Tag: 2022 News

An Oxnard, California, political action committee and a Florida provider of canvassing services went before the Ninth Circuit Court of Appeals to argue that AB5, a California law that qualifies “doorknockers” and signature gatherers as employees rather than independent contractors violates their free speech rights.

Mobilize the Message and Starr Coalition for Moving Oxnard Forward filed a civil complain in federal court in Los Angeles last June. They alleged that Assembly Bill 5 violates the First Amendment right of free speech. AB 5 codifies the so-called “ABC Test” articulated in the 2018 Supreme Court Dynamex decision. The test consists of a three-pronged inquiry that determines whether a worker is classified as an employee or an independent contractor for certain purposes.

The plaintiffs argue that AB 5 favors commercial speech over political speech because it exempts certain commercial workers from being classified as employees, while classifying signature gatherers and doorknockers for political campaigns as employees. The Court denied a Motion for Preliminary Injunction on August 09, 2021.

In denying the bid for a preliminary injunction, Judge Phillips said they were unlikely to succeed on the merits of their lawsuit. The distinction between how the law treats a cosmetics salesperson and a campaign signature gatherers was based on the worker’s occupation..

“Plaintiffs’ argument that the content of what a worker says will determine whether an AB 5 exemption applies in this context lacks merit,” Phillips said. “The more sensible interpretation is that the distinctions hinge on the worker’s industry regardless of speech.”

The judge was also unconvinced by the harm claimed by Mobilized the Message of not being able to operate in California because of the state law, noting the company waited almost two years after the law was passed to sue.

Plaintiffs appealed the denial to the Ninth Circuit Court of Appeals on August 10, 2021. They say in the commentary on their website that “the passage of AB 5, which effectively bars campaigns from hiring canvassers as independent contractors, has forced the plaintiffs to cease their longstanding practice of hiring contractors to collect signatures for ballot petitions and engage California voters in discussion. The costs of hiring canvassers as employees, as required by California’s new law, makes them unaffordable to many campaigns.“

“The state has provided exemptions, however, allowing the hiring of independent contractors for virtually identical work in newspaper delivery and direct sales. The only distinguishing feature between these workers and those hired by the plaintiffs is the content of the speech they are paid to promote. Content-based regulations of speech are presumptively unconstitutional under the First Amendment. Moreover, the government cannot give preferential treatment to commercial speech over political or campaign speech.”

Oral argument was heard on the appeal on February 2nd in San Francisco. According to the report by Courthouse News, U.S. Circuit Judge Lawrence VanDyke, a Donald Trump appointee, expressed some sympathy with Mobilize the Message. Whereas the newspaper industry and the direct sales lobby may have been successful in getting exemptions from the California Legislature for their workers, it was unlikely that advocates of direct democracy would have been able to get such an exemption because, according to the judge, they are the biggest enemy of the Legislature.

“There’s no way they’re going to get an exemption,” VanDyke said.

U.S. Circuit Judge Andrew Hurwitz, a Barack Obama appointee, expressed skepticism that the distinction between commercial door-to-door salespeople and political canvassers under the law had to do with the nature of their speech. “It seems to me that it’s not about the content of your speech,” Hurwitz said to Mobilize the Message’s attorney Alan Gura. “It’s about the way you conduct your business.”

Mobilize the Message said it hires doorknockers and signature gatherers on an independent contractor basis and doesn’t pay hourly wages. Rather, doorknockers get paid for reaching milestones, according to the company. They can set their own hours, breaks and schedules, as long as they work during the times of day when people are most likely at home.

U.S. District Judge Joan Ericksen, sitting by designation from the District of Minnesota, rounded out the panel. The judges did not indicate how or when they would rule.

A former Rancho Mirage resident pleaded guilty to federal charges related to a scheme that fraudulently billed insurance companies tens of millions of dollars for cosmetic surgeries by falsely claiming the procedures were “medically necessary.”

Linda Morrow, 69, who has been in federal custody since July 2019, pleaded guilty to one count of conspiracy to commit health care fraud, admitting that she helped her husband run the fraudulent billing scheme out of The Morrow Institute (TMI) in Rancho Mirage.

Morrow also pleaded guilty to one count of contempt of court for fleeing the United States in 2017 after a federal grand jury indicted her for the health care fraud scheme. Morrow, and her husband, fled to Israel, which deported her in 2019 after U.S. authorities tracked her down and Israeli authorities determined she had entered that nation on a fraudulent Mexican passport.

Morrow also admitted in court that she fled the United States to avoid prosecution and failed to appear in court as ordered. In addition to helping move $4 million from domestic bank accounts to accounts in Israel, Morrow used a fraudulent Mexican passport to enter Israel and a fraudulent Guatemalan passport while living there. Morrow also admitted that while she was living as a fugitive, she applied for Israeli citizenship using a fraudulent identity.

Morrow pleaded guilty to the two felony offenses before United States District Judge Josephine L. Staton, who scheduled a sentencing hearing for July 1. At that time, Morrow will face a statutory maximum sentence of 20 years in federal prison.

Morrow’s husband, 77-year-old Dr. David M. Morrow, was extradited by Israel two years ago and is currently serving a 20-year prison sentence. David Morrow pleaded guilty in 2016 and was free on bond awaiting sentencing when the couple fled. Judge Staton imposed the 20-year sentence while the Morrows were living as fugitives, finding that the intended loss from the scheme was more than $44 million.

Linda Morrow, who was the “executive director” of TMI in Rancho Mirage, admitted in court that she participated in a scheme to defraud health insurance companies by submitting bills for procedures performed at the Morrow Medical Surgery Center that were billed as “medically necessary” – but in fact were cosmetic procedures such as “tummy tucks,” “nose jobs,” breast augmentations and vaginal rejuvenations. Morrow admitted that the scheme attempted to bilk insurance companies out of between $25 million and $65 million.

The victim insurance companies included Aetna, Anthem Blue Cross, Blue Shield of California and Cigna Health Insurance. The scheme also defrauded Staples, Inc. and a self-insured group of public entities that included school districts.

To pursue payment for some of the fraudulent surgeries when they were not paid, TMI filed claims of $10,931,237 against the Desert Sands Unified School District; $4,199,862 against the Palm Springs Unified School District; $1,341,519 against the City of Palm Springs; and $256,782 against the California Highway Patrol, according to court documents.

In April 2011, shortly after the FBI and California Department of Insurance executed a search warrant in the investigation, Morrow went to a former employee’s house to confront her on whether she had cooperated with law enforcement, according to the plea agreement.

To defraud the insurance companies into believing that the patients had undergone medically necessary procedures, the Morrows convinced patients to sign “testimonial” letters or declarations that had false statements, according to court documents. In her plea agreement, Morrow admitted that she coached employee patients to draft falsified testimonial letters and declarations.

The FBI, IRS Criminal Investigation and the California Department of Insurance conducted the investigation into the Morrows and TMI. The FBI’s Legal Attachés in Jerusalem, Mexico City, and Guatemala; the Israeli National Police; the United States Marshals Service; the United States Border Patrol’s Northern Border Coordination Center; and the Department of Justice’s Office of International Affairs provided considerable assistance in tracking down and capturing the Morrows.

California Attorney General Rob Bonta announced that over 90% of eligible California cities and counties have signed on to a historic $26 billion settlement with the nation’s three major pharmaceutical distributors – Cardinal, McKesson, and AmerisourceBergen – and Johnson & Johnson over the companies’ role in creating and fueling the nationwide opioid crisis.

Attorney General Bonta, along with the attorneys general of North Carolina, Tennessee, Colorado, Connecticut, Delaware, Florida, Georgia, Louisiana, Massachusetts, New York, Ohio, Pennsylvania, and Texas, led negotiations of the up to $26 billion settlement.

In California, over 400 cities and counties – representing 97% of the state’s population – have signed on to the settlement.

When finalized, the settlement will resolve the claims of both states and local governments across the country, including the nearly 4,000 that have filed lawsuits in federal and state courts. The settlement also requires significant industry changes that will help prevent this type of crisis from ever happening again.

The settlement comes as a result of investigations by state attorneys general into whether the three distributors fulfilled their legal duty to refuse to ship opioids to pharmacies that submitted suspicious drug orders and whether Johnson & Johnson misled patients and doctors about the addictive nature of opioid drugs.

Cardinal, McKesson, AmerisourceBergen, and Johnson & Johnson will have until February 25, 2022, to decide whether to move forward with the settlement. If all parties move forward, the first payments will be made by the distributors in April, and Johnson & Johnson in July.

In addition to the settlement, Attorney General Bonta continues to fight to hold Purdue Pharma and the Sackler family accountable for their contribution to the ongoing opioid crisis. In December, a district court reversed a New York bankruptcy court’s confirmation of the company’s bankruptcy reorganization plan.

Today’s deal also comes on the heels of a previously announced $573 million opioid settlement with McKinsey & Company, which will bring over $59 million to California for opioid abatement.

And Reuters reports that Johnson & Johnson (J&J) and three of the nation’s largest drug wholesalers and distributors have agreed to pay $589 million in settlement after hundreds of native tribes accused the companies of fueling the opioid crisis in their communities.

The three pharmaceutical distributors – Cardinal Health, AmerisourceBergen Corp., and McKesson Corp.- will pay more than $439 million in settlement over seven years. The Janssen-owned Johnson & Johnson has agreed to pay $150 million over two years.

This follows a 2019 lawsuit in which the drug distributors agreed to pay $75 million to resolve similar claims made by Cherokee Nation, one of the largest Cherokee tribes recognized by the federal government.

A 2016 report released by the National Congress of American Indians found that American Indians suffered the highest rate (8.4 overdose deaths per 100,000 people) of opioid overdoses, followed by whites (7.9 overdose deaths per 100,000 people).

All 574 federally recognized tribes will be able to receive money from the settlements even if they had not filed the lawsuits, according to Tara Sutton, an attorney for the tribes, in a Feb. 1 statement to The Wall Street Journal.

A new panel decision of Perez v Comprehensive Blood and Cancer Center -(ADJ 11965696)- the WCAB was required to discuss an analysis of the correct “date of injury” in a continuous trauma case, as well as the correct period for “imposition of liability” upon the industrial carriers. In this case the carrier (unsuccessfully) attempted to raise several theories that would shift liability to a period either before or after the last date of employment ending July 3, 2012.

Mericela Perez was thirty-five years old and employed as a Radiology Technician at Bakersfield, California by Comprehensive Blood and Cancer Center, during the period ending on July 3, 2012. It was found that she sustained injury in the form of an intracranial meningioma. The Opinion on Decision indicates that the WCJ believed the date of injury to be to be January 16, 2020, the date of the first report from David Baum, M.D., the internal medicine panel qualified medical examiner (PQME).

The panel pointed out that the date of injury for cumulative trauma claims “is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment.” (Lab. Code,1 § 5412.)

In turn, liability for a cumulative injury is determined under section 5500.5, which states that liability “shall be limited to those employers who employed the employee during a period . . . [of one year] immediately preceding either the date of injury, as determined pursuant to Section 5412, or the last date on which the employee was employed in an occupation exposing him or her to the hazards of the occupational disease or cumulative injury, whichever occurs first.

Although the period of liability for cumulative trauma claims is limited to the last year of injurious exposure, the actual date of injury under section 5412 may be different than applicant’s last date of work.

“Pursuant to section 5412, the date of a cumulative injury is the date the employee first suffers a ‘disability’ and has reason to know the disability is work related.” (Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227, 238 [58 Cal.Comp.Cases 323].) This is the date that sets the benefit rates, and timing and availability of benefits.

Disability has been defined as “an impairment of bodily functions which results in the impairment of earnings capacity.” (J.T. Thorp v. Workers’ Comp. Appeals Bd. (1984) 153 Cal.App.3d 327, 336 [49 Cal.Comp.Cases 224].)

Disability can be either temporary or permanent. (Chavira v. Workers’ Comp. Appeals Bd. (1991) 253 Cal.App.3d 463, 474 [56 Cal.Comp.Cases 631].) Whether there is temporary or permanent disability indicating the date of cumulative injury is a question of fact, which must be supported by substantial evidence. (Austin, supra, 16 Cal.App.4th at 233-235.)

Here the applicant filed an Application for Adjudication of Claim seeking benefits for industrial injury on February 22, 2019. Her date of knowledge is no later than the date of the application which was filed.

However, Dr. Baum stated that: “The carcinogenic potential of ionizing radiation is additive. The exposure at the podiatrist’s office, I believe, initiated the process which eventuated the meningioma 15 years later – hastened by 6 years of more intense exposure as an assistant radiation therapist at CBCC.”

Therefore, the last year of injurious occupational exposure ending on July 3, 2012 predates the section 5412 date of injury. “While defendant attempts to raise several alternative theories that would shift liability to a period either before or after the year ending July 3, 2012,” and the panel said that they “cites to no evidence in the record in support” of this assertion.”

Late last year, Mitchell, Genex and Coventry announced the creation of their new parent brand, Enlyte. This combination under the new Enlyte brand creates an organization in the Property & Casualty industry with technology innovation, clinical services and network solutions.

And Enlyte just released it’s new report on 2022 predictions for the workers’ compensation sector.

As we enter 2022 still mired in the COVID-19 pandemic, the workers’ compensation industry faces another challenging year, with payers continuing to cope with staffing shortages, evolving regulatory changes and more.

The Report is broken down into the following topics.

– – Staffing shortages throughout the country will affect a wide range of employers; insurance carriers and other claim organizations are facing this challenge as well. To reduce the risk associated with high turnover rates and onboarding new employees who have less industry experience than their predecessors, we anticipate the insurance industry will turn to technology, especially automation, to help fill some of the gaps.

– – The Mental Health Conversation Will Continue. Studies have shown the likelihood of injured employees being treated for depression are 45% greater than non-injured counterparts. And getting hurt on the job can increase the risk of mental hardship. “Having access to behavioral health specialists in workers’ compensation is no longer a ‘nice to have’ it’s a ‘must have’.”

– – Automation, Claims Staff Efficiency Will Be at the Forefront. As workers’ compensation payers continue to navigate challenges they are facing due to COVID-19, Enlyte anticipates many companies will focus on boosting claim staff efficiency through automation, outsourcing, technology and other tools in 2022.

– – The Pandemic Will Continue to Strain Hospitals, Providers. Shortages, combined with burnout among clinicians worn down by nearly two years of operating in full-time triage mode, limit the ability of some hospitals to offer the best care possible. Already, some non-urgent surgeries and other essential services are being postponed to accommodate COVID-19 patients.

– – Federal Regulatory and Legislative Changes Will Trickle Down to Workers’ Compensation. This year, the federal government will undertake major discussions on health-related topics including telemedicine and marijuana, that could have significant effects for the workers’ compensation industry.

– – The Regulatory Landscape Will Continue to Shift. In addition to the major initiatives happening at the federal level, there are a few other top-of-mind issue for 2022. While COVID-19-related regulatory changes, such as presumptions and vaccine mandates, will continue to take precedence, many state legislatures are playing catchup on the initiatives they had on the docket ahead of the pandemic.

– – Drug Price Transparency Will Be a Focus; Opioid and Addiction Concerns Will Continue. High-impact and specialty pharmaceuticals, drug-price transparency and regulation/price pressure, as well as continuing concerns around opioids and addiction, are just a few issues that will impact workers’ comp this year.

Details and embellishment of these topics can be obtained by reading the full Report on the Enlyte website.