Tag: 2023 News

Long COVID, also known as post-acute COVID-19 syndrome (PASC), is a condition where people experience symptoms of COVID-19 for weeks, months, or even years after their initial infection. The symptoms can be mild or severe, and can affect any part of the body. The World Health Organization (WHO) defines Long COVID as “the continuation or development of new symptoms 3 months after the initial SARS-CoV-2 infection, with these symptoms lasting for at least 2 months with no other explanation.”

Roughly 25 million people in the U.S. and over 17 million people in Europe have long COVID symptoms, with many more in other parts of the world.

The Workers’ Compensation Insurance Rating Bureau of California (WCIRB) has released an updated COVID-19 report, Medical Treatments and Costs of COVID-19 Claims and “Long COVID” in the California Workers’ Compensation System – 2023 Update. The study provided an early assessment of the prevalence of “long COVID” (post-acute sequelae of SARS-CoV-2 infection, PASC) in the workers’ compensation system. The study estimated that approximately 11% of COVID-19 claims with an initial mild infection received medical treatment for long COVID symptoms over a 4-month post-acute care period. The rate of long COVID spiked to about 40% for those hospitalized for the initial infection.

A recent study from the Workers Compensation Research Institute (WCRI) found that 7 percent of workers with COVID-19 claims received treatment for long COVID after the acute period of the infection. While long COVID prevalence was the highest among workers who were hospitalized during an acute stage of disease, even some workers with limited medical care early after the infection developed long COVID symptoms.

For these Long COVID cases, the claim administrator will likely need to resolve the permanent disability component, and apportionment. Labor Code § 4663(a) provides that “(a) Apportionment of permanent disability shall be based on causation.” That begs the question about causation of Long COVID under this standard. Perhaps a newly published study by the Genome-wide Association Study of Long COVID is a good start at an answer.

The COVID-19 Host Genetics Initiative (COVID-19 HGI) ) was launched to investigate the role of host genetics in COVID-19 and its various clinical subtypes. It also conducted the first genome-wide association study (GWAS) specifically focused on Long COVID. This part of the study includes data from 24 studies conducted in 16 countries, totalling 6,450 individuals diagnosed with Long COVID and 1,093,995 controls.

The new research, which was an international collaboration between dozens of scientists, describes how some people carry a version of a single gene, FOXP4, that is associated with developing long COVID. FOXP4 has been previously associated with COVID-19 severity, lung function, and cancers, suggesting a broader role for lung function in the pathophysiology of Long COVID.

Conversely, scientists estimate that over 20% of people who get infected with COVID never have any symptoms – and a portion of them never even know they were infected. Now a new study published in Nature on July 19 says their genetics might be why the virus didn’t make them sick.

Some people have a version of a gene in their immune system called HLA-B that protects them from feeling the effects of the virus. The study found that people with this special HLA-B variant are 2 to 8 1/2 times more likely to be asymptomatic than those without the variant.

Jill Hollenbach, an immunologist at the University of California, San Francisco, was one of the scientists who led the research on asymptomatic COVID. She says she was “surprised and excited” about the new long COVID findings.

“The fact that the authors were able to detect this association [between the FOXP4 gene and long COVID], I think, is spectacular,” Hollenbach says.

Dr. Hollenbach would obviously be a local expert to consult for further information on possible apportionment in a claim for permanent disability in a Long COVID case.

Dalila Tututi filed two Applications for Adjudication of Claim against Big Merryluck GG. On October 4, 2019, PCT Medical Services Gilbert filed a lien for medical treatment expenses incurred by or on behalf of applicant, pursuant to Labor Code section 4600.  On December 9, 2019, the parties requested a lien trial on unresolved liens, including that of PCT Medical Services.

On January 7, 2020, the parties proceeded to lien trial, at which time Ms. Airhana Hernandez ostensibly appeared on behalf of PCT Medical Services. However, Ms. Hernandez was unable to produce a Notice of Representation.

The WCJ provided lien claimant’s representative additional time in which to produce the required notice, but the lien representative was unable to provide the notice by the end of the morning’s trial setting. The WCJ then issued a Notice of Intention to Dismiss Lien Claim or Lien Balance because “no compliant Notice of Representation per Title 8 CCR §10868, §10751 was filed at or before time of hearing.”

Lien claimant filed an objection to the Notice of Intention to Dismiss requesting discretionary relief pursuant to Code of Civ. Proc., § 473(b) for mistake, inadvertence, surprise or excusable neglect. However the WCJ issued an Order Dismissing Lien Claim or Lien Balance, stating “Even though a timely objection dated 1-17-2020 was filed on 1-17-2020, this objection does not show good cause for non-appearance by lien claimant or their representative at the Lien Trial on 1-7-20.”

The Lien Claimant’s Petition for Reconsideration of the Dismissal was granted, and the Order Dismissing was reversed in the panel decision of Tututi v Big Merryluck GG -ADJ11296374; -ADJ11296239 (August 2023).

Non-attorney representatives who appear on behalf of parties in workers’ compensation proceedings are required to file a valid notice of representation as required by WCAB Rule 10751, and WCAB Rule 10868, which specifies the requirements pertaining to a Notice of Representation involving lien claimants.

Violation of the appropriate rules may give rise to monetary sanctions, attorney’s fees and costs under Labor Code section 5813 and rule 10421.

“Here, there is no dispute that Ms. Hernandez was unable to provide a valid Notice of Representation at the time of lien trial. Following the issuance of the court’s Notice of Intention, and review of lien claimant’s objection, the WCJ dismissed the lien with prejudice.”

Code of Civ. Proc., § 473(b) permits the trial court to relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect. A motion seeking relief under section 473 is addressed to the sound discretion of the trial court; its decision will not be overturned on appeal absent a clear showing of abuse of discretion. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478 [243 Cal. Rptr. 902]; Elston v. City of Turlock (1985) 38 Cal. 3d 227, 233 [211 Cal. Rptr. 416].)

The WCAB panel noted that discretion, “however is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.”

The court of appeal confirmed that the section 473(b) may afford relief to other parties to workers’ compensation proceedings in Fox v. Workers’ Comp. Appeals Bd. (1992) 4 Cal.App.4th 1196 [57 Cal.Comp.Cases 149] (Fox).

“We observe that while WCAB Rule 10751 requires the non-attorney representative making an appearance to provide a valid notice of representation, it does not specify a remedy for failure of compliance, and it does not mandate dismissal of the underlying lien claim.”

“We also observe that following notice of the failure to provide the required notice of representation on the day of trial, lien claimant attempted to remedy the deficiency by filing a Notice of Representation in EAMS later that same day.”

“In summary, we are persuaded that lien claimant has taken reasonable action to remedy the procedural deficiencies in its trial appearance, and that lien claimant promptly sought relief from its dismissal for failure to comply with our Rules, and that the public policy in favor of disposition on the merits warrants the rescission of the dismissal of the lien claim.”

The San Jose owner of a flooring company was sentenced to county jail last week to county jail and ordered to pay over $580,000 in restitution for fraud, after being caught under reporting his payroll to avoid paying thousands of dollars in insurance premiums.

An investigation showed Martin Helda had under reported his All Bay Floor payroll avoiding $140,000 in insurance premiums and did not pay his employees about a $1 million in owed overtime.

Helda, 35, pleaded guilty to three fraud counts, including Workers Compensation Premium Fraud, Employment Development Department fraud, and wage theft. In addition to paying restitution to victims, he was sentenced to four months in county jail and 200 hours of community service.

The investigation began after an insurance audit revealed that Helda’s payroll did not match the number of people he had working for him. This case was investigated in conjunction with the newly formed Workers’ Exploitation Task Force (WE TF). DA Investigators utilized partnerships with the Department of Industrial Relations and the State Labor Commission to find justice for victims of wage theft.

A DA investigation uncovered that Helda withheld time and a half overtime wages to at least 18 employees, including one employee who was owed approximately $60,000. However, there could be as much as $1.7 million owed to all employees including those not known to the DA’s Office.

According to his biography posted on IdeaMensch.com Martin Helda “took the California State Contractors License Exam and was one of the youngest people ever in the state to pass the exam, and from there he launched All Bay Area Floors, a commercial flooring company.”

“He grew the business over the next 12 years to be one of the largest flooring companies in the Bay Area, with over 60 employees. Recently, Martin has launched his 2nd business, Bay Area Concrete Polishing, which he plans to be as successful has his first.”

However, at the time of his arrest in April 2021, media sources said he claimed he only had one employee.

Victims who have yet to be identified in this matter may file a wage claim on the Labor Commissioner’s Office website or at any of their office locations.

District Attorney Jeff Rosen said: “Whatever you think you might be saving in the short term will cost you a lot more than money in the long term. Fraud doesn’t pay.”

On August 17, 2015, Evelyn Rivera went to see a doctor at Kaiser Permanente Hospital becaus.e she had injured her left shoulder. She told the doctor her shoulder had begun hurting after stretching it four or five days earlier. In February 2016, she had surgery on her shoulder to repair a torn rotator cuff.

About a year after the initial appointment, Rivera submitted a workers’ compensation claim for an injury to the same shoulder. One doctor examined her on October 19, 2016, and another examined her in August .cling bin. The second doctor reviewed Rivera’s prior medical records and concluded he did not believe her injury was work related. Her workers’ compensation claim was later rejected, but the County of Riverside was billed for her visits to the two doctors.

In July 2018, the Riverside County District Attorney’s Office filed a complaint charging Rivera with two felony counts of insurance fraud under Insurance Code section 1871.4, subdivision (a)(1) (count 1) and Penal Code section 550, subdivision (a)(1) (count 2). Rivera was arraigned in Riverside County Superior Court on September 21, 2018, pled not guilty,

On March 15, 2019, at the Riverside County Superior Court preliminary hearing. Kurtis Lackman, a workers’ compensation investigator, testified about his investigation into Rivera’s case.

Lackman said he began his investigation after the district attorney’s office received a referral from the county, which had already undertaken an investigation. He interviewed the doctors who examined Rivera after she made her workers’ compensation claim. He also interviewed Rivera. His testimony supported the facts set out above. After his testimony, the judge determined “it does appear that the offenses that are currently charged in Counts 1 and 2 have been committed. There’s sufficient cause to believe the defendant guilty of those particular offenses, so I will order that she be held to answer to same.”

The preliminary hearing resulted in a finding of probable cause, thus the People filed an information with the same charges now in Riverside County Superior Court., and Rivera pled not guilty at her arraignment.

A settlement conference was held in October 2021, two and a half years later. Rivera asked the judge to reduce the charges to misdemeanors under section 17(b) and grant her misdemeanor diversion under Penal Code section 1001.95 (section 1001.95), avoiding the need for a trial.

Later Rivera filed a formal motion to reduce the charges to misdemeanors and grant diversion, provided Rivera first paid restitution of approximately $20,000. The prosecutor objected, arguing the court did not have authority under section 17(b) to reduce the charges to misdemeanors until Rivera had pled guilty or been convicted.

The judge agreed with the defense that under the “Williamson Rule” the prosecution could not charge Rivera under sectioAn 550(a)(1) because the more specific section 550(a)(6) governs. The court granted the motion and set aside count 2.

On December 15, 2022, Rivera paid $20,000 in restitution and Riverside County Superior Court Judge Taylor reduced count 1 to a misdemeanor under section 17(b) and granted diversion under section 1001.95, with conditions that she perform 20 hours of community service and attend a life skills class.

The People filed a petition for a writ of mandate seeking to vacate the order setting aside the section 550(a)(1) count and the order reducing the Insurance Code count to a misdemeanor.overturn the order reducing count 1 to a misdemeanor and the order setting aside count 2.

The Court of Appeal agreed with Rivera and the trial court that the People were required to prosecute this workers’ compensation fraud case under the more specific section 550(a)(6). It therefore denied the People’s petition for a writ of mandate as to that order in the unpublished case of People v Superior Court (Rivera) -E080532 (August 2023)

The People charged Rivera under section 550(a)(1), which states it is unlawful to “[k]nowingly present or cause to be presented any false or fraudulent claim for the payment of a loss or injury, including payment of a loss  or injury under a contract of insurance.” (Italics added.) The gravamen of the complaint and information was that Rivera knowingly presented a false claim for the payment of benefits available under the workers’ compensation law.

Rivera argues, and the Court of Appeal agreed, that the allegation against her also falls under section 550(a)(6), which makes it unlawful to “[k]nowingly make or cause to be made any false or fraudulent claim for payment of a health care benefit.” (Italics added.) Workers’ compensation benefits like funds paid to cover medical expenses are “health care benefits,” which means section 550(a)(6) applies specifically to her case.

The only differences between the two statutory provisions is that 550(a)(1) applies to payments for any losses or injuries and section 550(a)(6) applies to payments for health care benefits, a subset of the general category.

Rivera argued that the well established 1954 California “Williamson Rule” (In re Williamson, 43 Cal. 2d 651, 276 P.2d 593) justified the ruling of the trial court. The Williamson Rule is a legal doctrine in California criminal law that states that if a general statute includes the same conduct as a special statute, and thus conflicts with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.

The Court of Appeal concluded that “It follows that the Williamson rule applies, and we should infer the Legislature intended that conduct like Rivera’s be prosecuted exclusively under section 550(a)(6).” … “The trial judge was correct to set aside the section 550(a)(1) count, and we will therefore deny the People’s petition for a writ of mandate as to that order.”

After a two-month trial, this week a jury awarded former UC San Diego oncologist Dr. Kevin Murphy more than $39 million in his whistleblower claim against the University of San Diego.

According to the report by the San Diego Union-Tribune, the dispute between Murphy and UCSD began in the fall of 2015, when philanthropist Charles Kreutzkamp died of cancer and left $10 million to the university “for cancer research.” The university planned to use it as a general gift for its Moores Cancer Center. Murphy said the donor had intended to fund Murphy’s experimental brain stimulation treatment, known as PrTMS. He complained the school was attempting to divert the funds.

Eventually, the school steered the money to Murphy’s research. But he said school officials thwarted his attempts to set up clinical trials and ignored his official complaints about it. The school said Murphy violated policies, wrongly used donated funds to set up a research clinic off campus and enriched himself and his companies.

According to investigative reporting by non-profit Inewsource.com, the UC system launched the litigation battle in 2020 when it sued Murphy, alleging he committed fraud and enriched himself using the $10 million donation to the university meant for research. It claimed at least $6.9 million of that donation was gone but no research was ever performed.

Murphy countersued, claiming UCSD led a campaign against him when he spoke up about the university funds being directed away from their intended purpose.

Those two lawsuits were combined into a massive trial that ended this week with a $39 million verdict in favor of Dr. Murphy. The jury deliberated for fewer than eight hours before returning a verdict Wednesday afternoon.

In addition to ruling in favor of Murphy, the jury also found that the doctor had breached his duty of loyalty to UCSD and acted against its interests. The jury awarded about $67,000 in favor of the UC system, which covered money Murphy had earned outside the university that he had failed to turn over as required.

The UC system asked for more than $8 million in damages, including civil penalties for violations of the False Claims Act and years of Murphy’s salary paid to him while he was disloyal to the public institution. UCSD had also sued for damages against Murphy’s private medical clinic and medical software company, but the jury found that the companies did not owe any damages.

Murphy said he would use the funds to run the trials he had always intended to conduct using the $10 million donation to UCSD.

The ruling is the latest of several whistleblower cases his laywer, Mark T. Quigley at Greene Broillet & Wheeler, has won against the University of California. According to the firms website, .

In another high-profile whistleblower retaliation trial, Mr. Quigley says that he attained a $2 million verdict against the UC Regents and the former Dean of the UC Irvine School of Medicine. The plaintiff in that case, Mark Linskey, M.D., is a tenured full professor at the UC Irvine School of Medicine and the former Chair of the Department of Neurological Surgery. Mr. Quigley said he resolved the case for a total of $3 million in damages and also obtained a Court Order reinstating Dr. Linskey to the Department of Neurological Surgery and residency program.

In another case, Scheer vs UC Regents, (2022) 76 Cal App. 5th 904, a California State Appeals Court recently reinstated one of Mr. Quigley’s whistleblower retaliation cases which involves a top UCLA pathology doctor’s claims that he was fired in retaliation after raising concerns about workplace mismanagement. The plaintiff, Dr. Arnold Scheer, alleged in his 2017 lawsuit that the University of California Regents and two former supervisors fired him after he identified numerous issues and violations concerning patient safety, mismanagement, fraudulent conduct, sub-standard facility conditions, lost specimen samples, and more.

A Los Angeles County Superior Court judge dismissed all of Dr. Scheer’s claims at the summary judgment stage, but the three-judge panel unanimously revived the case that asserts three causes of action: violations of a state whistleblower protection law, Labor Code section 1102.5, a whistleblower law specifically protecting University of California employees, Government Code section 8547.10; and a health care worker whistleblower protection law, Health, and Safety Code section 1278.5.

An in another case, attorney Quigley achieved a $10 million settlement in Pedowitz v. UC Regents, a whistleblower-retaliation case. The Los Angeles Times reports that Robert Pedowitz, originally recruited to UCLA in 2009 to run the orthopedic surgery department, sued UCLA, the UC Regents, fellow surgeons, and senior university officials because they failed to act on his complaints about conflicts of interest. Pedowitz alleged that they later retaliated against him for speaking out.

According to the LA Times story, Pedowitz stated he became “concerned about colleagues who had financial ties to medical-device makers or other companies that could unduly influence their care of patients or taint important medical research.” Pedowitz raised concerns about the financial dealings of several doctors, including an orthopedic surgeon that testified at trial about receiving $250,000 in consulting fees in 2008 from device maker Medtronic. Pedowitz also took issue with physicians who included UCLA logos on personal websites without getting official permission.

After raising his concerns, however, Pedowitz said he was pressured to step down as department chairman in 2010. He accused the university of retaliation, stating he was denied patient referrals and prevented from participating in grants and other activities, LA Times reports