department was Wednesday and she is evaluating her legal avenues, including a claim under the California Whistleblower Protection Act, the statement said.

Bloomberg reported Melanie Proctor, assistant chief counsel with California’s Department of Fair Employment and Housing, told staff in a Tuesday email she was resigning in protest over the firing of Janette Wipper, the department’s chief counsel who worked on the Activision lawsuit. Proctor also said Newsom’s office asked for “advance notice” on elements of the litigation.

“As we continued to win in state court, this interference increased, mimicking the interests of Activision’s counsel,” the email said, according to Bloomberg.

Newsom’s spokeswoman Erin Mellon said claims of interference by the governor’s office “are categorically false.”  No other details about Newsom’s alleged interference have been made public. Activision spokesman Rich George did not immediately respond to an email Thursday.

However in a related story, Politico reports that a board member for Activision donated $100,000 to a campaign to stop the 2021 recall of Gov. Gavin Newsom, according to state records

Casey Wasserman, CEO of the Wasserman Media Group, is a director at Activision Blizzard, according to the company’s website, and sits on the board of directors and the board’s nominating and corporate governance committee. Just weeks after the California DFEH filed the July suit against the company, alleging rampant sexual harassment and discrimination against women, Wasserman donated $100,000 to the Stop the Republican Recall of Governor Newsom campaign, according to campaign finance records.

The Activision suit – filed in July 2021 in Los Angeles – comes after two years of investigation conducted by the DFEH. It accuses the “Call of Duty” maker of fostering a “pervasive frat boy” culture where women are paid less for the same jobs that men perform, regularly face sexual harassment, and are targeted for reporting issues. In particular, the suit claims that female employees face “constant sexual harassment,” from “having to continually fend off unwanted sexual comments” to “being groped.” When employees report issues to human resources and management, the suit says, no action is taken.

Activision has refuted many of the suit’s claims and said it has cooperated with the DFEH’s investigation.

Within a couple months of the California agency filing its original suit, the US Equal Employment Opportunity Commission filed its own lawsuit against Activision Blizzard, and agreed to settle it the same day. In March, the company agreed to an $18 million settlement with the federal Equal Employment Opportunity Commission over similar harassment and discrimination allegations.

The DFEH objected to the settlement and its small $18 million fund set up for “eligible claimants.” Among the reasons for the objection were that the settlement involved anyone receiving a portion of that $18 million to sign a waiver giving up their right to collect any other restitution over wrongdoings by Activision.

The DFEH also objected to the settlement arguing that it essentially ordered tampering of evidence relevant to its own case. The original proposed settlement required Activision Blizzard to “remove from the personnel files of each Eligible Claimant any references to the allegations related to sexual harassment, pregnancy discrimination, and/or related retaliation” and reclassify the terminations of anyone fired in retaliation as voluntary resignations.

In return, the federal EEOC accused the state agency of ethics violations because two of the DFEH attorneys looking to give Activision Blizzard more than a slap on the wrist previously had senior roles in the EEOC and led the investigation that resulted in its own lawsuit.

In January 2022, Microsoft announced intentions to buy Activision for an estimated $68.7 billion in an all-cash deal. The Seattle computing giant is expected to inherit the DFEH lawsuit should the deal pass regulation and close later this year.

The Legislature passed a law, which became effective on January 1, 2022, requiring the California State Auditor’s Office to conduct an audit of the State Bar’s attorney complaint and discipline process. The Legislature included this requirement in the law because the State Bar did not take action against Los Angeles lawyer Tomas Girardi, husband of “Real Housewives of Beverly Hills” star Erika Jayne, for misconduct until recently, despite repeated allegations of this attorney’s misconduct over decades.

The prequel to the State Auditor’s report that was just published, was a Los Angeles Times investigation that documented how the now-disgraced attorney Tom Girardi cultivated close relationships with the agency and kept an unblemished law license despite over 100 lawsuits against him or his firm – with many alleging misappropriation of client money. Along with his family and employees, Girardi contributed more than $7.3 million to political candidates.

In months of interviews and reviews of documents, the Times found that Girardi cultivated close relationships with bar officials that at times appeared improper. Agency staffers received annual invitations to a Las Vegas legal conference, where Girardi hosted over-the-top parties at the Wynn casino featuring Jay Leno and other celebrity entertainers.

While under investigation for misconduct in 2010, Girardi bankrolled a lavish retirement bash for the chief justice of the state Supreme Court, which oversees the bar, even booking crooner Paul Anka to perform, according to news reports, court records and interviews with attendees.

He forged a particularly tight relationship with a bar investigator named Tom Layton. Over the decade and a half Layton worked at the bar, Girardi routinely treated him to pricey meals at the Jonathan Club, Morton’s and the Palm, according to Layton’s sworn testimony. The investigator rode on Girardi’s private jet and two of his children got jobs at Girardi Keese, according to the testimony and an online resume.

Another prequel was the audit by the State Bar of the Girardi situation, which it announced in June 2021. The public outcry over Girardi’s long history of complaints prompted the State Bar to conduct its own special disciplinary audit.

The announcement admitted that “The audit, commissioned by Interim Chief Trial Counsel Melanie Lawrence, revealed mistakes made in some investigations over the many decades of Mr. Girardi’s career going back some 40 years and spanning the tenure of many Chief Trial Counsels. In particular, the audit identified significant issues regarding the Office of Chief Trial Counsel’s investigation and evaluation of high-dollar, high-volume trust accounts.

Nearly a year later, the California State Auditor in its April 14, 2022 report elaborates on the Girardi case, and embellishes the issue with many more examples that go beyond accusations against Girardi, to outline a broken disciplinary process.

Among the cases the auditor’s report highlighted is an attorney who accumulated 165 complaints from 2014 to 2021 and has never been disciplined. In another case, the state bar did not analyze the attorney’s bank records until the agency received more than 10 complaints in two years. Bank records then showed the attorney misappropriated $41,000 from several clients.

The state bar closed 87 complaints against an attorney later convicted in federal court for money laundering through client trust accounts, closing some of these cases through nonpublic measures. Others, called de minimis closings, were done without ever contacting attorney because the agency considered the amount of money involved relatively small.

The State Auditor said that “Our audit of the state bar found that it failed to effectively deter or prevent some attorneys from repeatedly violating professional standards,” said acting State Auditor Michael Tilden in the report. And that the “state bar is not appropriately assessing how conflicts of interest pose a risk that staff will close cases inappropriately.”

And the written response by the Bar to the State Auditor’s report does not dispute the troubling findings. It said “Given the Board’s intense focus on the discipline system, and our understanding of the gravity of the deficiencies that the Girardi matter laid bare, some of the findings in your recent report are profoundly eye-opening and troubling.“

The chair of the State Bar’s board of trustees, Ruben Duran, said in an interview that he was troubled by the audit’s findings, calling its conclusions “some of the hardest-hitting discoveries” that the State Auditor has ever made about the agency.

Assemblymember Mark Stone (D-Scotts Valley), who is chair of the Assembly’s Judiciary Committee, said the audit was “profoundly eye-opening.”

In reviewing the Auditor’s report, the Los Angeles Times said that Girardi was once a top plaintiffs’ attorney and Democratic powerbroker. His downfall in December 2020 was in part triggered by a judge finding that he had misappropriated millions from families of those killed in an Indonesian plane crash. But after the collapse of his Wilshire Boulevard law firm, scores of clients came forward saying they were swindled by Girardi and The Times documented a trail of misconduct allegations going back decades.

Earlier this month, a Chicago law firm accused Girardi and other lawyers at his defunct firm of running “the largest criminal racketeering enterprise in the history of plaintiffs’ law,” pocketing millions from clients, vendors and fellow attorneys.

Robert Reagan, III died on July 26, 2016, while operating Ian Czirban’s bulldozer at the Soberanes wildfire in Monterey County. Reagan was ejected from the bulldozer and crushed to death by it.

Shortly after Reagan’s death, Morgan K., Reagan’s partner and the mother of their two children, discovered that Czirban did not have workers’ compensation insurance.

Attorney Thomas Tusan filed claims with the Uninsured Employers’ Benefits Trust Fund for death benefits. The case resulted in a Compromise and Release Agreement $310,218.80 for death benefits and funeral expenses, less $47,557.43 in professional fees and cost reimbursement to Mr. Tusan.

The trial court in the related criminal action convicted Czirban of a number of crimes including misdemeanor failure to secure payment of workers’ compensation insurance. Czirban was placed on felony probation for three years, and the issue of victim restitution was reserved.

Czirban appealed the judgment of conviction, which was affirmed in the published case of People v Czirban (Czirban I, – 2021) 67 Cal.App.5th 1073 .

While that appeal was pending, the trial court ordered Czirban to pay, as a condition of his probation, victim restitution in the amount of $70,667.56 to Morgan K..

The Court of Appeal reversed the award of $22,485 in interest in the new unpublished case of People v Czirban CA6 H048989 ( Czirban II – April 2022).

Czirban contends on his second appeal that (1) the trial court abused its discretion by ordering him to pay attorney fees because the Labor Code explicitly prohibits the payment of attorney fees out of a survivors’ benefit; (2) the order for payment of attorney fees as a condition of probation is unreasonable, irrationally calculated, and based on an erroneous legal standard; and (3) the trial court abused its discretion when determining the interest award. The Court of Appeal found no merit to issues 1 and 2.

In its restitution order, the trial court ordered Czirban to pay Morgan $22,485.13 in interest. The trial court calculated that figure based on $46,352 in attorney fees, $1,205.43 in costs, and $625 in unpaid wages that Czirban had promised to Reagan.

Because the earliest date Morgan could have incurred an economic loss for either the fees or costs was 2020 (not at the time of Reagan’s death), the trial court committed an error of law when it aggregated the unpaid wages, attorney fees, and costs and calculated interest using a loss date of Reagan’s death for all three categories.

The trial court did not err in setting the loss date for the unpaid wages as the date of Reagan’s death.

Under the authority of the Affordable Care Act (ACA), a federal hospital price transparency rule took effect January 1, 2021, requiring hospitals to post all prices online, easily accessible without barriers such as having to submit personal identifying information.

In July 2021, the PatientRightsAdvocate.org research team conducted its first review of hospital compliance and found widespread failure of hospitals to fully publish their prices across all payers and plans. It estimated that only 5.6% of the 500 random hospitals reviewed were compliant with the rule.

January 1, 2022 began the second year of the legal requirements for hospitals to post all prices online. This 2022 report assessed the compliance with the law by reviewing 1,000 U.S. hospitals out of the over 6,000 accredited hospitals in the country, including the original 500 hospitals it previously reviewed.

A team of four PatientRightsAdvocate.org research analysts assessed the websites for hospital compliance. Separately, an independent review and validation of the report using a substantial sample of the data were performed from January 19 to 28, 2022 for PatientRightsAdvocate.org by FireLight Health LLC, an independent healthcare price data company with expertise in hospital price transparency data.

Of the 1,000 total hospitals reviewed, it found:

– – Only 14.3% were complying with the transparency rule.
– – Only 37.9% of the hospitals posted a sufficient amount of negotiated rates, but over half were not compliant in other criteria of the rule, such as rates by each insurer and named plan.
– – Only 0.5% of hospitals owned by the three largest hospital systems in the country – HCA Healthcare, CommonSpirit Health, and Ascension – were in compliance.

Notably, only two of the 361 hospitals owned by these three hospital systems were compliant with the rule. Strikingly, for HCA Healthcare, the largest for-profit hospital system in the country, none of its 188 hospitals (0/188) were in compliance. In 2021, these three large noncompliant hospital systems’ combined total revenue approached $120 billion. The cost of compliance calculated in the rule is only $12,000 per hospital.

The most prevalent omission deeming noncompliance was non-posting or incomplete posting of all of the negotiated prices for each item and service clearly associated with all of the payers and plans accepted by the hospital.

Based on this review, it estimated that only 14.3% of the 1,000 hospitals (143/1,000), were in compliance with all of the price transparency rule requirements. It estimated that 85.7% (857/1,000) were noncompliant, because one or more price transparency requirements were not met. The largest hospital systems are effectively ignoring the law, with no consequences.