Editor in Chief

Bernadette M. O'Brien is an attorney at law in California.

She is the author of the popular Lexis Nexis publication Labor and Employment in California; A guide to Employment Laws, Regulations and Practices Second Edition which has been in publication since 1992. The book covers an array of employment related issues including discrimination, sexual harassment, wage and hour, family Medical Leave Act, and Privacy in the workplace.

She is of counsel with the Law Offices of Floyd, Skeren & Kelly, LLP in the firm's Sacramento office.

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Rene Thomas Folse, JD, Ph.D. is an attorney at law and licensed psychologist in California.

He has practiced workers' compensation law for 35 years. His focus of practice involves claims of mental health injury where forensic psychology is involved in the evaluation of the claim. He has been an instructor and lecturer for many organizations and educational institutions and teches continuing education courses for attorneys, physicians and psychologists.

Recent Workers' Compensation News for Sep 04, 2015

Federal Judge Allows Uber Class Action to Proceed
Thu, 3 Sep 2015 07:44:04 - Pacific Time
Uber drivers scored a victory Tuesday when a federal judge ruled that they could move forward with a class-action lawsuit that seeks to designate them as employees, not independent contractors.

The LA Times reports that U.S. District Judge Edward Chen in San Francisco ruled for the plaintiffs, denying the on-demand transportation company's motion for a quick judgment and allowing the lawsuit to proceed as a class action.

The decision could have deep implications for Uber and other companies in the fast-growing on-demand economy, in which customers use smartphone apps to order services such as car rides and home delivery of groceries and restaurant food.

Uber now stands to lose far more than if the case had proceeded as a suit involving only three plaintiffs. In addition to potentially being on the hook for back wages, sick leave, expenses and benefits such as workers' compensation coverage, the company could be ordered to pay gratuities owed to thousands of former drivers. And that doesn't even touch on what a loss would mean for Uber's independent contractor-reliant business model, which has earned the company a $50-billion valuation.

Plaintiff lawyer Shannon Liss-Riordan, who is also representing Lyft drivers in a separate class-action lawsuit against Lyft, Uber's top competitor, said in a prepared statement that Chen's decision Tuesday was a "major victory" for Uber drivers. The class however is not as big as Liss-Riordan had hoped the judge would certify. The certified class excludes current and recent Uber drivers bound by Uber's 2014 arbitration clause. And one of the three plaintiffs, Thomas Colopy, was also found to not qualify. An Uber spokesperson said this leaves them with only a "tiny fraction of the class [of 160,000] the plaintiffs were seeking."

A trial date has not yet been set. Uber's spokesperson said the company plans to appeal. Read More...

CSLB Sting Finds Repeat Unlicensed Offenders
Thu, 3 Sep 2015 07:43:58 - Pacific Time
Eleven individuals were caught and may be charged with contracting without a license after a two-day sting operation conducted in Sacramento by the Contractors State License Board (CSLB). Among the suspects were two who didn’t let past contracting violations stop them from continuing to violate state contracting laws.

The undercover sting conducted by CSLB’s Statewide Investigative Fraud Team (SWIFT) took place at a single-family home in the Natomas area of Sacramento, with the assistance of the Sacramento County District Attorney’s Office. Four misdemeanor illegal contracting citations were issued on August 27, and seven on August 28, 2015.

CSLB stages sting operations year-round to crack down on unlicensed contracting, which feeds a multi-billion-dollar underground economy in California, and creates unfair business competition for licensed, law-abiding contractors.

Using a list of suspected unlicensed contractors developed mostly from online ads, local pamphlets, and a newspaper, SWIFT investigators posed as homeowners seeking bids for various home improvement projects that included fencing, painting, a concrete driveway, and tankless water heater installation.

Two men cited at the Sacramento sting were no strangers to CSLB. One had been caught in a 2012 sting operation in El Dorado County, was given a probation term and a fine, and had been previously denied a contractor license. He also is a registered sex offender. The other man, on probation for a 2014 unlicensed contracting conviction, tried to pass off a contractor license that did not belong to him.

"Time after time, the stings we conduct show that property owners need to be very careful about who they’re allowing in and around their home and family," said CSLB Registrar Cindi Christenson. "It’s very easy to use CSLB’s website to see if a bidder is a legitimate contractor who has undergone a background check, and has the necessary experience."

All suspects were issued a Notice to Appear in superior court for contracting without a license. Ten of the 11 were cited for illegal advertising (BPC 7027.1). Contracting law requires unlicensed operators to state in all advertising that they are not licensed; the penalty is a fine of $700 to $1,000. Read More...

Additional Surgery Likely for Meniscus Transplant Patients
Wed, 2 Sep 2015 08:56:26 - Pacific Time
A new study published in the Journal of Bone and Joint Surgery may help establish reserve estimates for future medical care following meniscus transplant surgeries. While most patients younger than age 50 experienced reduced pain and improved knee function following transplant surgery, many patients required additional surgery within 10 years

The meniscus is a wedge-shaped piece of fibrocartilage in the knee that acts as a shock absorber between the thighbone and shinbone. For younger patients with knee pain after loss of the meniscus, a meniscus transplant is performed to maintain a cushion between the two bones. An orthopedic surgeon executes the knee surgery by using an arthroscope to accurately place and stitch new, transplanted meniscal tissue.

In the new study, researchers followed 38 meniscal transplant patients under age 50, who did not have arthritis, for an average of 11 years following surgery. The estimated probabilities of transplant survival were 88% at five years, 63% at ten years, and 40% at fifteen years. Worst-case survival rate estimates were 73% at five years, 68% at seven years, 48% at ten years, and 15% at fifteen years. The mean time to failure was 8.2 years for medial transplants and 7.6 years for lateral transplants.

"This data provides surgeons with reasonable percentages that encourage delaying additional major knee surgeries related to a damaged meniscus," said Frank R. Noyes, MD, lead study author and founder of the Noyes Knee Institute at the Cincinnati Sports Medicine and Orthopaedic Center.

"However, the longer-term function of meniscus transplants remains questionable because the survivorship rate of the transplants decreases to between 40 and 15 percent at 15 years," said Dr. Noyes. "Patients should be advised that this procedure is not curative in the long-term and additional surgery will most likely be necessary." Read More...

Study Reviews Comp Patients Postoperative Narcotic Use
Wed, 2 Sep 2015 08:56:20 - Pacific Time
A new study published in Spine and summarized in an article published by Beckers' Spine Review examines the postoperative narcotic consumption among workers' compensation patients after minimally invasive transforaminal lumbar interbody fusion.

The researchers examined a cohort of patients undergoing single-level minimally invasive TLIF procedures for degenerative spine pathology from 2007 to 2013. There were 136 single-level, primary minimally invasive transforaminal lumbar interbody fusion procedures included in the analysis. Forty-six of the patients were workers' compensation patients - 33.8 percent. The workers compensation patients were younger on average - 47.8 years old compared with 57.9 years old among non-workers' compensation patients. They also had a lower comorbidity burden, at 1.85 compared with 3.42 among the non-workers compensation patients. Here are five things to know about the procedures:

1. The workers' compensation patients had longer procedure times. Their procedures were clocked at 135.2 minutes, compared with 118.9 minutes.
2. The hospital length of stay, estimated blood loss and day of discharge were similar between both groups of patients.
3. The average oral morphine equivalent consumption was similar between the two groups after adjusting for age, ethnicity, procedure times and Charleston Comorbidity Index.
4. Even though there are concerns that workers' compensation patients use more opioids, this study demonstrated the total narcotics consumption between workers' compensation and non-workers compensation are similar during the immediate postoperative period.
5. The amount of narcotics used could still vary from after the immediate postoperative period. Read More...

Santa Barbara Physician - The "Candyman" - Convicted on 79 Counts
Tue, 1 Sep 2015 10:24:27 - Pacific Time
A Santa Barbara-area physician who wrote numerous prescriptions for powerful painkillers, such as OxyContin, for "patients" - many of whom were drug addicts, and some of whom died from drug overdoses - was convicted after a jury trial on 79 drug trafficking charges. Julio Gabriel Diaz, 67, a Goleta resident who operated the Family Medical Clinic in Santa Barbara, was found guilty following a 2½-week trial in United States District Court. As a result of these verdicts, Diaz will face a maximum possible sentence of 1,360 years in federal prison. Diaz is scheduled to be sentenced on December 14.

Diaz, who was known to some "patients" as the "Candyman," was a prolific writer of prescriptions for highly addictive and dangerous drugs. In 2011, for example, Diaz wrote prescriptions for more than 1.7 million doses of painkillers. His "patients" typically paid cash, waited hours for a 10-minute visit with Diaz, and received prescriptions for powerful drugs that included opioids, anti-anxiety medications and muscle relaxants. Several doctors and pharmacists who testified during the trial said that they had never seen any doctor prescribe the combination and quantity of drugs prescribed by Diaz.

Diaz was found guilty of 79 counts of distribution of a controlled substance. Twenty-six of the charges relate to oxycodone (a drug often sold under the brand name OxyContin), 10 of the charges relate to methadone, seven of the counts relate to hydromorphone (a drug commonly sold under the brand name Dilaudid), 10 of the charges relate to fentanyl, 11 of the charges relate to hydrocodone (a drug often sold under the brand names Vicodin and Norco), 10 of the charges relate to alprazolam (a drug often sold under brand name Xanax), and five of the charges related to the distribution of various controlled substances to a minor. In relation to all 79 counts, the jury found that Diaz distributed the drugs outside of the usual course of professional practice and without a legitimate medical purpose.

According to the evidence presented at trial, doctors, nurses and other personnel with Santa Barbara Cottage Hospital wrote to the Medical Board of California and gave statements to investigators to complain about Diaz. Cottage Hospital doctors believed that Diaz posed such a threat that they prepared a spreadsheet documenting emergency room visits by patients who had been prescribed narcotics by Diaz.

Diaz was arrested in this case in January 2012. After his arrest, the state of California revoked his license after finding that he provided incompetent and grossly negligent care. Read More...

Orange County Corrections Officer Convicted of Comp Fraud
Tue, 1 Sep 2015 10:24:23 - Pacific Time
An Orange County employee was convicted and sentenced for committing insurance fraud by making false statements and concealing information related to his Workers’ Compensation claim. William Parker, 43, Corona, pleaded guilty to one felony count of making a fraudulent statement, five felony counts of insurance fraud. Parker was sentenced to six months in jail and paid over $41,000 in restitution.

On June 4, 2005, Parker was hired by the Orange County Probation Department (OCPD) as a Deputy Juvenile Corrections Officer. On Oct. 5, 2007, Parker was involved in a non-work related motor vehicle accident which caused injuries to his back and resulted in loss of time from work. Parker filed an insurance claim as a result of that automobile accident and received a settlement. Parker failed to disclose his back injury to the OCPD.

On Sept. 28, 2010, Parker suffered a back injury while working for the OCPD. Parker filed a Workers’ Compensation claim and was taken off work by his treating doctors after the county accepted the claim. The county was not aware of the previous back injury that Parker suffered in 2007.

On Jan. 31, 2012, Parker saw a medical examiner and told the doctor he still has daily pain. The doctor determined Parker had reached maximum medical improvement but would have to have permanent work restrictions. The defendant settled his Workers’ Compensation case and continued to see his primary doctor in the Worker’s Compensation claim from 2012 to 2014.

On Feb. 14, 2012, Parker was involved in a car accident where he was rear ended by another driver. The California Highway Patrol was called to the scene and reported minor property damage only.

On Feb. 23, 2012, Parker visited his primary doctor in the Workers’ Compensation case where he completed an updated medical questionnaire and intentionally omitted to tell the doctor about the motor vehicle accident he was involved in nine days earlier. Parker did not return to work until late February 2013, when he returned to a different position as an office specialist due to his claimed injuries.

On March 27, 2013, Parker filed a civil lawsuit for his personal injuries sustained in the car accident in 2012. The defendant was interrogated under oath and his deposition was taken. In the civil lawsuit, he made misrepresentations stating that he had completely recovered from the injuries in the Workers’ Compensation case and that he had returned to work as a correctional officer in order to collect a financial settlement from injuries the defendant claimed he sustained in the car accident. He stated that he was released in March 2012 but did not return to work until March 2013 because the county did not have a position for him. Read More...

Probation Officer Arrested For Fraud - While on Probation!
Mon, 31 Aug 2015 08:41:01 - Pacific Time
A former Los Angeles County probation officer, Robyn Palmer, 29, of Long Beach, was arrested on six felony counts of insurance fraud for allegedly forging documents to illegally collect disability insurance benefits while serving probation for another insurance fraud conviction.

Palmer was arrested while serving five years' probation following her conviction on 14 felony counts of insurance fraud, forgery, wire fraud, and grand theft in May 2014 for illegally collecting disability benefits from Allstate Insurance. Palmer was sentenced to five years' probation and ordered to pay restitution in the amount of $31,122.

"Palmer's nerve in allegedly collecting disability benefits fraudulently while serving probation for doing the same thing to another insurer is egregious," said Insurance Commissioner Dave Jones. "Crimes like these are costly to business, consumers and California's economy."

Department of Insurance detectives were contacted by American Family Life Insurance Company (AFLAC) after the insurer identified suspected fraud by Palmer. The investigation revealed that Palmer was allegedly collecting disability benefits totaling $24,000 from AFLAC while being prosecuted for the first crime against Allstate and continued to do so after her conviction and while on probation.

Palmer is being held at the Century Regional Detention Center in Lynwood, CA in lieu of $150,000 bail. This case is being prosecuted by the Los Angeles District Attorney's Office. If convicted, Palmer could be sentenced to five years in state prison. Read More...

Pacific Gas and Electric Again Under Safety Investigation
Mon, 31 Aug 2015 08:40:56 - Pacific Time
The state Public Utilities Commission unanimously approved a $2 million utility-financed wide-ranging investigation to gauge Pacific Gas and Electric Co.’s emphasis on safety in the aftermath of the San Bruno gas explosion. The panel previously imposed a historic $1.6 billion penalty for the Sept. 9, 2010, blast that killed eight people. Now the company’s string of post-San Bruno regulatory troubles suggested that utility was simply too big to regulate and might need to be broken up.

The investigation will amount to a deeper review of the companies organizational culture, governance, and operations, and the systemic issues identified by the National Transportation Safety Board. The safety board blames the 2010 explosion largely on PG & E’s "organizational failure" and lax safety leading up to the event. The safety arm of the commission will now work with an outside consultant to draft a report that will be reviewed by an administrative law judge in charge of the proceeding.

Meanwhile, the Los Angeles Times reports that the Public Utilities Commission itself -- beset by criticism that its officials have a too-cozy relationship with the utilities they regulate -- failed to respond to a search warrant for records related the California attorney general’s investigation of agency operations. A court document filed Aug. 7 states that "after multiple requests, and two months after the search warrant was served on CPUC, no records have been produced." Special Agent Reye Diaz of the attorney general’s office added: "No extension has been requested and no indication has been given as to when the records will be produced."

The attorney general is investigating secret talks between the commission and Southern California Edison, the state’s second largest investor-owned utility, that led to decisions that are costing utility customers billions of dollars. Read More...

WCAB Indicates Intention to Suspend Lien Claimant
Fri, 28 Aug 2015 08:39:33 - Pacific Time
On August 14, 2013, the WCJ in the case of Trinh v Tzeng Long USA Inc. issued an Order For Costs And Sanctions against Professional Lien Services, Inc., (PLS), ordering it to pay defendant’s costs and attorney’s fees in the amount of $2,355 along with a separate court sanction of $1,000. The sanctions were imposed for PLS’s bad faith and frivolous conduct in pursuing a trial on the issues of penalty and interest when it did not offer evidence at the trial adequate to meet its initial burden of proof.

Neither PLS nor its representative, Mike Traw petitioned for reconsideration or otherwise appealed the August 14, 2013 Sanction Order and it is now final and binding for all purposes.

Deputy Commissioner Rick Dietrich, Secretary of the Appeals Board, notified PLS in October 2013 that payment of the $1,000 court sanction was expected within ten days and further advised that failure to pay the sanction was grounds for suspending the privilege of appearing before the WCAB pursuant to section 4907. PLS replied that it was petitioning for reconsideration, but that was not the case.

Defendant also made unsuccessful efforts to recover the costs and attorney’s fees that PLS is obligated to pay as part of the Sanction Order. Thus the En Banc panel concluded "None of the efforts by the Appeals Board and the defendant have resulted in voluntary compliance with the August 14, 2013 Sanction Order by PLS and Mr. Traw, and it appears they are willfully disobeying the August 14, 2013 Sanction Order."

Section 4907(a)(2) provides for suspension of the privilege of appearing before the WCAB for, "failure to pay final order of sanctions, attorney’s fees, or costs, issued under Section 5813." The failure to comply with an order or regulation of the WCAB, including an order to pay a sanction, is an interference with the judicial process that provides good cause for suspending or removing the privilege of appearing before the WCAB.

For this reason it was ordered that "that the Appeals Board intends to suspend the privilege of Professional Lien Services, Inc., and Mike Traw of appearing before the Workers’ Compensation Appeals Board pursuant to Labor Code section 4907 for ninety (90) days unless good cause is shown why the suspensions should not be imposed." Read More...

Court of Appeal Affirms Termination of Injured LAPD Officer
Fri, 28 Aug 2015 08:39:28 - Pacific Time
On October 5 or 6, 2011 Richard Gurrola, a Police Officer II with the City of Los Angeles, suffered a back spasm, which was a flare-up of a prior work-related injury. He scheduled an appointment with Dr. Simon Lavi, who had treated the initial injury, but could not get an appointment earlier than October 11, 2011. Dr. Lavi’s office, which had previously backdated medical notes for Gurrola, assured him he would receive injured on duty (IOD) pay notwithstanding the delay in seeing the doctor.

What followed was numerous communications between Gurrola and the LAPD about his status, and the documentation that was needed from his doctors. Finally Gurrola was served with a personnel complaint and notice of relief from duty and proposed removal, suspension or demotion issued by Chief of Police Charlie Beck, charging him with one count of being absent from work without leave and one count of providing false statements during the investigation into his absence.

There was conflicting testimony from seven witnesses on the board of rights hearing on several points. The board of rights found Gurrola guilty of count 1 and not guilty of count 2 and he was terminated. He appealed his termination and the Court of Appeal affirmed in the unpublished case of Gurrola v City of Los Angeles.

In a mandamus proceeding to review an administrative order, the determination of the penalty by the administrative body will not be disturbed unless there has been an abuse of its discretion. In considering whether an agency abused its discretion, "the overriding consideration in these cases is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[harm] to the public service.’ [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence."

Using this standard the Court of Appeal concluded "Although the penalty of termination is harsh, these facts do not present the exceptional case in which reasonable minds cannot differ: The board properly found that public service was compromised by Gurrola’s two-month absence from work without leave, requiring other personnel to cover his shifts. In addition, the evidence supports a finding Gurrola’s actions were consistent with a pattern of improperly taking extended absences from work." Read More...

Past Week News Archive

Benefits of Spinal Epidural Injections Remain Controversial: Wed, 26 Aug 2015 08:48:56 - Pacific Time: Read More...

CWCI Report Confirms Decade of Relentless Cost Increases: Wed, 26 Aug 2015 08:12:47 - Pacific Time: Read More...

Implant Fraud Strikes Again!: Tue, 25 Aug 2015 10:27:50 - Pacific Time: Read More...

Insurer to Pay $6 Million Fine: Tue, 25 Aug 2015 10:27:45 - Pacific Time: Read More...

Owner of Three LA Clinics Pleads Guilty in Fraud Case: Mon, 24 Aug 2015 08:02:52 - Pacific Time: Read More...

Quoting and Binding Comp Online Grows in Popularity: Mon, 24 Aug 2015 08:02:46 - Pacific Time: Read More...

More Major Publishers Admit to Fraudulent Journal Articles: Fri, 21 Aug 2015 09:40:42 - Pacific Time: Read More...

Jury Convicts Operators of Gardena Ambulance Company: Fri, 21 Aug 2015 09:40:35 - Pacific Time: Read More...

Uber Sued Over Lack of Workers' Compensation Insurance: Thu, 20 Aug 2015 12:07:36 - Pacific Time: Read More...

One Week Left Before Medical and Provider Fraud Symposium: Thu, 20 Aug 2015 12:07:28 - Pacific Time: Read More...