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Tag: 2023 News

New Emergency Temporary Standard to Protect Workers from Silicosis

The Occupational Safety and Health Standards Board just approved an emergency temporary standard on respirable crystalline silica to protect workers from silicosis. The standard will go into effect on December 29, 2023.

Cal/OSHA proposed the emergency temporary standard to protect workers in the stone fabrication industry from silicosis. Workers who breathe in silica particles can develop silicosis – an incurable, progressive disease that causes serious and fatal health effects. The workers most at risk are those who cut artificial stone countertops.

The California Department of Public Health has identified 95 cases of workers developing silicosis since 2019, 10 of whom have died from the disease.

The emergency temporary standard includes important requirements to protect workers engaged in high-exposure tasks such as cutting, grinding, polishing and cleanup of artificial stone containing more than 0.1% crystalline silica and natural stone containing more than 10% crystalline silica.

Employers will be required to implement the following new protections when workers perform these tasks:

  • Methods of Compliance
    • Use wet methods without exception.
    • Properly handle all waste materials.
    • Monitor air to confirm respirable crystalline silica levels are below the action level.
    • Do not:
      • Use compressed air.
      • Dry sweep.
      • Allow employees or equipment to move through dust.
      • Rotate employees to reduce exposure.
  • Respiratory Protection
    • Use a full-face, tight-fitting, powered air-purifying respirator (PAPR), or equally protective alternative.
    • Use an organic vapor cartridge for artificial stonework, with certain exceptions.
    • Use a supplied air respirator under certain conditions.
  • Housekeeping
    • Employ safe clean-up methods without exception.
  • Communicating with Employees
    • Ensure training and information is appropriate for the language and literacy of employees.
    • Include text pertaining to permanent lung damage and death in English and Spanish on signs posted at regulated areas.
    • Train employees on symptoms of respirable crystalline silica exposure and how to prevent exposures.
    • Encourage reporting of symptoms of respirable crystalline silica exposure without fear of retaliation.
  • Exposure Assessment
    • Conduct exposure monitoring at least every 12 months to assess the effectiveness of exposure controls.
  • Regulated Areas
    • Conduct all “high-exposure trigger tasks” in a clearly designated area with signage warning of respirable crystalline silica hazards.
  • Imminent Hazards
    • Cal/OSHA must issue an Order Prohibiting Use (OPU) when dry operations are observed.
    • Cal/OSHA may issue an OPU when violations are found related to prohibited activities, respiratory protection, reporting of silicosis and carcinogen reporting.
  • Silicosis Reporting
    • Employers must report employees with confirmed silicosis or lung cancer to Cal/OSHA and CDPH.
    • Healthcare providers contracted by employers to evaluate their employees must report confirmed silicosis cases to Cal/OSHA.

Complete details on the emergency temporary standards are posted on Cal/OSHA’s website.

Police Officer Fired for Cause Found Ineligible for Disability Retirement

James Suess, was employed as a police corporal by the City of Pomona. In May 2016, the Pomona Police Department Internal Affairs Unit received a citizen complaint against Suess, filed by Vasken Asadourian, a relative of one of Suess’s neighbors, alleged that Suess assaulted him.

On July 9, 2016, Suess’s neighbor, Neshan Boymoushakian, filed another complaint against Suess regarding his harassment of his family. Suess was notified of both complaints and was interviewed during both investigations, and was placed on paid administrative leave pending completion of these investigations.

On June 7, 2017, the City served Suess with a Notice of Intent to Terminate on the basis of misconduct including battery, unabated harassment of his neighbor, and dishonesty during his interviews.

Suess requested a pre disciplinary meeting with his department, which was held on July 18, 2017. At that meeting, Suess suggested he “suffered physical, mental and emotional trauma’ and need[ed] proper care and treatment.” While it was unclear to Pomona Police Chief Paul Capraro whether Suess was suggesting his conduct was the result of a disability, he “did not provide any documentation substantiating [his] alleged disability or request any accommodations related to this incident near the time of incident or early in the investigation.”

On August 3, 2017, the City notified Suess he was terminated from his employment as a police corporal effective August 4, 2017. The City provided Suess with notice of his right to appeal the decision within 15 days. Suess did not appeal.

In April 2017, several months before his termination, Suess filed a workers’ compensation claim based on his involvement in a 2012 officer-involved shooting incident which occurred on February 26, 2012. After a high-speed chase on that date, a suspect pointed a shotgun at Suess and another police officer from a different jurisdiction (West Covina) who pursued the suspect into Pomona. The other officer shot and disarmed the suspect. The suspect was later convicted of attempted murder of Suess and other officers.

Suess did not request psychological services at the time. He continued to perform his duties as a police officer until his off duty misconduct led to disciplinary proceedings in 2016. His workers’ compensation claim was “denied based on a violation of [the] statute of limitations L[abor] C[ode ]5410, and the lack of current substantial medical evidence.” As with his termination, Suess did not appeal the denial of his workers’ compensation claim.

In April 2019, twenty months after his termination of employment from the City, Suess filed a disability retirement election application with respondent CalPERS based on posttraumatic stress disorder, among other disabling conditions. CalPERS determined he was “not eligible for disability retirement.” Accordingly, on July 22, 2019, CalPERS denied Suess’s application. An ALJ affirmed the denial of his CalPERS claim after an administrative appeal challenging CalPERS’s decision.

His petition for a writ of mandate was denied by the Superior Court. And the decision of the trial court was affirmed by the Court of Appeal in the unpublished case of Suess v. California Public Employees Retirement System -G062730 (December 2023).

On appeal Suess contends that the ALJ misapplied the Haywood (Haywood v. American River Fire Protection District (1998) 67 Cal.App.4th 1292) and Smith cases (Smith v. City of Napa (2004) 120 Cal.App.4th 194), which Suess argues “were inapposite to this case.” The Court of Appeal disagreed.

As explained in Haywood, “where, as here, an employee is fired for cause and the discharge is neither the ultimate result of a disabling medical condition nor preemptive of an otherwise valid claim for disability retirement, the termination of the employment relationship renders the employee ineligible for disability retirement . . . .”

“Nor are disability retirement laws intended as a means by which an unwilling [-to-faithfully-and-competently-perform] employee can retire early in derogation of the obligation of faithful performance of duty. The pension roll is a roll of honor – a reward of merit, not a refuge from disgrace; and it would be an absurd construction of the language creating it to hold that the intention of the Legislature was to give a life annuity to persons who, on their merits, as distinguished from mere time of service, might be dismissed from the force for misbehavior.”

In Smith, the appellate court held that a terminated employee may qualify for industrial disability retirement if he or she had a “matured” right to do so before his or her termination for cause.

Smith recognized an exception to the rule set forth in Haywood: “[c]onceivably, there may be facts under which a court, applying principles of equity, will deem an employee’s right to a disability retirement to be matured and thus survive a dismissal for cause.” But Smith held the disability evidence must be “unequivocal” to constitute a matured right.

Suess claims Smith and Haywood are distinguishable because he was “deprived of the ability to present medical evidence of his condition [by] a violation by the City [of] its own policy regarding the provision of professional counseling to officers following an officer-involved shooting.” Suess suggests he would have had more compelling evidence of a disabling PTSD condition if the City had adhered to that policy. He also suggests CalPERS “abused its discretion” in denying his application for disability retirement “without obtaining medical evidence available to it from Respondent City of Pomona.”

The Court of Appeal again disagreed. The ALJ correctly observed in her ruling, “an applicant for disability retirement has the burden of proving . . . that he is entitled to it.” (Glover v. Board of Retirement (1989) 214 Cal.App.3d 1327, 1332.) Suess did not establish an unequivocal matured right to disability retirement under Smith where his own testimony indicated he was not incapacitated by the 2012 shooting.

$1.1M in Wages Recovered for Workers on a Public Works Project

The Labor Commissioner’s Office collected $1.1 million in wages and penalties resulting from a prevailing wage assessment against general contractor Stronghold Engineering and its subcontractor, Perry Coast Construction, both based in Riverside.

The wages collected will compensate 74 workers for underpayment of prevailing wages owed for their time working at the Monterey Conference Center, as well as nearby Portola Plaza in Monterey.

California Public Works laws were enacted to protect and benefit workers and the public. The laws guarantee minimum wages on publicly funded projects and provide opportunities for employment to apprentices.

The law requires that workers on construction projects financed with $1,000 or more in public funds must be paid no less than the prevailing wage,” said Labor Commissioner Lilia García-Brower. “These workers were cheated out of their hard-earned wages, and contacted my office to hold Stronghold Engineering and Perry Coast Construction accountable for their actions.”

The Labor Commissioner’s Office opened its investigation in May 2017 after a complaint of public works violation was filed by a worker claiming underpayment of prevailing wages, as well as unpaid overtime and holiday rates, fringe benefits, and travel expenses.

The investigation also found that Perry Coast Construction failed to comply with apprenticeship standards or with public works contractor registration requirements.

The Labor Commissioner’s Office cited Stronghold Engineering and Perry Coast Construction in October 2020 for underpayment of prevailing wages to 74 workers, liquidated damages and interest on the wages, and training funds.

Both the contractor and subcontractor filed a joint request for review in December 2020, but eventually agreed to resolve all claims with the Labor Commissioner’s Office for $1.1 million to be paid to the affected workers, and withdrawing their joint request for review in July 2023.

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, 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).

Trusted Medical Records Exchange Framework (TEFCA) is Now Operational

The U.S. Department of Health and Human Services (HHS), through the Office of the National Coordinator for Health Information Technology (ONC), announced that nationwide health data exchange governed by the Trusted Exchange Framework and Common AgreementSM (TEFCA) is now operational.

ONC has led a multi-year, public-private process alongside its Recognized Coordinating Entity®, The Sequoia Project, Inc., to implement TEFCA, which was envisioned by the 21st Century Cures Act. As a result, patients will have increased access to their records, and health care providers and plans can improve their secure exchange of electronic health information.

The interoperability framework, called TEFCA, was mandated by the 21st Century Cures Act back in 2016 and was designed to create an infrastructure to enable data sharing between health information networks. The framework provides the policies, procedures and technical standards necessary to exchange patient records and health information between providers, state and regional health information exchanges and federal agencies.

In many ways, I feel like we’re watching the Big Bang occur in 2023,” said Health and Human Services (HHS) Secretary Xavier Becerra said during an event held at HHS headquarters in Washington, D.C. on Tuesday.

Five organizations were officially designated as Qualified Health Information Networks (QHINs) during the HHS event on Tuesday – eHealth Exchange, Epic Nexus, Health Gorilla, KONZA and MedAllies. Those five organizations have gone live with TEFCA exchange, and two others are completing their implementations

These designated QHINs can immediately begin supporting the exchange of data under the Common Agreement’s policies and technical requirements. QHINs are the pillars of TEFCA network-to-network exchange, providing shared services and governance to securely route queries, responses, and messages across networks for eligible participants including patients, providers, hospitals, health systems, payers, and public health agencies.

QHINs are the pillars of TEFCA network-to-network exchange, providing shared services and governance to securely route queries, responses, and messages across networks for eligible participants including patients, providers, hospitals, health systems, payers and public health agencies.

Epic customers, including 498 hospitals, have already pledged to join TEFCA.”As of this week, over 200 hospitals and around 3,000 clinics that use Epic plan to be early adopters of this framework,” Rob Klootwyk, director of interoperability for Epic Nexus, a subsidiary of Epic,said during the event. “At full rollout, we do expect to help around 2,700 hospitals and 70,000 clinics go live on TEFCA.”

In a Health Affairs Forefront blog, Micky Tripathi, Ph.D., national coordinator for health information technology and Mariann Yeager, CEO of The Sequoia Project, said TEFCA, going live marks “one of the most important milestones in our nation’s digital health history.”

“In February 2023 we announced that TEFCA would be operational by the end of the calendar year, and we are delighted to achieve this goal” said Micky Tripathi, Ph.D., national coordinator for health information technology. “This would not have happened without tremendous stakeholder support, considerable investment of resources and expertise by the QHINs, and the hard work of the RCE and ONC staffs.”

Designating these first QHINs is just the beginning,” said Mariann Yeager, CEO of The Sequoia Project and RCE lead. “Now, we hope to see the rapid expansion of TEFCA exchange as these pioneering networks roll-out the benefits of TEFCA to their customers and members, while additional QHINs continue to onboard.

Collectively, these QHINs have networks that cover most U.S. hospitals and tens of thousands of providers; they process billions of annual transactions across all fifty states. With these QHINs working together under TEFCA, their users will now be able to connect with each other, regardless of which network they’re in,” Tripathi and Yeager wrote.

Common Agreement Version 2.0, which is anticipated to include enhancements and updates to require support for Health Level Seven (HL7®) Fast Healthcare Interoperability Resources (FHIR®) based transactions, is actively under development and scheduled to be adopted by the QHINs within the first quarter of 2024.

Attendees at the 2023 ONC Annual Meeting in Washington, DC on December 14, 2023, will have the chance to hear two plenary sessions providing TEFCA updates. Learn more at

Jury Awards Ex-Kaiser Nurse $41.49 Million in Retaliation Suit

MyNews LA and other media sources report that a Los Angeles jury has awarded $41.49 million to a former nurse who said Kaiser Foundation Hospitals and Kaiser Foundation Health Plan Inc. retaliated against her for complaining about patient safety and quality of care and fired her in 2019 over a minor policy violation.

The jury reportedly awarded Maria Gatchalian $11.49 million in compensatory damages, including $9 million for the emotional distress, plus $30 million in punitive damages.

Maria had the courage to speak up about patient safety but Kaiser tried to silence her,” plaintiff’s attorney David deRubertis said. “This diligent jury spoke in a loud and clear voice telling Kaiser that it needs to put patients over profits. We hope this verdict will get Kaiser to focus more on patient safety and quality of care and less on the business of medicine.”

The Los Angeles Times reported that David deRubertis has been lead counsel in single-plaintiff employment settlements totaling almost $55 million, with an average settlement of over $2 million for individual employment cases. In the employment class action arena, deRubertis claims he has secured sizeable confidential pre-litigation resolutions in matters such as #MeToo cases and high-level executive whistleblowing cases.

Gatchalian worked for the Woodland Hills Kaiser Permanente Hospital since 1989, first as an NICU registered nurse, then as a Neonatal Intensive Care Unit charge nurse following her promotion in 2006.

In their court papers, Kaiser attorneys maintained that the 30-year employee admitted that in 2019 she took off her shoes and socks and placed her bare feet on an isolette, a medical device that holds sick or premature newborn babies. The defense attorneys included a photo of Gatchalian doing so in their court papers.

“Plaintiff’s conduct was unacceptable, made even more so by the fact that she was a charge nurse, a leader of the nursing team and a long-term employee who knew better,” Kaiser lawyers stated.

Having lost confidence in Gatchalian, Kaiser “made the difficult decision to terminate her employment” in 2019, according to the defense lawyers’ court papers.

But according to the suit filed in April 2021, Gatchalian raised repeated concerns to management about quality of care and patient safety, mostly stemming from Kaiser’s alleged understaffing. Multiple witnesses said during trial that the facility was undermanned.

Gatchalian maintained that Kaiser management repeatedly discouraged her from submitting formal complaints through the normal process, which her attorneys maintained was done so Kaiser could avoid conducting an investigation and taking corrective action. The plaintiff’s lawyers further maintained that Kaiser placed the value of profits ahead of patient well-being.

We stand by her termination and are surprised and disappointed in the verdict,” Murtaza Sanwari, senior vice president and area manager for Kaiser Permanente Woodland Hills/West Ventura County, told Becker’s Hospital Review in a statement. “Kaiser Permanente plans to appeal this decision and will maintain our high standards in protecting the health and safety of all our patients.”

We work hard to make Kaiser Permanente a great place to work and a great place to receive care,” Mr. Sanwari said. “The allegations in this lawsuit are at odds with the facts we showed in the courtroom.”

“To be clear, this charge nurse’s job was to be a leader for other nurses, ensure the standards of care were followed and to protect the neonatal babies entrusted to our care. She was terminated in 2019 following an incident where she was found sitting in a recliner in the neonatal intensive care unit, on her personal phone and resting her bare feet on an isolette with a neonatal infant inside. Neonatal intensive care units are critical care units designed for critically ill babies most often born prematurely and very susceptible to infections.

Exclusive Remedy Applies to City, and Related Political Entities

Matthew Vann, a firefighter with the San Francisco Fire Department (SFFD), responded to an emergency on Spear Street between Market Street and Mission Street in the City and County of San Francisco.

Louis Yu, a bus driver with the San Francisco Municipal Transportation Agency (SFMTA), then drove a bus through the location of the active emergency. The bus went over a firehose, which became entangled with the bus’s wheels and stretched until it broke off the fire engine it was attached to.

When the firehose broke away, it hit Vann’s legs, sweeping him off his feet and causing him to slam backwards onto the ground. His helmet flew off, and the back of his head struck the street surface. As a result, he sustained catastrophic injuries, including a traumatic brain injury, a fractured left clavicle, an internal hemorrhage in his right eye, and damage to his throat and vocal chords.

On November 4, the City sent Vann a “Notice Regarding Disability Pay/Labor Code section 4850 benefits.” The notice stated that the “City and County of San Francisco is handling Van’s workers’ compensation claim on behalf of SF Fire Dept.,” and that he was receiving workers’ compensation benefits for the injuries he sustained in the November 2, 2020 incident.

On November 8, Van filed a form complaint against the City and Yu, alleging causes of action for motor vehicle negligence, general negligence, and negligence per se. The complaint is sparse on detail: it alleges “Defendants negligently operated an SF Muni Coach 8800,” before briefly describing how the incident caused appellant’s injuries, and also alleges “Defendants violated [Vehicle Code sections 21707 and 21708].”

Defendants filed a demurrer on various grounds, including that the Workers’ Compensation Act (§ 3200 et seq.) provides the exclusive remedy for Vann’s claims against the City as his employer (§§ 3600, subd. (a), 3602, subd. (a)), and against Yu as his co-employee (§ 3601, subd. (a)). The the trial court issued an order sustaining the demurrer to the complaint without leave to amend.

The Court of Appeal affirmed the trial court in the published case of Vann v. City and County of S.F. -A165231 (December 2023).

Section 3600, subdivision (a) provides that, with exceptions not relevant here, an employer’s liability to pay compensation under the Workers’ Compensation Act is “in lieu of any other liability whatsoever” if specified “conditions of compensation concur . . . .” (§ 3600, subd. (a); Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal.5th 993, 1006.) So, when the statutory conditions for recovery are met, the employer is immune from civil damages liability for on-the-job injuries because workers’ compensation is the injured employee’s “exclusive remedy.” (§§ 3600, 3601, 3602, subd. (a).)

A parallel exclusive remedy provision is section 3601, subdivision (a), which “prohibits actions against coemployees for injuries they cause when [acting within the scope of their employment.]” (Hendy v. Losse (1991) 54 Cal.3d 723, 730.)

As to Yu, Vann asserted he and Yu were not coemployees because (1) Vann was employed by San Francisco Fire Department (SFFD), while Yu was employed by San Francisco Municipal Transportation Agency,(SFMTA), and (2) SFFD and SFMTA are separate legal entities akin to separate businesses within a multiunit corporate enterprise. As to the City, Vann argued there were no facts at that procedural juncture to support the conclusion that the City, as opposed to SFFD, was his employer as a matter of law. His arguments treat the City, SFMTA, and SFFD as three separate legal entities.

Bauer v. County of Ventura (1955) 45 Cal.2d 276, 288-289 (Bauer), which both parties cite, is instructive on whether a public entity is independent or a subsidiary of another entity. The Supreme Court rejected the “assumption that the district is a governmental agency separate and distinct from the county,”

Factors that may be considered in determining if an entity is independent include whether there is “[a]n express statutory declaration that the entity is a body corporate and politic”; whether the entity has “[a] governing body separate from that of the city, county, or district”; or whether it has “[s]tatutory power to own property, levy taxes, or incur indebtedness in its own name.” (California Governmental Tort Liability Practice (Cont.Ed.Bar 4th ed. Cal. 2023) § 3.5, citing Bauer, supra, 45 Cal.2d at pp. 288-289; Johnson v. Fontana County Fire Protection Dist. (1940) 15 Cal.2d 380, 385’387; Elliott v. County of Los Angeles (1920) 183 Cal. 472, 474-475; Anaheim Sugar Co., supra, 181 Cal. at pp. 217−220.)

The Court of Appeal concluded that additional case authorities and arguments “compels the conclusion that because SFFD and SFMTA are merely parts of the same entity, the City, it is the City that effectively employs both appellant and Yu. It follows that workers’ compensation provides the exclusive remedy for appellant’s claims against the City as his employer (§§ 3600, subd. (a), 3602, subd. (a)), and against Yu as his coemployee (§ 3601, subd. (a)). To the extent appellant attempts to draw an analogy between SFMTA and SFFD and two separate business entities within a multiunit corporate enterprise, such an analogy was rejected in Walker and Colombo. (See Walker, supra, 97 Cal.App.2d at pp. 903-904; Colombo, supra, 3 Cal.App.4th at p. 598.) And we reject it here.”

Hospitals Failing to Comply with Price Transparency Law

The California Attorney General issued a consumer alert reminding Californians of their right to access hospital price information online pursuant to federal regulations that went into effect on January 1, 2021.

According to the Attorney General announcement, “a significant number of hospitals, including those in California, have refused to comply. In fact, the regulations were amended in 2022 to increase penalties for noncompliance in response. Recent reports have indicated that many hospitals are still not in compliance. With today’s alert, DOJ strongly urges hospitals to comply with these laws and encourages consumers to assist DOJ’s efforts in tracking noncompliance by filing a complaint with the department here.”

The federal government has strong laws in place to provide healthcare transparency, which includes requiring hospitals to publish online annually the price of all their items and services, such as supplies and procedures, room and board, facility fees, physician professional charges, and shoppable services, such as imaging and laboratory services, medical and surgical procedures, and outpatient clinic visits. In today’s alert, Attorney General Bonta urges Californians seeking medical attention to do their research to learn more about the price transparency information available to them, including:

– – A Description of Each Item, Service, or Shoppable Service: This may include any code used by the hospital for accounting or billing purposes.
– – Gross Charge: The charge that applies absent any discounts.
– – Payer-Specific Negotiated Charge: The discounted rate the hospital has negotiated with a third-party payer, such as your medical insurer.Each charge must be clearly associated with the name of the third-party payer and plan.
– – De-Identified Minimum Negotiated Charge: The lowest charge the hospital has negotiated with a third-party payer, including with your medical insurer.
– – De-Identified Maximum Negotiated Charge: The highest charge the hospital has negotiated with a third-party payer, including with your medical insurer.
– – Discounted Cash Price: The price for those who pay cash. Hospitals that do not provide a cash discount for a shoppable service must provide the gross charge for the service.

If a hospital is not complying with these requirements, a complaint can be filed with the Centers for Medicare & Medicaid Services (CMS) here. You may also file a consumer complaint with the California DOJ here.

More hospital price transparency information through CMS.

QME With 3,005 WCAB Liens worth $29.4 M Faces 40 Fraud Charges

Dr. Gary Martinovsky graduated from the University of California, Berkeley, as a bachelor of science and from Stanford University as a medical doctor. He completed a residency in anesthesiology and acute care at Stanford School of Medicine, and a postgraduate fellowship in Pain Medicine at the University of California, Davis. He holds board certification in Pain Medicine from the American Board of Anesthesiology.

NBC Bay Area reports that Dr. Gary Martinovsky was first arrested on Thursday, March 20, 2014 and charged with insurance fraud and unlawful dispensing of medicine. About half of his patients at the time were injured workers, and investigators claimed he was bilking the California workers’ compensation system.

Inspectors for the Alameda County District Attorney’s Office, the agency behind an undercover investigation into Martinovsky, accused him of running a medical mill and using injured workers for his own financial gain. They would claim in court documents that his office billed an insurance company for services he never performed and that Martinovsky had a “cavalier attitude” toward dispensing drugs.

But the case against Martinovsky was dismissed in Alameda because it had been filed in the wrong county.

Prosecutors then filed a a single felony count for violating Cal. Penal Code § 550(a)(7) (knowingly submitting a claim for a health care benefit not used by, or on behalf of, the claimant) was filed in Contra Costa County Superior Court. During the preliminary hearing, which was not completed, the charge was reduced to a misdemeanor. That case was dismissed after Martinovsky completed a one-year diversion program. He never entered a guilty plea or admitted guilt of any kind.

In 2016 Dr. Martinovsky filed a civil rights lawsuit in federal court against the Alameda County District Attorney’s Office and an investigators for the Department of Insurance. He alleged that because “of the search of the clinic, and the defamatory statements made by Defendants, word spread quickly through the regional medical community, legal professionals and insurance industry that Dr. Martinovsky had been arrested and charged with felony drug and insurance fraud charges. The effect was immediate and devastating for Plaintiffs’ otherwise spotless reputation and growing medical practice, and caused severe emotional distress”.

The federal civil rights case was resolved and dismissed with prejudice based upon a stipulation and a settlement between the parties in May 2018 for undisclosed terms.

Now, on December 7, 2023, the San Francisco District Attorney Brooke Jenkins announced that a 51 year old Doctor Gary Martinovsky, who lives in San Francisco; and his 68 year old office assistant and mother-in-law, Raisa Rikoshinsky, who lives in San Bruno; and one of the businesses he owns, Integrated Pain Care (IPC), have been criminally charged with 40 violations of insurance fraud under (PC 550(a)(5), PC 550(a)(7), and PC 550(a)(8)), for fraudulent billing, double billing, and billing for services not rendered.

Gary Martinovsky MD is listed as a QME in Anesthesiology, and also in Pain Managment. DWC Medical Unit records reflect 10 Northern California Offices for each specialty, or a total of 20 addresses. According to the California Department of Industrial Relations, Dr. Martinovksy has 3,005 liens worth $29,443,467 outstanding as of October 2023.

As alleged in court documents in this newest case, Dr. Martinovsky, IPC, and Raisa Rikoshinsky allegedly filed liens with the State of California Division of Workers Compensation asking for payment of bills which had already been paid in full or in part.

California’s Workers Compensation law allows a doctor to file a lien against an insurance provider for payment for services rendered to an injured worker, where the bill has not been paid.

In support of the filed liens, prosecutors allege the defendants submitted fraudulent documents and/or failed to disclose that they had already received payments for the billed services. In addition, Dr. Martinovsky and IPC billed three insurers for services not rendered, by claiming $625 numerous times for services not provided to injured workers.

In terms of number of liens filed from 2022 to the present,  prosecutors claim Integrated Pain Care was second in the State of California only to the Employment Development Department, the state agency that administers California’s Unemployment Insurance, Disability Insurance, and Paid Family Leave programs and maintains records for more than 19 million workers.

Dr. Martinovsky and Ms. Rikoshinksy are scheduled to be arraigned on January 12, 2024, at 9A in Department 10 at the Hall of Justice. If convicted of all charges, Dr. Martinovsky and Ms. Rikoshinsky each face over five years in State Prison.

This case was developed through an investigation conducted by the San Francisco District Attorney’s Office Economic Crimes Unit, with the California Department of Insurance assisting in the arrests.

Although charges have been filed, this remains an active investigation. Anyone with information is asked to call the San Francisco District Attorney’s Investigations Tip Line at 1-628-652-4362. You may remain anonymous.

Google to Pay Workers $27M – the Largest PAGA-Only Settlement to Date

Google has reached a $27 million settlement with its California employees who accused the tech giant of unfair labor practices, setting a record for the largest agreement of its kind, according to California state court documents. The settlement covers individuals who worked at Google and Alphabet from Oct. 16, 2015, to Sept. 15, 2023, excluding temporary employees, vendors, or contractors and those of senior vice president positions or higher.

In the December 4 settlement approval order, the trial court granted attorneys’ fees of $9 million to plaintiffs’ counsel Outten & Golden LLP and Baker Curtiz & Schwartz PC. Named plaintiffs John Doe and DeWayne Cassel each will receive $20,000 in incentive awards with $10,000 each to Paola Correa and David Gudeman.

The net $17.66 million settlement will be split with 75% going to the California Labor and Workforce Development Agency and 25% to the class. Each of the 96,939 aggrieved employees receives a fixed payment of $20 and a max payment of $79 depending on pay periods, the plaintiffs said in a supplemental filing. The settlement is effective Feb. 3.

Plaintiffs in this case alleged that Google, Inc. and Alphabet, Inc., and Adecco USA, Inc. require their employees to comply with various confidentiality policies. John Doe, David Gudeman, and Paola Correa, who were current and former Google and Adecco employees, sued Google and Adecco under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.), alleging the employers’ confidentiality policies restricted their employees’ speech in violation of California law.

The trial court sustained defendants’ demurrers without leave to amend, concluding plaintiffs’ claims were preempted by the National Labor Relations Act (NLRA or Act) (29 U.S.C. § 151 et seq.) under San Diego Bldg. Trades Council v. Garmon (1959) 359 U.S. 236, 244-245 (Garmon). In September 2020, the California Court of Appeal reversed the trial court in the published case of Doe v. Google, Inc., 54 Cal. App. 5th 948.  It held that the claims fall within the local interest exception to Garmon preemption and may therefore go forward.

Plaintiffs’ third amended complaint alleged 17 causes of action under PAGA based on defendants’ confidentiality policies. Plaintiffs’ confidentiality claims fall into three subcategories; restraints of competition, whistleblowing, and freedom of speech.

In their competition causes of action plaintiffs alleged that Google’s confidentiality rules violated state statutes by preventing employees from using or disclosing the skills, knowledge, and experience they obtained at Google for purposes of competing with Google. For example, the policies prevented Googlers from disclosing their wages in negotiating a new job with a prospective employer, and from disclosing who else works at Google and under what circumstances such that they might be receptive to an offer from a rival employer.

Plaintiffs’ whistleblowing causes of action alleged that Google’s confidentiality rules prevent employees from disclosing violations of state and federal law, either within Google to their managers or outside Google to private attorneys or government officials. (See Bus. & Prof. Code, §§ 17200 et seq.; Lab. Code, § 1102.5.) They also allege the policies unlawfully prevent employees from disclosing information about unsafe or discriminatory working conditions, or about wage and hour violations.

In their freedom of speech claims, plaintiffs alleged that defendants’ confidentiality rules prevent employees from engaging in lawful conduct during non-work hours and violate state statutes entitling employees to disclose wages, working conditions, and illegal conduct.

The 2016 lawsuit was among the first glimpses of employee activism that swept through the tech industry over the past seven years. It stemmed from the termination of a worker at Google-owned Nest, who was fired for posting complaints about the company’s management on Facebook.

In the years that followed, Google, Facebook, Netflix and others faced employee walkouts, whistleblowers, and public letters, which led to firings, town halls, and revamped policies as tech companies grappled with how to contend with increasingly vocal staff.

The California Labor and Workforce Development Agency submitted comments regarding the proposed settlement agreement in this action in response to the Court’s invitation. The Agency told the court the $27 million settlement in this action “is the largest PAGA-only settlement, and second largest civil penalty recovery, in a PAGA action to date.”

And the agency went on to say “to our knowledge this is the first PAGA case which has obtained remedies of this nature, which clearly further labor law enforcement. And undoubtedly, as Plaintiffs state, ‘knowledge of this $27,000,000 PAGA settlement against Google should serve to deter Alleged Speech Restrictions by other employers.’ “

Woman to Serve 15 Years for $24M DME Sales & Repair Fraud

A South Bay woman has been sentenced to 180 months in federal prison for billing Medicare more than $24 million by submitting fraudulent claims for medically unnecessary durable medical equipment – mostly power wheelchairs (PWC) – and PWC repairs, many of which were never performed, the Justice Department announced today.

Tamara Yvonne Motley, 55, a.k.a. “Tamara Ogembe,” of Redondo Beach, was sentenced Tuesday by United States District Judge Stanley Blumenfeld Jr., who also ordered her to pay $13,107,422 in restitution as well as an additional $2,300 in special assessments.

At the conclusion of a five-day trial, a jury on June 27 found Motley guilty of 20 counts of health care fraud, two counts of aggravated identity theft, and one count of conspiracy to commit money laundering. Judge Blumenfeld ordered her remanded into federal custody that same day after the verdict was read.

From July 2006 to August 2014, Motley was the de facto owner of the Hawthorne-based Action Medical Equipment and Supplies. From January 2013 to November 2016, Motley was the de facto owner of the Ventura-based Kaja Medical Equipment & Supply. Both companies were enrolled with Medicare in the names of Motley’s out-of-state relatives.

Motley orchestrated a scheme in which she paid marketers for patient referrals and then directed them to take patients to corrupt physicians, who prescribed medically unnecessary durable medical equipment, such as PWCs, that Motley’s companies used to submit fraudulent bills to Medicare.

In January 2011, when Medicare changed the reimbursement rules for PWCs to make the upfront payments less lucrative to suppliers, Action switched to billing Medicare for PWC repairs, and continued that scheme at Kaja once Action was shut down. These repairs were not medically necessary not only because the patients did not need the PWCs to begin with, but also because those repairs were not needed to make the PWCs serviceable in any event and often were never performed. These repairs were expensive – often billed for $3,000 to $4,000 each – and accounted for nearly half of Action’s billings and almost all of Kaja’s.

Over an eight-year period, Action billed Medicare more than $18.2 million for DME – most for PWCs, but also for PWC accessories, knee braces and back braces – and the repair or replacement of PWCs. Medicare paid Action nearly $10.3 million.

Between July 2013 and November 2016, Kaja billed Medicare $6.3 million, primarily for PWC repairs. Medicare paid Kaja approximately $2.8 million for those claims.

“[Motley] manipulated those around her to serve her criminal ends,” prosecutors argued in a sentencing memorandum. “She used relatives and employees to conceal her role in the scheme, and even used her infant’s caretaker to carry out the illegal activities of her scheme. She took advantage of vulnerable Medicare beneficiaries in far-flung places like Calexico who were elderly and often non-English speaking. She deceived inspectors to preserve her companies’ accreditation with Medicare.”

Two other defendants were convicted in this case:

– – Cynthia Karina Marquez, 48, of Paramount, who worked as an office manager at both Action nd Kaja, pleaded guilty in December 2019 to two counts of making false statements affecting a health care program. She received a time-served sentence, was placed on supervised release for three years, and was ordered to pay $9,886,646 in restitution.
– – Juan Roberto Murillo, 47, of Montebello, who worked at both medical supply companies as a repair technician, pleaded guilty in November 2019 to one count of conspiracy to commit money laundering. He was sentenced to three years’ probation and was ordered to pay $2,504,119 in restitution.

The United States Department of Health and Human Services, Office of Inspector General; the FBI; and the California Department of Justice investigated this matter.Assistant United States Attorneys Kristen A. Williams of the Major Frauds Section and David H. Chao of the General Crimes Section prosecuted this case.